Opinion
03-22-00059-CV
08-30-2024
Levi Pate and Nicole Pate, Appellants v. Fun Town RV San Angelo, LP, Appellee
FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY NO. D180534C, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING.
Before Byrne, Chief Justice, Kelly and Smith, Justices.
MEMORANDUM OPINION
Edward Smith, Justice.
Appellants Levi and Nicole Pate (the Pates) appeal the trial court's take-nothing summary-judgment in favor of Fun Town RV San Angelo, LP (Fun Town) on the Pates' claims for violations of the Deceptive Trade Practices Act (DTPA) arising from their purchase of a travel trailer. In their first six issues the Pates argue that the trial court erred in granting Fun Town's hybrid summary-judgment motion concerning their DTPA claims for failure to disclose and misrepresentation, breach of warranty, and unconscionable actions. The Pates next argue that the trial court erred in granting summary judgment on their "claims" for revocation, rescission, or restoration based on Fun Town's disclaimer of warranties and because the Pates seasonably revoked acceptance of the travel trailer. Finally, the Pates argue that Fun Town cannot prove that the Pates failed to offer to return any benefit that they derived from the travel trailer. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Levi Pate testified by deposition that he purchased a 2017 Vengeance travel trailer from the Fun Town dealership in San Angelo in June 2017. Levi testified by deposition that he was familiar with travel trailers because he previously owned other recreational vehicles. He stated that he spoke on the telephone with Fun Town sales staff about different inventory that was available before he visited Fun Town in person. Levi testified that his first visit to Fun Town lasted approximately two hours. Levi further testified that, during this visit, he and his family spent about thirty minutes in the travel trailer they ultimately purchased, and "everything looked great in the travel trailer."
Levi testified by deposition that during his second visit, Fun Town representatives once again walked through the travel trailer with him and also answered all of his questions about the travel trailer before he took possession of it. Levi testified that during the fifteen-minute walk-through, "[e]verything was opened up, all the slide-outs were opened and electricity was turned on." Levi stated that the Fun Town representatives "walked through [and] showed me everything-how to use everything," and went through the features of a fifth wheel. During his deposition, Levi agreed that he was able to complete the walk-through of the travel trailer before he purchased it. Levi also testified that he signed a pre-delivery inspection checklist that reflected that he completely inspected the unit and that items in the travel trailer were working properly at the time of purchase. Levi testified that before he took possession of the travel trailer, Fun Town changed the hitch on the travel trailer to pair with the hitch on Levi's new truck.
Levi testified that his wife Nicole was not present during his second visit to Fun Town. Levi signed Nicole's name to the purchase paperwork for the travel trailer during the second visit.
During his deposition, Levi was asked if he "had an opportunity to work the slide-outs" of the travel trailer during the walk-through on the day of purchase. He responded, "I don't recall," but acknowledged "I could have" worked the slide-outs if he chose to.
Levi stated that after he brought the travel trailer home, he noticed that the linoleum floor of the travel trailer was torn from the slide-out. Levi testified that shortly after the purchase in June 2017, he took the travel trailer on a ten-day vacation to Colorado without performing any repairs on it. After the Pates returned from their vacation, Levi brought the travel trailer into Fun Town for the first service appointment available, which was at the end of August, and left the travel trailer at Fun Town. Hector Martinez, the General Manager for the Fun Town dealership in San Angelo, testified by deposition that, pursuant to Fun Town's policy, the Pates could have continued to use their travel trailer instead of leaving it at Fun Town for several months while the service department ordered the parts necessary to complete the repair. In January 2018, Fun To wn 's service department moved the travel trailer from San Angelo to its Cleburne dealership to complete the repair. Fun Town repaired the travel trailer at no cost to the Pates.
The Pates do not allege how many times they operated the slide-out after they purchased the travel trailer before the linoleum tore. In their summary-judgment response, the Pates assert that the slide-out ripped the linoleum sometime after they took possession of the travel trailer, and they called Fun Town the following morning.
In February 2018, while the travel trailer was at the Cleburne dealership, the Pates' attorney sent Fun Town a DTPA demand letter notifying Fun Town of claims for violations of various provisions of the DTPA and demanding actual damages, attorney's fees, and that Fun Town take back the travel trailer, rescind the sale, and refund the Pates' expenses. The Pates' attorney also acknowledged in the D T P A letter that, "[o]n June 20, 2017, the Pates drove to San Angelo, signed the papers, and went through the walk through on the travel trailer. At that time everything worked. The linoleum was fine . . . ."
Although the dissent implies that we took this language from the Pates' DTPA demand letter out of context, the DTPA demand letter was drafted by an attorney, the words are unambiguous, and we apply their plain meaning.
Levi testified by deposition that he did not inspect the repairs that Fun Town performed on the travel trailer before his attorney sent the DTPA demand letter to Fun Town. Levi also testified that when he went to the Cleburne dealership to inspect the travel trailer in April 2018, the slide-out worked. Levi stated that he left the travel trailer at the Cleburne dealership in April 2018 and would not have taken possession of the travel trailer even if it was repaired.
Martinez testified by deposition that Fun Town repaired the linoleum floor on the travel trailer before the Pates purchased the unit. Martinez testified that Fun Town was not deceptive towards the Pates because Fun Town "fixed the linoleum" and "there's not a need to disclose every little thing" "that can be fixed" such as tightening a loose plumbing fixture. Martinez "didn't know what ripped" the linoleum floor before the sale because a few different things can cause such a rip. He testified that "maybe a nail or a rock or something like that . . . had gotten under the slide," because "[w]hen these things are moving down the road . . . they shift [and] adjust." Martinez testified by deposition that after Fun Town "fixed the linoleum" and "operated the slides in and out a few different times, it didn't rip." For this reason, Martinez "did not feel that it was the slides" that caused the pre-sale rip and instead believed that "a rock or a nail or something like that could have caused it."
Martinez testified that these things happen to trailers when "[y]ou have a house of moving parts going down the road."
Martinez testified that the length of time it takes Fun Town's service department to complete a repair depends upon how long it takes to obtain the necessary materials and the number of units already in the service department. To cut down on the amount of time that a unit is in the service department waiting for repairs, Martinez testified that the service department encourages customers to use their travel trailers while parts are ordered, such as when Fun Town ordered linoleum for the Pates' unit. He stated that most customers use their travel trailer until Fun Town gets the part in. Finally, Martinez testified that a customer is not required to have their travel trailer serviced by Fun Town or the specific Fun Town dealership they purchased from.
Martinez testified that when the Pates brought their travel trailer into Fun Town in August 2017, the service department notified the manufacturer that warrantied the unit of the linoleum tear, and the manufacturer recommended the steps that the service department should take to fix it. Martinez stated that "it wasn't necessarily a rock" that tore the linoleum floor after the Pates' purchase, but there could have been an off-adjustment with the slide-out. Martinez testified that the manufacturer ultimately suggested adding an additional roller to the slide-out, and the service department complied. Martinez testified by deposition that he "do[es]n't think [the slide-out] was defective," and he "ha[s]n't h6eard of any other of these trailers needing a roller in it."
Martinez attests in an affidavit that Fun Town repaired the linoleum floor before the travel trailer was sold to the Pates and the slide-out worked properly at the time of purchase. Martinez further attests that during the make-ready, the slide-out was tested and it did not tear the linoleum floor when it extended and retracted. Martinez also attests that a Fun Town representative and the Pates walked through the travel trailer before and after the purchase to go over its features, which included testing and operating the slide-outs.
Martinez further attests in his affidavit that Fun Town told the Pates that they could use their travel trailer any time while it was at Fun Town getting repaired. Martinez avers that the linoleum floor tear did not prevent the Pates from using the travel trailer because the slide-out still worked. Martinez attests that he personally inspected the travel trailer after the linoleum floor and slide-out repair, and the slide-out works properly. Martinez also attests that the travel trailer is no less valuable due to any repair that Fun Town completed; however, the Pates refuse to take possession of the travel trailer despite it being repaired at no cost to the Pates.
In April 2018, the Pates filed a lawsuit against Fun Town asserting causes of action under the DTPA for failure to disclose, misrepresentation, unconscionable conduct, and breach of warranty. The Pates state in their petition that the travel trailer was defectively made. The Pates allege that Fun Town misrepresented that the travel trailer was in perfect condition and that Fun Town "had the best service department in the Big Country." The Pates also assert that Fun Town failed to disclose that it repaired the linoleum before the purchase. The Pates contend that Fun Town breached the implied warranty of merchantability and engaged in unconscionable conduct. The Pates assert that they purchased a travel trailer for $70,172.04 that has a fair market value of zero, and they sought as damages restoration of the purchase price of the travel trailer plus all payments made on the note, insurance and travel costs, and loss of use. The Pates also requested revocation of acceptance and rejection of the transaction.
Fun Town filed a hybrid motion for summary judgment arguing that there was no evidence to support the Pates' DTPA misrepresentation and failure-to-disclose claims because there was no evidence of any pre-sale misrepresentation. Moreover, because it was undisputed that the slide-out functioned properly at the time of purchase, Fun Town had no knowledge of a defect and no duty to disclose. Fun Town also argued that there was no evidence to support a breach-of-warranty claim because the Pates signed paperwork stating that they inspected the travel trailer to their satisfaction and the Pates disclaimed all warranties when they signed the purchase agreement and dealer warranty disclaimer. Fun Town maintained that there was no evidence to support an allegation that its actions were unconscionable for the same reasons that the Pates' other DTPA claims failed. Finally, Fun Town asserted that restoration of remedy damages was not available to the Pates because they failed to seasonably reject the travel trailer, they disclaimed all warranties, and they did not offer to return the benefit they received from the travel trailer. Evidence that Fun Town attached to its summary-judgment motion included: (1) the Pates' DTPA demand letter; (2) Martinez's affidavit; (3) the purchase agreement for the travel trailer, signed by the Pates; (4) the manufacturer's customer delivery and warranty registration form, signed by the Pates; (5) Fun Town's dealer warranty disclaimer signed by the Pates; (6) the pre-delivery inspection checklist signed by the Pates, (7) excerpts of Levi Pate's deposition testimony; and (8) excerpts of Nicole Pate's deposition testimony.
The Pates responded to Fun Town's hybrid motion for summary judgment and attached evidence that included excerpts of Fun Town corporate representative Hector Martinez's deposition and the affidavit testimony of Levi Pate. In December 2021 the trial court signed a final judgment granting Fun Town's traditional and no-evidence motions for summary judgment.
ANALYSIS
After an adequate time for discovery has passed, a party may move for a no-evidence summary judgment on the ground that there is no evidence to support an essential element of a claim on which the non-movant bears the burden at trial. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). To defeat a no-evidence motion for summary judgment, the non-movant must produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged element. See Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). "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." Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003) (quoting King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). More than a scintilla of evidence exists if the evidence would permit reasonable and fair-minded people to differ in their conclusions. Id.
A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Te x . R. Civ. P. 166a(c); Nassar v. Liberty Mut. Fire Ins., 508 S.W.3d 254, 257 (Tex. 2017) (per curiam). An issue is established conclusively if reasonable minds could not differ about the conclusion to be drawn from the facts in the record. Community Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). "If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment." Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). A defendant who moves for traditional summary judgment on the plaintiff's claims must conclusively disprove at least one element of each of the plaintiff's causes of action. Little v. Texas Dep't of Crim. Just., 148 S.W.3d 374, 381 (Tex. 2004).
We review a trial court's summary judgment de novo. Lujan, 555 S.W.3d at 84. Under either a no-evidence or traditional motion, we consider the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. See Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). Where the trial court does not state the basis on which it granted summary judgment, we must affirm if any of the grounds asserted in the summary-judgment motion are meritorious. Hansen, 525 S.W.3d at 680. In reviewing a summary judgment, we consider all grounds presented to the trial court and preserved on appeal in the interest of judicial economy. Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Though we typically address a no-evidence summary-judgment motion before a traditional summary-judgment motion, see Ridgway, 135 S.W.3d at 600, we can address the traditional motion first when it is dispositive. See D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217, 225 n.7 (Tex. App.- Fort Worth 2013, no pet.)
The DTPA prohibits "false, misleading, or deceptive acts or practices." Tex. Bus. & Com. Code § 17.46(a). The Pates have alleged such acts to include "representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which they do not have" and "representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another." Id. § 17.46(b)(5), (7). The term "transaction" as used in the DTPA contemplates an act where an alteration of legal rights occurs. Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 744 (Tex. App.-Fort Worth 2005, no pet.). The transaction in this instance occurred when the Pates purchased the travel trailer. See id.
The Pates first argue that the trial court erred in granting Fun Town's summary-judgment motion on their claims alleging violations of the DTPA for failure to disclose and misrepresentation. See Tex. Bus. & Com. Code § 17.46(b)(5), (7), (24). The Pates' claims are based on Fun Town's purported failure to disclose a defect, misrepresentation of the standard of the travel trailer, and misrepresentation that Fun Town had the "best service department in the Big Country." Specifically, the Pates contend that (a) the slide-out tore the linoleum of the travel trailer prior to their purchase, (b) Fun Town repaired the linoleum but did not inspect or repair the slide-out because Fun Town guessed that a nail or small rock had gotten under the slide-out; and (c) if the Pates had been informed of this event and no attempt to repair the slide-out, they would not have bought the travel trailer.
There is no evidence in the record that Fun Town made false statements about the travel-trailer's "sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities" at the time of purchase. Id. § 17.46(b)(5). There is also no evidence that Fun Town made false representations about the standard, quality, grade, style, or model of the travel trailer. Id. § 17.46(b)(7). Levi testified by deposition that during his first visit to Fun Town, he remembered Fun Town representatives discussing with him "[j]ust the different types of trailers and convenience for the significance of fitting our family in the trailer." Levi testified that he otherwise did not necessarily remember any specific discussions that he had with Fun Town sales representatives regarding the travel trailer on his first visit. Levi further testified that during his second visit, Fun Town representatives conducted a fifteen-minute walk-through that included going through the systems of the travel trailer. During the walk-through, a Fun Town representative "showed [Levi] everything-how to use everything" on the travel trailer. After the walk-through, the Pates signed documents stating that their questions about the travel trailer were answered and that they tested its features and systems before they completed the purchase. Levi testified that he did not recall any specific discussions he had with any Fun Town representative during the second visit, aside from getting approval to sign his wife's signature on the purchase paperwork. Nicole testified by deposition that during her first and only visit to Fun Town, she remembered touring the travel trailer and negotiating price in the sales office. She stated that she had no additional discussions with Fun Town staff that were not discussed in her deposition. Neither of the Pates produced evidence of Fun Town statements or representations that were false. The record contains no evidence raising a genuine issue of material fact as to whether Fun Town made false statements or misrepresentations under the DTPA. See id. § 17.46(b)(5), (7); Tex.R.Civ.P. 166a(i).
The Pates also allege that Fun Town violated the DTPA by "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." See Tex. Bus. & Com. Code § 17.46(b)(24). To prevail on a claim for failure to disclose under the DTPA, the Pates must prove that (1) Fun Town failed to disclose material information concerning goods or services; (2) the undisclosed information was known at the time of purchase; (3) Fun Town intended to induce the Pates to enter into the transaction through the failure to disclose; and (4) the Pates would not have entered into the transaction had the information been disclosed. See id.; Patterson v. McMickle, 191 S.W.3d 819, 827 (Tex. App.-Fort Worth 2006, no pet.) (citing Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 604 (Tex. App.-Texarkana 2001, pet. denied)). Mere nondisclosure of material information does not establish an actionable DTPA claim. Patterson, 191 S.W.3d at 827; Head, 159 S.W.3d at 744. "Nondisclosure without evidence that a defendant had knowledge of the undisclosed information and intentionally withheld the information is insufficient to establish a violation of the DTPA." Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W.3d 492, 506 (Tex. App.-San Antonio 2004, pet. denied). In addition, the known information must be withheld for the purpose of inducing the consumer to enter into the transaction. See Doe v. Boys Club of Greater Dall. Inc., 907 S.W.2d 472, 480 (Tex. 1995).
The summary-judgment record establishes that Fun Town did not "fail to disclose information . . . that was known at the time of the transaction" intending to induce the Pates to enter into the transaction. See Tex. Bus. & Com. Code § 17.46(b)(24). It is undisputed that when the Pates purchased the travel trailer the slide-out worked. Martinez testified that after the make-ready was completed, Fun Town tested the slide-out to ensure that it worked properly. He attests that, at the time of purchase, the slide-out did not tear the linoleum floor when it extended and retracted. Martinez further attests that a Fun Town representative walked Levi through the travel trailer and operated the slide-outs before and after the purchase. Levi likewise testified by deposition that before he purchased the travel trailer, Fun Town representatives answered all of his questions and conducted a walk-through where "[e]verything was opened up, all the slide-outs were opened and electricity was turned on." The Pates pleaded that the travel trailer had no apparent defects at the time of purchase. The Pates' DTPA demand letter states that at the time of purchase "everything worked" on the travel trailer and "[t]he linoleum was fine."
The DTPA demand letter recites that the Pates took a photograph of the tear in the linoleum that occurred after the purchase. However, the record does not contain a photograph or description of the tear that occurred before or after the purchase of the travel trailer. The Pates do not allege and do not provide or point to evidence that that the pre-sale tear in the linoleum was similar in location and size to the tear that occurred after the purchase of the travel trailer.
Levi also testified by deposition that he signed a pre-delivery inspection checklist at the time of purchase, where he acknowledged the following:
I CERTIFY THAT THE UNIT DESCRIBED ABOVE WAS DELIVERED TO ME ON THIS DATE 6/20 AND THAT THE DEALER EXPLAINED OR DEMONSTRATED ALL APPLICABLE ITEMS LISTED TO MY SATISFACTION. I FURTHER CERTIFY THAT I HAVE COMPLETELY AND FULLY INSPECTED THIS UNIT AND HAVE FOUND NO DEFECTS IN MATERIAL AND OR WORKMANSHIP OTHER THAN WHAT MIGHT BE LISTED ABOVE AND I ACCEPT THIS UNIT WITH COMPLETE SATISFACTION.
This pre-delivery inspection checklist reflected that the interior, exterior, and floor of the travel trailer were inspected. Levi also testified by deposition that he signed the manufacturer's customer delivery and warranty registration form that acknowledged he "observed and received satisfactory explanations to all questions regarding the items listed during the delivery process." The manufacturer's customer delivery and warranty registration form also stated that Levi inspected the travel trailer to his satisfaction and was offered a test drive at the time of purchase. Levi testified that he was provided the opportunity to make notations on the form if he was not happy with any feature of the travel trailer, but he did not do so because "[n]othing seemed wrong."
Critically, the Pates do not allege that Fun Town inspected the slide-out and had material knowledge of an alleged defect before the sale. In their summary-judgment response, the Pates assert that the evidence is undisputed that Fun Town did not inspect or repair the slide-out before the purchase because Fun Town believed that a small rock or nail caused the linoleum tear. The Pates also acknowledge in their brief that the summary-judgment evidence demonstrates that Fun Town believed the pre-sale linoleum tear was caused when a rock or nail traveled into the slide during transit and that the repair was simple. The Pates argue that this belief is why Fun Town did not inspect or repair the slide-out when it repaired the linoleum pre-sale. See Boys Clubs of Greater Dall., 907 S.W.2d at 479 (explaining that defendant has no duty to disclose material facts it should have known but does not). The evidence thus fails to create a fact issue concerning whether Fun Town knew of a defect and intentionally withheld information with the intent to induce the Pates to purchase the travel trailer. See Robinson v. Preston Chrysler-Plymouth, Inc., 633 S.W.2d 500, 502 (Tex. 1982) (instructing that non-disclosure is not actionable without evidence defendant had knowledge of undisclosed information and intentionally withheld it).
The Pates also contend that Fun Town's assertion that the dealership had the "best service department in the Big Country" was a misrepresentation under the DTPA. To be actionable under the DTPA, a misrepresentation must concern a material fact and not be merely puffing or opinion. Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980). Broad statements comparing one's goods with others or labeling service "good" or "superb" without more "amounts to mere sales talk, or puffery, not a statement of material fact." GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889 (Tex. App.-Austin 2008, no pet.). A statement that Fun Town had the "best service department in the Big Country" is a broad, vague statement of opinion and not a representation of material fact under the DTPA. See id.
Because none of the evidence relied upon by the Pates concerned a misrepresentation or false statement of material fact under the DTPA, the trial court did not err when it granted Fun Town's no-evidence motion for summary judgment on this claim. See Tex. R. Civ. P. 166a(i). Because the summary-judgment evidence also shows the absence of a genuine issue of material fact and that Fun Town did not violate the DTPA by failing to disclose a material fact, the trial court did not err when it rendered traditional summary judgment in favor of Fun Town on these claims. See Tex. R. Civ. P. 166a(c); Ridgway, 135 S.W.3d at 600. We overrule the Pates' first two issues.
Before moving to the Pates' third issue, we pause to address the dissenting opinion. To conclude that the Pates produced evidence sufficient to create fact issues on their DTPA claims for failure to disclose and unconscionable conduct, the dissent misinterprets the evidence and misapplies the standard for summary-judgment review. The dissent proposes that the Pates' summary-judgment evidence creates a reasonable inference that "Fun Town knew what the real problem was and simply patched the linoleum to hurry the sale along," and that Fun Town left the slide-out in the open position and did not operate it during the walk-through to conceal the underlying problem at the time of purchase. The dissent asserts that the following stacked inferences created a fact issue precluding summary judgment:
The dissent contends that, in analyzing traditional summary judgment, we should not consider evidence that Fun Town presented in support of its summary-judgment motion because the Pates do not challenge whether Fun Town carried its burden as a matter of law and only challenge whether they raised a fact issue in response. We disagree. First, the Pates do challenge whether Fun Town carried its burden. The Pates argue on appeal that "Fun Town did not prove as a matter of law that [it] did not engage in false, misleading, or deceptive acts or practices." The Pates further assert that "Fun Town fails to prove as a matter of law there is no genuine issue of material fact as to Fun Town's lack of knowledge." Second, considering only the evidence that the Pates attached to their summary-judgment response would be a no-evidence summary judgment analysis rather than a traditional summary-judgment analysis. Compare Tex. R. Civ. P. 166a(i) (placing burden on non-movant to produce evidence to resist no-evidence summary judgment) with Tex. R. Civ. P. 166a(c) (placing burden on movant to show no genuine issue of material fact in record).
Summary-judgment evidence fatally undermines these stacked inferences. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755 (Tex. 2003) ("some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence") (quoting Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993)); see also City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005) (instructing that although reviewing court examines summary-judgment record in light most favorable to nonmovant, "[reviewing courts do not disregard the evidence supporting the motion; if they did, all summary judgments would be reversed") (emphasis in original).
• The slide-out caused the linoleum tear during the make ready, and Fun Town knew this.
• Although Fun Town actually knew what the real problem was with the travel trailer, it simply patched the linoleum during the make-ready to hurry the sale along.
• Fun Town orchestrated the events on the day of purchase to hide the defect from the Pates by leaving the slide-out in the open position and not operating the slide-out during the walk-through.
• Fun Town failed to disclose the defect to the Pates at the time of purchase and acted to hide the defect from the Pates in order to induce them into the sale of the travel trailer.
But the dissent ignores evidence from both parties that nullifies the proposed inferences:
• The DTPA demand letter, wherein the Pates' attorney states that "[a]t th[e] time [of purchase] everything worked. The linoleum was fine . . ."
• Levi's sworn deposition testimony that (i) Fun Town serviced the travel trailer on the day of purchase by changing the hitch and (ii) he signed a customer delivery and warranty registration form reflecting that Fun Town offered him a test drive at the time of purchase.
• Martinez's sworn deposition testimony that (i) Fun Town was not deceptive towards the Pates because Fun Town fixed the linoleum pre-sale and tested the slide-out and it worked; and (ii) because of this Fun Town thought a rock or nail caused the linoleum tear.
• Levi's sworn deposition testimony that (i) "nothing seemed wrong" with the travel trailer on the day of delivery; (ii) although Levi does not recall if he personally operated the slide-out during his walk-through of the travel trailer on the day of delivery, he could have done so if he so chose; and (iii) he signed a pre-delivery inspection checklist at delivery acknowledging that he "completely and fully inspected this unit" and "found no defects in material or workmanship," including the floor.
This evidence-particularly that from the Pates-exposes the dissent's proposed stacked inferences as mere surmise or suspicion that is not cognizable summary-judgment evidence. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) ("The evidence does not create an issue of material fact if it is 'so weak as to do no more than create a mere surmise or suspicion' that the fact exists.") (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)).
The dissent argues that we improperly considered Martinez's sworn deposition testimony because Martinez's credibility could be a dispositive factor in the case. However, "[o]ur summary judgment rule permits the granting of a summary judgment on the basis of uncontroverted testimonial evidence of an interested witness if that evidence is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) (citing Tex.R.Civ.P. 166a(c)). In an affidavit attached to the Pates' summary-judgment response, the Pates' attorney attests that he took the deposition of Martinez and that Martinez made no changes to his deposition testimony. The Pates cite more than twenty pages of Martinez's deposition testimony in their summary-judgment response. And the Pates credit Martinez's testimony that before the sale, Fun Town "repaired the linoleum" and did not "inspect or repair" the slide-out because Fun Town "guessed or assumed that it might have been a small rock or nail that caused the tear." Because the Pates did not object to Martinez's affidavit and deposition testimony as competent summary-judgment evidence under Rule 166a(c), we are free to consider the testimony. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) ("A court of appeals commits reversible error when it sua sponte raises grounds to reverse a summary judgment that were not briefed or argued on appeal.").
Aside from the lack of evidence contradicting the judgment, the record does not support reversal because the Pates do not allege that Fun Town actively concealed a defect in the trailer at the time of purchase. See Tex. R. Civ. P. 166a(c) (providing that in reviewing summary judgment, "[i]ssues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal"); see also Tex. R. App. P. 33.1(a)(1) (mandating that to preserve complaint for appeal, record must demonstrate complaint was made to trial court). In their summary-judgment response, the Pates allege that, during the make-ready, Fun Town "simply repaired the linoleum without investigating, inspecting, or repairing the slide out, and took no action to determine the true nature of the problem." The Pates identify the following facts as "undisputed:"
• Fun Town repaired the linoleum before purchase, "but had not repaired or inspected the slide out" because Fun Town "guessed that maybe a nail or small rock had gotten under the slide."
• Because Fun Town "guessed or assumed" that a little rock or nail caused the tear, it "made no effort to inspect or repair the slide out prior to" purchase.
The Pates continue to argue in their opening brief that it is "undisputed that Fun Town did not repair or inspect the slide-out mechanism."
The Pates fault Fun Town for "guessing" that a small rock or nail caused the rip and "hop[ing]" they fixed the trailer correctly. They do not allege that Fun Town actively concealed a defect in the trailer at the time of purchase. Because the Pates did not argue in the trial court that, before the purchase, Fun Town knew that the slide-out caused the linoleum to rip and intentionally hid this knowledge to induce the Pates into the sale, we cannot address the issue on appeal. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (instructing that motions and responses for summary judgment must stand or fall on grounds expressly presented to trial court).
The Pates did not allege in their petition or summary-judgment response, and no evidence in the record demonstrates, that Fun Town knew at the time of sale that the slide-out was defective and withheld this material information with the intent to induce the sale. See Tex. Bus. & Com. Code § 17.46(b)(24). For these reasons, the trial court did not err by granting Fun Town's motion for summary judgment on the Pates' DTPA claims for failure to disclose and misrepresentation. See Tex. R. Civ. P. 166a(i), (c).
In their third issue, the Pates argue that the trial court erred in granting summary judgment on their claim for breach of warranty. "The DTPA does not create warranties; rather, they must be established independently of the act." Elliot v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56-57 (Tex. App.-Houston [14th Dist.] 2003, no pet.). To recover under the DTPA on a breach of warranty, a plaintiff must demonstrate (1) consumer status, (2) existence of the warranty, (3) breach of the warranty, and (4) that the breach caused injury. Id. at 55; see Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576-77 (Tex. 1991) (holding breach of warranty claims are actionable under DTPA). If the seller is a merchant with respect to goods of that kind, the implied warranty of merchantability applies in a contract for goods unless it is excluded or modified. See Tex. Bus. & Com. Code § 2.314(a). To show a breach of the implied warranty of merchantability, a plaintiff must demonstrate that the goods were defective when they left the seller's possession and "were unfit for ordinary purposes for which they are used because of a lack of something necessary for adequacy." Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 (Tex. 1989). A product that performs its ordinary function adequately does not breach the implied warranty of merchantability simply because it does not function as well as the buyer would prefer or as well as it could. General Motors Corp. v. Brewer, 966 S.W.2d 56, 56 (Tex. 1998).
The Pates do not specify the warranty that Fun Town allegedly breached or explain how Fun Town breached the unspecified warranty.
Fun Town asserted in its answer and summary-judgment motion that the Pates disclaimed all warranties from the dealership in the purchase of the travel trailer. See Tex. Bus. & Com. Code § 2.316(b). A disclaimer of the implied warranty of fitness and implied warranty of merchantability must be conspicuous, and a disclaimer of the implied warranty of merchantability must mention the word "merchantability." See id. A printed heading in capital letters or text in the body of a form that is in larger or contrasting type is considered conspicuous. See id. § 1.201(10). Unless circumstances demonstrate otherwise, all implied warranties are excluded by language that in common understanding calls the buyer's attention to the exclusion of warranties and makes it plain that there is no implied warranty. See id. § 2.316 (modifying or disclaiming UCC warranties in sale transactions).
The Pates' travel trailer was covered by a one-year limited manufacturer's warranty. The Pates purchased an additional eighty-four months of warranty coverage through an independent third-party company.
The summary-judgment evidence establishes that the Pates disclaimed all warranties from Fun Town in the purchase of the travel trailer. The Pates signed multiple documents stating that Fun Town did not provide them with any warranties for the travel trailer. The purchase agreement signed by the Pates states in capital font and larger text that "THE DEALER HEREBY DISCLAIMS TO THE EXTENT PERMITTED UNDER APPLICABLE STATE LAW ALL WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF THE MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE." The Pates also signed a document bearing the heading "DEALER WARRANTY DISCLAIMER" in bold capital letters that also states in bold: "[t]he only warranties applying to this vehicle are those offered by the manufacturer. The selling dealer disclaims all warranties, either expressed or implied, including all warranties of merchantability or fitness for a particular purpose . . . ." Hector Martinez, the General Manager for Fun Town, testified by affidavit that Fun Town does not manufacture the recreational vehicles that it sells to the public and Fun Town does not provide any warranties on recreational vehicles that it sells.
These exclusions of warranty are sufficiently conspicuous to effectively disclaim the implied warranties of merchantability and fitness in the sale of the travel trailer. See id. § 2.316(b). Because the summary-judgment evidence conclusively disproves the Pates' DTPA claim for breach of warranty, we conclude that the trial court did not err when it granted Fun Town's traditional motion for summary judgment regarding this claim. See Tex. R. Civ. P. 166a(c). We overrule the Pates' third issue on appeal.
The evidence reflects that the Pates used their travel trailer for its ordinary purpose when they took it on a ten-day trip to Colorado before it was repaired, and the Pates could have continued to use the travel trailer instead of leaving it with Fun Town while the service center waited to complete the repair. See General Motors Corp. v. Brewer, 966 S.W.2d 56, 56 (Tex. 1998).
The Pates next argue that the trial court erred in granting summary judgment because there was evidence that Fun Town's actions were unconscionable. An unconscionable act under the DTPA is one that, "to a customer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree." Tex. Bus. & Com. Code § 17.45(5). To prove an unconscionable action, the Pates must show that Fun Town took advantage of their lack of knowledge and that the resulting unfairness was "glaringly noticeable, flagrant, complete and unmitigated." Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985).
The summary-judgment evidence conclusively proved that Fun Town did not take advantage of the Pates' lack of knowledge or experience to a grossly unfair degree. The Pates, who previously owned recreational vehicles, were not without choice in selecting another dealership to purchase a travel trailer from. See Head, 159 S.W.3d at 745 (concluding that trial court did not err in granting summary judgment on claim of unconscionable act when, among other factors, consumer had choice in selecting inspection company). For the same reasons that we conclude the record does not raise a genuine issue of material fact issue concerning the Pates' previously discussed claims, we conclude that the trial court did not err in granting summary judgment on the Pates' claim of an unconscionable act. Tex.R.Civ.P. 166a(c); Bradford v. Vento, 48 S.W.3d 749, 760 (Tex. 2001). We overrule the Pates' fifth issue.
Further, our conclusion that the summary judgment stands on traditional grounds means that we need not consider issues four and six, by which the Pates challenge the no-evidence summary judgment on its breach of warranty and unconscionable claims. See Tex. R. App. P. 47.1; D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217, 225 n.7 (Tex. App.- Fort Worth 2013, no pet.) (addressing traditional motion for summary judgment first because it was dispositive). Finally, the Pates argue in issues seven and eight that the trial court erred in granting summary judgment on its requests for revocation, rescission, or restoration based on Fun Town's disclaimer of warranties or that they revoked their acceptance of the trailer within a reasonable time. Because the Pates have not shown that the trial court erred in granting Fun Town a summary judgment, the Pates have not shown that they are entitled to the remedies of revocation, rescission, or restoration. See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 825 (Tex. 2012) (instructing that DTPA restoration is available to prevailing consumer); Leifester v. Dodge Country, Ltd., No. 03-06-00044-CV, 2007 WL 283019, at *3 (Tex. App.-Austin Feb. 1, 2007, no pet.) (mem. op.) (noting that rescission is remedy available under DTPA claim and not independent action). We overrule the Pates' seventh and eighth issues because the Pates have no surviving claim for which they could receive revocation, rescission, or restoration relief. In their ninth issue, the Pates acknowledge that they had not offered to return any benefit they derived from the travel trailer when the summary-judgment motion was filed, but assert that they later filed an amended petition offering to do so. We need not consider the Pates' ninth issue, which supplements the arguments raised in issues seven and eight. See Tex. R. App. P. 47.1.
CONCLUSION
We conclude the trial court did not err when it granted Fun Town's motion for summary judgment on the Pates' claims. We affirm the judgment of the trial court.
Affirmed.
CONCURRING AND DISSENTING OPINION
Chari L. Kelly, Justice
I respectfully concur in part and dissent in part. Fact issues preclude summary judgment on Levi and Nicole Pate's claims of failures to disclose. Otherwise, their claims of misrepresentations are properly disposed for the failure to raise a fact issue. And the warranty claims are properly disposed of under Fun Town's affirmative defense of disclaimer.
BACKGROUND
Fun Town RV San Angelo, LP wanted to sell a 2017 model Vengeance travel trailer, but the trailer had a problem. Sliding one of its slide-outs in or out could tear the linoleum flooring inside the trailer. To fix that problem, the slide-out needed another roller. Adding the roller-according to Fun Town's corporate representative-would mean that the slide-out "wouldn't continue to rip the floor" and was the repair that the manufacturer recommended. The corporate representative admitted that although Fun Town repaired the linoleum, that repair did not fix the underlying problem with the trailer:
A slide-out is a distinct part of a trailer that when extended increases the available living space inside the trailer. Slide-outs stay retracted when the trailer is driven on the road.
Q. Okay. But that just repairs the tear. It doesn't fix what's tearing, does it?
A. Correct.
. . . .
Q. Okay. But in reality [the trailer] wasn't ready, was it? Because you had to do other work later on to get it to where it would quit ripping the floor.
A. After the fact, correct.
That later work was to add the roller. But Fun Town did not make this repair before selling the trailer. It only patched the linoleum, then sold the trailer to the Pates.
The Pates went to Fun Town for a walkthrough of the trailer. According to Levi Pate, "[a]t no time did [Fun Town] disclose that the slide out had torn the linoleum floor and that they had fixed the tear but had not done any work or repairs on the slide out." Instead during the walkthrough, the slide-out stayed in the open position, with no one operating it. Levi Pate testified that if he had "known the items on the trailer were not working," including the not-yet-repaired slide-out, which he called a "defect," then he "would not have purchased the trailer."
The Pates took the trailer home, and the next day, Levi Pate prepped it for a trip. He opened the slide-out, and the linoleum ripped. Ripped linoleum is the same problem with the trailer that Fun Town faced before the walkthrough. He called Fun Town to report the problem, but because Fun Town would not look at the trailer for months, the Pates took their trip and afterward delivered the trailer to Fun Town. Only then did Fun Town add the roller. Its corporate representative admitted that the defective slide-out existed on at least the day after the Pates took delivery because the representative answered "Correct" to this question: "So the Pates had a defect from about January 21, 2017, until supposedly it was fixed in the middle of April 2018?"
The Pates sued Fun Town, alleging DTPA claims of failure to disclose, misrepresentation, breach of warranty, and unconscionable conduct. The trial court granted Fun Town's hybrid motion for summary judgment, ruling that the Pates take nothing on their claims.
STANDARDS FOR REVIEWING SUMMARY-JUDGMENT RECORDS
When we review a summary judgment, we "must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion." Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). All evidence favoring the nonmovant must be taken as true. United Supermkts., LLC v. McIntire, 646 S.W.3d 800, 801 n.3 (Tex. 2022) (per curiam). We also disregard any evidence and any inference contrary to the nonmovant's position unless no reasonable factfinder could disregard it. See Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). All this means that "if the credibility of [an] affiant or deponent is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate." Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989), quoted in Bertucci v. Watkins, 690 S.W.3d 341, 358 (Tex. App.-Austin 2022, pet. granted) (en banc) (mem. op.). To review a summary-judgment record not in keeping with these rules is to act as a juror. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (fact-finding is inappropriate at summary judgment-"there are no facts to find" because summary judgment stands or falls on presence of a "genuine issue as to any material fact" (quoting Tex.R.Civ.P. 166a(c))).
DISCUSSION
Failure-to-Disclose Claims
Applying the appropriate standards to the record here, I conclude that the Pates raised a fact issue on their claims for failures to disclose. The record includes evidence tending to show that Fun Town knew that a repair needed performing to fix the linoleum-tearing problem but did not disclose that matter or that the linoleum had been patched. See Savage v. Doyle, 153 S.W.3d 231, 236-37 (Tex. App.-Beaumont 2004, no pet.) ("If the seller knew a roof repair had been performed and did not disclose that fact to the buyer, that is some evidence from which it might be inferred that the seller was aware that the property had sustained water damage that his work on the roof corrected and that the seller concealed the water damage.").
When Levi Pate discovered the linoleum-tearing, he knew right away that the cause was a defective slide-out, so it's reasonable to infer that Fun Town had known right away as well but chose instead simply to patch the linoleum. The corporate representative admitted that the cause of the tearing was the slide-out; that the defect existed at least since the day after the Pates took delivery; and that simply patching the linoleum did not fix the underlying problem-the roller added later was needed. This chain of events is reasonably consistent with the view that Fun Town knew what the real problem was and simply patched the linoleum to hurry the sale along, thus calling into question the corporate representative's contrary testimony. When the Pates were at Fun Town, Fun Town left the slide-out in the open position and did not operate it even though Fun Town representatives otherwise conducted a walkthrough of the trailer that included going through many (or even all) of its systems, suggesting efforts to conceal the underlying problem. This information is enough to allow reasonable and fair-minded people to differ in their conclusions about what genuine issues of material fact the summary-judgment record raises.
The conclusion to the contrary in the majority opinion can be reached only by acting as a juror to weigh certain items of evidence. It first rests on crediting testimony by Fun Town's corporate representative that is contrary to the Pates' position and that can be disregarded based on credibility. Such testimony gets no weight at summary judgment, yet the majority opinion relies on it.
The majority opinion also relies on selections from Levi Pate's deposition testimony but inappropriately draws inferences from the testimony contrary to the Pates' position. For example, Levi Pate testified that his questions were answered at the walkthrough, and the majority opinion apparently infers from that testimony that the trailer was not defective. That inference cannot be drawn at summary judgment. He also testified that during the walkthrough "[e]verything was opened up, all the slide-outs were opened and electricity was turned on." The majority opinion apparently infers from this testimony that Fun Town representatives operated the slide-out by sliding it in and out in Levi Pate's view and that no linoleum-tearing occurred. It's inappropriate to draw those inferences against the Pates-it's at least equally as reasonable that "the slide-outs were opened" means that they were in the open position when the Pates viewed the trailer. This testimony thus can't be used against the Pates like it's being used here.
Next are references to the Pates' pleadings, under the apparent view that the Pates' allegation of no apparent defects is a judicial admission against their position, and to signed statements about having inspected the trailer. But these items are not contrary to the Pates' position-not all defects are apparent, and the Pates' claim is that Fun Town failed to disclose a defect (and even acted to hide it from the Pates). That the Pates did not catch Fun Town in its alleged deceptive trade practice is no reason to affirm a summary judgment against them on the claim. Viewing the record in the light most favorable to the Pates should lead us to say that of course Levi Pate didn't find any defects on inspection-they were hidden from him, unobservable.
Concluding otherwise is inconsistent with the purpose and operation of the DTPA. See Tex. Bus. & Com. Code § 17.44(a) ("This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection."). The legislature has defined many failures to disclose as deceptive trade practices. See id. § 17.46(b)(24). That such a failure to disclose might have succeeded in deceiving a consumer is no reason to pour the consumer out.
The evidence from the Pates' demand letter says, in full context: "On June 20, 2017, the Pates drove to San Angelo, signed the papers, and went through the walk through on the travel trailer. At that time everything worked. The linoleum was fine, the generator button worked properly and the refrigerator was represented to work." These statements are consistent with the Pates' failure-to-disclose theory that the events of the day that they picked up the trailer were orchestrated so that they would not discover the defect in the slide-out, which was not operated while Fun Town personnel showed the Pates other systems of the trailer.
The majority opinion appears to put special emphasis on the statement that "everything worked." But it's because the slide-out worked-it slid in and out-that it could tear the linoleum. Viewing this statement in the light most favorable to the Pates, as we must, the statement indicates nothing more than that the slide-out could slide in and out and thus cause the linoleum to tear because the slide-out lacked the roller that was added later to fix the problem.
All the references to Fun Town's belief about a rock or nail being the cause of the tearing are beside the point. Crediting that evidence is failing to take as true the evidence favoring the Pates and failing to disregard evidence that can be disregarded as not credible.
The majority opinion's view of my analysis is that I have inappropriately stacked inferences and ignored some evidence. On the contrary, I have followed the summary-judgment standards requiring that all evidence and reasonable inferences favorable to the nonmovant be credited and that all evidence and inferences contrary to the nonmovant's position be disregarded when it reasonably can be.
What we don't see in the majority opinion is which inferences in the Pates' favor are deemed to be unreasonable under the opinion's approach. The trailer had a defect when the Pates bought it-the corporate representative admitted as much by admitting that patching the linoleum would not fix the linoleum-tearing problem and that adding a roller would be needed, and it's reasonable to assume that that was the same problem that was tearing the linoleum pre-walkthrough. Levi Pate testified by affidavit that Fun Town did not tell the Pates about that defect. It's also reasonable to infer that Fun Town knew about the linoleum-tearing problem because the evidence showed that it knew that the linoleum needed fixing, Levi Pate knew right away what was causing the linoleum-tearing, and the manufacturer's recommendation for the problem was to add a roller. All this is reasonable to infer from the record, properly viewed. See Leal v. McDonald's Corp., No. 03-05-00500-CV, 2009 WL 2410853, at *1 (Tex. App.-Austin Aug. 5, 2009, no pet.) (mem. op.) (Jones, C.J., dissenting) ("Appellate judges must be vigilant to avoid falling into the trap of concluding that since they are reasonable and fair-minded people, their particular view of the circumstantial evidence presented establishes the outer limits of what inferences can reasonably be drawn therefrom."). It thus defeats summary judgment on the failure-to-disclose claims.
The defective-trailer theory was not the Pates' only failure-to-disclose theory. Their other one is about Fun Town's alleged delays in repairing the trailer after the Pates returned it. Their opening brief cites, as one of the facts that defeats summary judgment, that "Fun Town intentionally did not tell Pate that it would take 2 to 3 months to get their travel trailer into the shop for repairs, such information only being provided to Pate after the purchase." This same argument was in the Pates' summary-judgment response. I conclude that the Pates raised a fact issue on whether there was any such failure to disclose because Levi Pate testified by affidavit:
Further, at no time during the process from simply looking at trailers to purchasing a trailer did Defendant ever tell us that in case of a repair it would take anywhere from 2 to 3 months before they could even see it or inspect the trailer. That fact alone would have caused me not to purchase a trailer from them.Whatever other problems that a failure-to-disclose claim based on this theory may have, it is still a theory about a failure to disclose information about repair services. Thus, because the majority opinion's rejection of the failure-to-disclose claims addresses only the defective-trailer theory, it errs by leaving this separate theory unaddressed.
In rejecting the Pates' position, the majority opinion asserts that "it was undisputed that the slide-out functioned properly at the time of purchase." But the Pates very much dispute that. They tell us in their opening brief about the evidence of Fun Town's knowledge of the defect when they went to Fun Town to take delivery of the trailer:
Fun Town also claimed that there was no evidence Fun Town had knowledge of the defect. It is undisputed that the slide-out tore the linoleum. As set forth above, it is also undisputed that Fun Town did not repair or inspect the slide-out mechanism. Fun Town knew there was a problem. Fun Town "hoped" that it was a nail or rock had gotten under the slide. Fun Town simply fixed the tear, not the slide-out.
. . . .
When Pate arrived to finish the final paperwork and pick up the travel trailer, Fun Town did not disclose to Pate of this malfunction/defect or even of the repair.
. . . .
Pate's travel trailer had this defect/malfunction from June 20, 2017[,] through at least mid April 2018.
. . . .
The slide-out malfunctioned, did not work properly and was defective.
Fun Town alleges that as a matter of law it did not know that the slide[-]out had a defect or malfunctioned when the Pate[s] purchased the travel trailer. That argument is simply wrong. It is undisputed that Fun Town knew the slide-out had malfunctioned and ripped the linoleum because Fun Town noticed the tear and then repaired the same during the make ready. To cover up the tear, Fun Town replaced the linoleum. It is undisputed that the Fun Town did not inspect or repair the slide-out itself. The slide-out was defective but was not repaired. It is also undisputed that the Fun Town did not inform Pate of the linoleum tear nor of the malfunction and no inspection or repair of the slide-out. With these undisputed facts, Fun Town fails to prove as a matter of law that there is no genuine issue of material fact as to Fun Town's lack of knowledge.
. . . .
At the very least, Fun Town knew they had not inspected nor examined the slide-out for defects. The slide-out had operated defectively and tore the linoleum. Fun Town covered it up and failed to disclose to Pate.(Formatting altered.) The existence of a defect in the trailer when the Pates picked it up, Fun Town's knowledge of that defect, and its failure to disclose it to the Pates are all integral to the failure-to-disclose claims as pleaded. The Pates have not conceded these matters away.
Misrepresentation claims
Concerning alleged misrepresentations, I concur only in the relevant portion of the judgment. The Pates' arguments against summary judgment for these claims are based on the evidence that they attached to their summary-judgment response and thus whether they carried the nonmovant's burden to raise a genuine issue of material fact about any misrepresentations. The evidence they attached was deposition testimony by Fun Town's corporate representative and an affidavit by Levi Pate. Therefore, to overrule their relevant issue, we should discuss the relevant portions of the corporate representative's deposition and of Levi Pate's affidavit and decide whether that evidence raises a genuine issue of material fact on actionable misrepresentations. After reviewing that evidence, I conclude that the Pates did not discharge their summary-judgment burden, and on that basis I would affirm the relevant portion of the summary judgment.
For the alleged misrepresentations that the Pates identify in their briefing but the majority opinion disposes of without analysis-that Fun Town allegedly misrepresented that it "is performing a make ready on the travel trailer," that the trailer was "new," and that the trailer "had been checked out and made ready"-I would dispose of those misrepresentation claims as well on the ground that the summary-judgment record does not raise a genuine fact issue.
Warranty claims and disclaimer
Under Fun Town's affirmative defense of disclaimer of warranties, I concur with the decision to treat the Pates' position as advancing only claims for breach of the implied warranty of merchantability and no other kind of warranty. I also concur with affirming traditional summary judgment on the Pates' warranty claims. The Pates have not presented any successful challenge to the disclaimer in this language from the parties' contract: "THE DEALER HEREBY DISCLAIMS TO THE EXTENT PERMITTED UNDER APPLICABLE STATE LAW ALL WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE."
The "as is" clause over which the parties join issue is a different provision of the parties' contract from this one that I rely on.
Claims of unconscionable course of action
In overruling the relevant portions of the Pates' issues about whether they raised fact issues to defeat summary judgment on their claims for an unconscionable course of action, see Tex. Bus. & Com. Code § 17.50(a)(3), the majority opinion rests on its prior conclusions about the Pates' misrepresentation and failure-to-disclose claims. Because I cannot join those portions of the majority opinion, I cannot join this portion about unconscionable conduct either.