Opinion
No. 05-04-00912-CV
Opinion issued April 29, 2005.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-02788-A.
Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Parkchester Holdings, Inc. and Concorde (U.S.A.) Development Investments, Inc. d/b/a Concorde Realty Development (collectively, Concorde) appeal the trial court's no-evidence summary judgment granted in favor of Carrier Corporation. Concorde raises two issues on appeal arguing Carrier's motion did not comply with civil procedure rule 166a(i) and the trial court erred in granting summary judgment because Concorde presented more than a scintilla of evidence. We affirm the trial court's judgment.
Concorde purchased Carrier air conditioning units from Mitchell Technical Sales. When problems arose with the units, Concorde sued both Mitchell and Carrier. The claims against Carrier alleged violations of the Deceptive Trade Practices Act (DTPA). Specifically, Concorde alleged that Carrier had misrepresented characteristics, uses, and/or benefits of the air conditioning units, misrepresented the standard or quality of the air conditioning units, and failed to disclose information about the air conditioning units that Carrier knew at the time of the transaction, intending to induce Concorde into a transaction it would not have entered into had the information been disclosed.
Carrier's no-evidence summary judgment left no claims pending against Carrier. Accordingly, after granting Carrier's summary judgment, the trial court severed all claims against Carrier from the main cause of action.
Carrier moved for summary judgment under rule 166a(i), alleging Concorde did not have evidence under the DTPA to support its claims. See Tex. R. Civ. P. 166a(i). Carrier identified three types of misrepresentations in Concorde's claims that qualified as a false, misleading or deceptive act and argued Concorde did not have evidence
• that Carrier represented anything to [Concorde] whatsoever regarding the units in question;
• that anyone from Carrier ever spoke to, corresponded with, or in any way communicated with [Concorde] prior to [Concorde] making the decision to purchase the Carrier units;
• that Carrier knew who the units would eventually be sold to, or for what purpose; and
• that Carrier knew or should have known the purpose for which the units would be used, where they would be installed, or how they would be installed.
Concorde responded, objecting to the form of Carrier's motion and providing five exhibits with its response. The trial court heard Carrier's motion and took it under advisement before hearing it again on April 2, 2004. The trial court granted the motion for summary judgment.
The record of the April 2, 2004 hearing is before this Court.
Form of Carrier's Motion
In its second issue, Concorde argues that Carrier's summary judgment motion did not comply with rule 166a(i) in that it did not specify the elements about which it complained Concorde had no evidence. We disagree.
Carrier argues this issue should not be considered for appellate review because no explicit ruling on Concorde's objections is in the record. Even if we were to find the ruling implicit, this Court has held that the legal sufficiency of a summary judgment motion can be complained of even for the first time on appeal. See Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 563 (Tex.App.-Dallas 2004, pet. filed). We accordingly address this issue.
A no-evidence summary judgment motion must state the specific elements as to which there is no evidence. Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The elements required to be shown in an action under the DTPA are: (1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3) these acts constituted a producing cause of the consumer's damages. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). A plaintiff claiming nondisclosure under the DTPA must prove four elements: (1) a failure to disclose information concerning goods or services; (2) the information was known at the time of the transaction; (3) such failure was intended to induce the consumer into a transaction; and (4) the consumer would not have entered the transaction had the information been disclosed. See Tex. Bus. Com. Code Ann. § 17.46(b)(24) (Vernon Supp. 2004-05).
In its motion, Carrier argued Concorde lacked evidence that Carrier represented anything to Concorde-thereby arguing Concorde had no evidence that Carrier had engaged in a "false, misleading, or deceptive act," the second element for a DTPA violation. Further, Carrier contended Concorde had no evidence that Carrier communicated with anyone at Concorde prior to its decision to make the transaction, knew who the units would eventually be sold to, for what purpose, where the units would be installed, or how they would be installed. We conclude this was sufficient to argue that Concorde had no evidence that Carrier had knowledge of a need to disclose information regarding Concorde's use of the air conditioning units at the time of the transaction. Further, the argument sufficiently raises the issue that Concorde had no evidence that Carrier failed to disclose information intending to induce Concorde into a transaction. Accordingly, we conclude the language in Carrier's motion sufficiently stated the elements about which Carrier complained. We overrule Concorde's second issue.
Summary Judgment
In its first issue Concorde argues the trial court erred in granting summary judgment because Concorde produced more than a scintilla of evidence regarding the complained-of elements. Based on the exhibits before us for review, we disagree.
We review a no-evidence summary judgment under familiar standards-the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.). A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.). We review the evidence in the light most favorable to the nonmovant and resolve all doubts in its favor. Id.; General Mills, 12 S.W.3d at 833.
An appellate court is to consider only the evidence before the trial court at the time of summary judgment motion hearing. Lawrence v. Lawrence, 911 S.W.2d 443, 446 (Tex.App.-Texarkana 1995, writ denied). In conducting its review, the appellate court likewise does not consider evidence filed late without leave of the trial court. J.E.M. v. Fidelity Cas. Co. of New York, 928 S.W.2d 668, 672 (Tex.App.-Houston [1st Dist.] 1996, no writ). Concorde attached five exhibits to its response to Carrier's motion for summary judgment: (1) Jensen deposition testimony; (2) Carrier documents; (3) McLeod affidavit; (4) Carrier discovery responses; and (5) Rathman affidavit. The trial court did not grant leave for Concorde to file any other evidence. The trial court did not consider all of the exhibits filed with Concorde's response as being before it for review. Accordingly, not all of the exhibits are before this Court. And Concorde does not complain on appeal of the trial court's failure to consider the evidence below.
Regarding the Jensen deposition testimony, Concorde did not direct the trial court to any page number, quote, or other place within the over one-hundred pages of the Jensen testimony to indicate where evidence was raised. A party responding to a no-evidence motion for summary judgment has the burden of pointing out to the trial court where the issues raised in its response can be found in its offered evidence. See Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex.App.-Fort Worth 2004, pet. denied); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex.App.-Houston [1st Dist.] 1996, no writ) (citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989)). During the summary judgment hearing, the following exchange took place:
Concorde: I know you're not looking at Mr. Jensen's testimony, but it clearly references —
COURT: If you don't point that out in your response, the Court does not look at that.
Concorde: I understand. I understand. . . .
Accordingly, the record shows the trial court did not consider Jensen's deposition testimony as part of the summary judgment evidence, and Concorde was aware of this.
Further, not all of McLeod's affidavit is before this Court. After Concorde quoted the third-from-the-last paragraph of McLeod's affidavit, the trial court stated it was inadmissible because it contained "hearsay, conclusions, and no factual statements." The trial court further explained to Concorde, "This is your expert's conclusion about what should have happened, not what did happen." As Concorde continued to discuss its exhibits, the trial court several times responded, "You're not responding to the no-evidence points in the motion for summary judgment." We have reviewed the remaining evidence attached to Concorde's summary judgment response. Without considering Concorde's arguments in its brief regarding the Jensen deposition testimony, Concorde argues that it brought forth evidence that Carrier was linked to the sale of the air conditioning units in question. However, this is not evidence of a "false, misleading, or deceptive act" or evidence that Carrier represented anything to Concorde. Concorde also argues the records from Carrier show Carrier was "involved in the selection of the air conditioning units in question, installation, and repairs." But there is no evidence that Carrier communicated with anyone at Concorde prior to the transaction. There is also no evidence that any alleged failure to disclose information was intended to induce Concorde into a transaction. The communications in the Carrier documents are between Carrier and Mitchell. The only reference to a communication between Concorde and Carrier concerns a phone call that was expected to occur. That reference is on an April 2002 fax-after the transactions were made in August 2000. The reference in that April 2002 fax that one visit to the job had occurred offers no evidence of when that happened or what communication occurred at that time. The only other reference to a site visit is a fax that states that John Holloman from Carrier would be at the "jobsite" that afternoon, but there is no information regarding whether that visit occurred or what transpired at that time.
We conclude Concorde has not brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. See Crocker, 95 S.W.3d at 419. We resolve Concorde's first issue against it. Having resolved both of Concorde's issues against it, we affirm the trial court's judgment.