Opinion
NO. 01-16-00231-CV
01-24-2017
BENITO SANTIBANEZ, Appellant v. ALEJANDRO DIRON, Appellee
On Appeal from the 434th District Court Fort Bend County, Texas
Trial Court Case No. 121-DCV-202428
MEMORANDUM OPINION
Benito Santibanez sued Alejandro Diron for Deceptive Trade Practices Act violations after a used vehicle Santibanez purchased "as is" from Diron encountered significant mechanical problems within days of the purchase. Diron filed a no-evidence and a traditional motion for summary judgment. Santibanez filed a single response but did not include any summary-judgment evidence. The trial court granted the motions and entered judgment in Diron's favor.
Santibanez contends that the trial court erred by (1) concluding that Diron had not engaged in conduct that violated the DTPA and (2) granting Diron's "no-evidence" motion.
We affirm.
Background
In April 2012, Diron, who operated Belknap Auto Sales, sold a used, ten-year-old vehicle to Santibanez. The bill of sale, which Santibanez signed, states that the vehicle is "Sold As Is." On the same day that Santibanez signed the bill of sale, he signed a document titled "Buyers Guide," which states that the vehicle is sold "As Is—No Warranty." Next to the "As Is" statement is the following disclosure:
YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.
Diron also sold Santibanez a third-party, three-month "limited warranty" that states it will go into effect the day that the warranty application and accompanying payment are received and approved by the warranty seller, CARS Protection Plus. The warranty was approved, and therefore went into effect, on May 2, 2012.
Within a month, Santibanez wrote a letter asserting that the vehicle had begun shaking on the day he bought it. He submitted a warranty claim to CARS Protection Plus, but his claim was denied. The denial letter states that the warranty did not go into effect until it was approved on May 2, Santibanez encountered problems with the vehicle before May 2, and, as a result, the limited warranty did not cover any repairs.
The letter does not identify its addressee.
Santibanez sued Diron, asserting that he violated the Deceptive Trade Practices Act by making false and misleading statements, failing to disclose information to induce him into the transaction, and engaging in unconscionable actions. His claims were limited to representations and actions surrounding the sale of the vehicle, not the third-party warranty.
Diron filed two summary-judgment motions—one titled a "no evidence" motion and the other a "traditional" motion. Santibanez filed a single response to both motions. In it, he argues that the no-evidence motion fails to specify which element of his claim lacks evidentiary support. He then argues that this deficiency transforms the no-evidence motion into a traditional motion for summary judgment and requires Diron either to disprove an element of Santibanez's claim or to prove one or more defenses as a matter of law.
Treating the no-evidence motion as a traditional summary-judgment motion, Santibanez argues that Diron is not entitled to judgment as a matter of law because he failed to prove that the "as is" provision applies, in that he failed to disprove all of the exceptions that can make an "as is" provision unenforceable. See Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161-62 (Tex. 1985) (stating that "as is" provision precludes buyer from proving that seller's conduct caused him any harm but noting exceptions to that rule); see also Smith v. Radam, Inc., 51 S.W.3d 413, 416 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Santibanez did not attach any evidence to his responsive pleading, apparently relying on his argument that the no-evidence motion converts to a traditional motion due to its defects and, thus, places the burden on Diron.
The trial court granted Diron's motions for summary judgment. Santibanez appeals.
Standard of Review
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If a trial court grants summary judgment on no-evidence and traditional grounds, we consider the ruling first under the no-evidence standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
No-Evidence Summary Judgment
Our first consideration in evaluating the no-evidence summary judgment is Santibanez's argument that the no-evidence motion fails to identify which element lacks evidentiary support, and, as a result, should be treated as a traditional summary-judgment motion with the burden of proof placed on Diron in all respects.
A. The no-evidence motion adequately identifies the elements challenged
In his no-evidence motion, Diron asserts that Santibanez purchased the vehicle "as is" without any warranties or representations, referring to various signed sales documents. He cites Prudential Insurance and argues that an "as is" provision negates causation in a DTPA claim. Next, he acknowledges that Prudential Insurance recognized exceptions to the no-causation rule but contends that Santibanez has no evidence that Diron engaged in any of those forms of conduct. See Prudential Ins., 896 S.W.2d at 162 (identifying exceptions to rule that "as is" aspect of transaction negates causation in DTPA claim).
The no-evidence motion asserts that Santibanez "has no proof that [Diron] committed any deceptive act or omission," has "[n]o evidence . . . [that] alleged promises . . . [or] false or misleading statements were made," and has "less than a scintilla of evidence" in support of his DTPA claim because of the "as is" provision. Finally, the motion states that Santibanez "cannot provide more than a scintilla of competent summary judgment evidence . . . [that] there was [a] violation of the Texas Deceptive Trade Practices Act" because it was an "as is" transaction, which "negates . . . causation" under the DTPA.
This pleading sufficiently identifies causation and misrepresentation as the elements of Santibanez's DTPA claim that Diron is asserting lack any evidentiary support. Thus, we reject Santibanez's argument that the motion should be evaluated as a traditional summary-judgment motion. See Doonan v. Wood, 224 S.W.3d 271, 273-74 (Tex. App.—El Paso 2005, no pet.) (rejecting argument that summary-judgment motion contained only global challenges and thus was defective as no-evidence motion).
B. Burden is on buyer to raise fact issue on "as is" exceptions
To prevail on a DTPA claim, a plaintiff must establish that he is a consumer; the defendant engaged in false, misleading, or deceptive acts; and these acts constituted a producing cause of the consumer's damages. TEX. BUS. & COM. CODE ANN. § 17.50(a)(1); Smith, 51 S.W.3d at 416. A producing cause means "a substantial factor in bringing about the injury and without which the injury would not have occurred." Cole v. Cassel, No. 01-06-00304-CV, 2007 WL 3227559, at *2 & n.2 (Tex. App.—Houston [1st Dist.] Nov. 1, 2007, no pet.) (mem. op.) (quoting Prudential Ins., 896 S.W.2d at 161).
When a contract contains an enforceable "as is" provision, a buyer "removes the possibility" that the seller's conduct was the producing cause of his harm. Prudential Ins., 896 S.W.2d at 161; Smith, 51 S.W.3d at 416. There are exceptions to the general rule that an "as is" clause negates causation, but the burden is on the buyer to raise a fact issue on one of those exceptions to avoid summary judgment on a DTPA claim. See Smith, 51 S.W.3d at 417 (granting summary judgment to seller on DTPA claim because buyer did not bring forth evidence to raise fact issue). Thus, the burden was on Santibanez to present evidence raising a genuine issue of material fact as to one or more of these exceptions. See TEX. R. CIV. P. 166a(i); Smith, 51 S.W.3d at 417; see also Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
C. Santibanez did not present any competent summary-judgment evidence to avoid judgment
In reviewing a no-evidence summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference from the evidence in the nonmovant's favor. See Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). This standard, though, requires the nonmovant to bring forward evidence, not mere assertions. Schulz v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 872, 876 (Tex. App.—Houston [1st Dist.] 1996, no writ). The long-standing rule has been that a party's pleadings generally do not constitute summary-judgment evidence, even if sworn or verified. H2O Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 616 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Schultz, 930 S.W.2d at 876.
Santibanez presented no evidence in opposition to Diron's no-evidence summary-judgment motion. He did not include an affidavit with his responsive pleading. He filed no documents. In short, he relied on the factual assertions in his petition, and argued that, taking those assertions as true, they are sufficient to avoid summary judgment. This is incorrect. "Pleadings and responses are not proper summary judgment evidence. For a nonmovant to raise a fact issue, there must be evidence to support [the petition's] assertions; mere assertions are not enough." Schulz, 930 S.W.2d at 876.
Because Santibanez had the burden to raise an issue of fact with regard to whether an exception applies to negate the "as is" provision of his contract and he failed to present any evidence in opposition to Diron's no-evidence summary-judgment motion, the trial court did not err by granting the motion. See Richardson v. SV Almeda I Ltd. P'ship, No. 01-11-01004-CV, 2013 WL 4680392, at *9 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.) (concluding that trial court did not err by granting no-evidence summary-judgment motion because nonmovant failed to present competent summary-judgment evidence in response to motion); see also Smith, 51 S.W.3d at 417 (concluding that buyer had burden to establish applicability of one or more exceptions to "as is" contractual provision and granting seller's no-evidence summary-judgment motion due to lack of evidence).
We overrule Santibanez's second issue. We do not reach his first issue, challenging the trial court's determination that Diron did not violate the DTPA.
Conclusion
We affirm.
Harvey Brown
Justice Panel consists of Justices Massengale, Brown, and Huddle.