Opinion
No. 08-02-00302-CV
July 1, 2004.
Appeal from the County Court at Law Number 1 of Midland County, Texas, (TC#CC-10294).
Charles W. Settle, Jr., Henslee Fowler Hepworth Schwartz, LLP, Fort Worth, TX, for appellant.
R. Mike Borland, Borland Borland, Midland, TX, for appellee.
Before Panel No. 1, LARSEN, McCLURE, and CHEW, JJ.
MEMORANDUM OPINION
In his sole issue on appeal, John M. Young argues that the trial court erred in granting a summary judgment in favor of Flippen Aviation, Inc. We affirm in part and reverse and remand in part.
Procedural Background
Flippen Aviation sued Young, claiming that Young owed it $20,834.19 for repairing his airplane. In accordance with Texas Rule of Civil Procedure 185, Flippen Aviation attached an affidavit to its petition, stating that the claim is just and true, that it is due, and that all just and lawful offsets, payments, and credits have been allowed. Flippen Aviation also attached a copy of the invoice for the repairs.
Young's answer contained a verified denial. See Tex. R. Civ. P. 185. The answer also raised the affirmative defense of failure of consideration. Specifically, Young claimed that although Flippen Aviation promised to rebuild the plane's engine before Thanksgiving 1998 for $15,000 to $16,000, the repairs were defective and were not completed until May 1999. Young also filed a counterclaim for breach of contract. He again alleged that the repairs were defective and were not completed until May 1999. He sought damages of $23,000; $20,000 representing the fair rental value of the plane for the time he was deprived of its use and $3,000 representing the amount he paid another party to remedy the defect.
Flippen Aviation moved for a traditional summary judgment on its claim and for a no-evidence summary judgment on Young's counterclaim. The trial court granted the motion. Flippen was granted relief in the amount of the invoice, minus an offset of $1,722, leaving a net recovery of $19,112.19, excluding interest and attorney's fees.
Summary Judgment Evidence
It is undisputed that in August 1998, Young made a "gear-up landing," which resulted in a "prop strike." After this incident, Young took the plane to Kermit Steria at West Winds Aviation to determine if any repairs were needed. Young wanted the work completed by Thanksgiving. Steria was working on another plane, and Young became frustrated because Steria was unable to get to his plane.
Steria's Deposition
Steria testified that a directive by the Federal Aviation Administration requires a plane's engine to be inspected after a prop strike occurs. If the inspection reveals damage to the engine, it must be repaired before it may be put back in service.
Because he was unable to meet Young's Thanksgiving deadline, Steria contacted Glenn Flippen of Flippen Aviation on approximately October 20 to see if he could do the mandatory inspection. Flippen said that he believed he could complete the inspection in two or three weeks or by Thanksgiving, but he did not guarantee that he could get it done by then. Steria understood that it would take longer if damage was found, and he believed that Young understood that as well.
When Flippen's wife came to get the engine, Young happened to be at Steria's hangar, and Steria informed him that Flippen was going to do the inspection because he could not complete it by Young's deadline. According to Steria, Young said, "okay, you know, as long as it's done by Thanksgiving."
On November 10, Flippen informed Steria that the engine's journals were scarred and that he could not complete the repairs by Thanksgiving. At the end of November, Flippen informed Steria that the inspection revealed that the cam and lifters were bad, but everything else had been inspected and was ready for reassembly. Steria then advised Young that since he was already having these repairs made, it would be a good idea to overhaul the engine. Flippen had told Steria that he would charge $15,000 to $16,000 for the overhaul. Young initially did not want to do the overhaul because of the cost. He believed that he could buy an overhauled engine from the manufacturer for $22,000 to $23,000 and he would not have to wait for Flippen to do the work. Eventually, however, Young told Steria "to go ahead" with the engine overhaul, and Steria informed Flippen that Young had agreed to the overhaul "at that price." Flippen then said that he would complete the engine by the first week in January at the latest.
Over the following months, Flippen encountered numerous difficulties in getting parts for the engine. By April 1, he received the last part and he completed the work on April 8. Steria testified that once Flippen received the last part for the engine, he took a reasonable amount of time to reassemble the engine.
When Steria received the engine from Flippen, he installed it and took the plane on a test flight. During the test flight, the engine malfunctioned and the plane almost crashed. Steria determined that the malfunction was caused by Flippen's failure to change a collar. Flippen admitted to him that this was a mistake. Steria obtained the collar and reassembled the engine. Contrary to Young's pleadings, Steria testified that he did not charge Young $3,000 to reassemble the engine; he only charged him $30. This amount did not reflect the actual amount of labor that was required to fix the defect.
Steria believed that Flippen's total bill was going to be between $15,000 and $16,000. Approximately three days before Flippen completed the work, Steria asked him if he was still "within budget" and Flippen said that he was. Steria also indicated that Flippen could have used cheaper cylinders than the ones he used.
Young's Deposition
Young testified that Steria did not confer with him before deciding to have Flippen do the engine inspection. He did not want Flippen to do the work, "but it was obvious it was too — you know, I didn't jump up and down and say, `Hey, you're not leaving, put that engine back.'" Steria told him that Flippen promised to have the plane "ready by Thanksgiving" and that "the main thing was that he was going to disassemble it, inspect it, put it back together and have it back over here [by Thanksgiving], because that was the first thing." At that time, Flippen did not provide a price estimate; "this was just for an inspection."
Steria later informed him that Flippen had started overhauling the engine without conferring with Steria. Young stated that he "went through the roof" when he learned this news. Young told Steria that he would prefer to buy a remanufactured or new engine. He estimated that a factory remanufactured engine would cost between $18,000 and $20,000 and a new engine would cost between $20,000 and $23,000. Steria advised him that he probably needed the overhaul and he should let Flippen do it. Steria told Young that Flippen said the work would cost about $15,000. Steria also informed Young that the plane would not be ready by Thanksgiving, but that "Flippen had guaranteed it would be ready by Christmas."
Young testified that he never authorized Steria to subcontract the work. Other than seeing Flippen's wife take the engine away, Young never had any contact with Flippen or any of his employees. Young also testified that Steria initially told him it was going to cost $3,000 to reassemble the engine because of Flippen's failure to replace the collar. But Steria later told him that he did not charge anything because "he felt so bad about the screw-up on this engine and about the time and everything." Young did not know whether he actually paid Steria anything for the work.
The Traditional Summary Judgment as to Flippen Aviation's Claim Standard of Review
We apply a de novo standard of review to summary judgments. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 904 (Tex. App.-El Paso 2001, pet. denied). We will uphold a traditional summary judgment if the movant establishes that no material fact issue exists and that it is entitled to judgment as a matter of law. Id. We view the evidence in the light most favorable to the respondent. Id.
When a plaintiff moves for summary judgment, it must conclusively prove its entitlement to prevail on each element of its cause of action as a matter of law. Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25, 28 (Tex. App.-Dallas 1992, no writ). But the plaintiff is not under any obligation to negate affirmative defenses. Id. Instead, if the defendant relies on an affirmative defense, such as failure of consideration, he must come forward with summary judgment evidence sufficient to raise an issue of material fact regarding the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Parker v. Dodge, 98 S.W.3d 297, 300-01 (Tex. App.-Houston [1st Dist.] 2003, no pet.); Thompson, 840 S.W.2d at 28; see also Brown v. Clark, 557 S.W.2d 558, 560 (Tex.Civ.App.-Texarkana 1977, no writ) (applying this rule in a suit on a sworn account).
Failure of Consideration
In his response to the summary judgment motion and on appeal, Young raises several arguments, including failure of consideration. The defense of failure of consideration defeats summary judgment if the respondent alleges facts and presents evidence that the consideration was not received. Parker, 98 S.W.3d at 301. Young argues that there was a failure of consideration in this case because the repair and overhaul of the engine were defective.
It is undisputed that Flippen's overhaul of the engine was seriously defective. Steria testified that the plane almost crashed when he took it for a test flight and that Flippen acknowledged that he made a mistake. To fix the problem, Steria had to disassemble the engine again, install a new part, clean all the parts, and then reassemble it again. It took him approximately five days to complete this work. This evidence raises a genuine issue of material fact as to whether the consideration — the proper repair and overhaul of the engine — was received.
Flippen Aviation suggests that its defective performance was rendered moot by the trial court's allowance of an offset. We disagree.
In its petition, Flippen Aviation alleged that Young owed it $20,834.19 after all offsets. In its summary judgment motion, Flippen Aviation continued to claim that Young owed it $20,834.19. Nevertheless, the trial court did not grant a judgment for this amount. The court applied an offset, resulting in a judgment of $19,112.19, exclusive of interest and attorney's fees. The court explained in the written judgment how it determined the offset amount:
[T]he Court finds that Defendant claims in his summary judgment response a delay of "10 to 14 days" in his use of the aircraft in question due to remedial work done on plaintiff's repairs, and that plaintiff has stipulated to an offset for 14 days of use based on defendant's deposition testimony of rental value. The Court further finds that Defendant testified that he flew the aircraft for 300 hours in 1997 and 200 hours in January through August, 1998 (2/3 of that year) which yields a usage average of .82 hours per day, at a rate stated by defendant of $150.00 per hour.
Young did not move for summary judgment on his affirmative defense. Therefore, the trial court was not authorized to grant him any relief based on the defense. See Gainesville Oil Gas Co. v. Farm Credit Bank, 795 S.W.2d 826, 828 (Tex. App.-Texarkana 1990, no writ). Young merely relied on the affirmative defense of failure of consideration to defeat Flippen Aviation's summary judgment motion. To defeat the motion, all Young was required to do was raise a fact issue regarding the defense. The explanation of the offset in the judgment implicitly recognizes that Young raised a fact issue and further implicitly finds that the repairs and overhaul were defective. In ruling on a summary judgment motion, the trial court is limited to determining whether a genuine issue of material fact exists; the court is not authorized to find facts. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997). Because a fact issue exists, the trial court should have denied the summary judgment motion and allowed a fact finder to determine whether Flippen Aviation's performance was defective and if so, whether the defective performance amounted to a complete or only a partial failure of consideration. See Parker, 98 S.W.3d at 301.
The No-Evidence Summary Judgment as to Young's Counterclaim Standard of Review
We will uphold a no-evidence summary judgment if there is no more than a scintilla of evidence to support the respondent's claim. Steinkamp v. Caremark, 3 S.W.3d 191, 193-94 (Tex. App.-El Paso 1999, pet. denied). As with a traditional summary judgment, we view the evidence in the light most favorable to the respondent. Id. at 194.
Respondent's Burden
A motion for a no-evidence summary judgment must state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i). If the movant complies with this requirement, "[t]he court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Id. The respondent "is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements." Id. 1997 cmt. Thus, a proper no-evidence motion shifts the burden to the respondent, and the respondent must then direct the trial court to summary judgment evidence that raises a genuine issue of material fact regarding each challenged element. Lattrell v. Chrysler Corp., 79 S.W.3d 141, 147-49 (Tex. App.-Texarkana 2002, pet. denied); Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722-23 (Tex. App.-Houston [1st Dist.] 2003, no pet.); Walton v. City of Midland, 24 S.W.3d 853, 858 (Tex. App.-El Paso 2000, no pet.), abrogated on other grounds by In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex. App.-El Paso 2003, no pet.); Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 493-94 (Tex. App.-El Paso 1999, pet. denied).
In his counterclaim for breach of contract, Young asserted that Flippen agreed to complete the repairs on the engine by Thanksgiving 1998, but did not actually complete the repairs until May 1999. Young alleged that this delay caused him damages of $20,000, which was the fair rental value of the plane for the time he was deprived of its use. Furthermore, Young alleged that the repairs were defective and that Young paid Steria approximately $3,000 to remedy the defect.
In the "no-evidence" portion of its summary judgment motion, Flippen Aviation argued that it was entitled to summary judgment on Young's counterclaim for breach of contract "on the ground that there is no evidence that [it] agreed to complete these repairs within any set time frame, or that Young paid $3,000.00 to remedy any defect in the repairs." In his response, Young did not specifically address the no-evidence portion of the summary judgment motion. He made only one brief reference to his counterclaim in the part of his response that dealt with his affirmative defense of failure of consideration. Young wholly failed to address the two specific elements challenged in the summary judgment motion. The response did not direct the court to any evidence that Flippen agreed to complete the repairs by Thanksgiving 1998 or that Young paid Steria $3,000 to cure the defective repair. Therefore, Young failed to satisfy his burden and the trial court properly granted summary judgment as to his counterclaim.
On appeal, Young does not argue that the summary judgment motion was deficient infailing to specify the elements as to which there is no evidence or that the motion was insufficientto support the judgment. Young's opening brief largely tracks his summary judgment response and, like that response, only mentions the counterclaim in passing. In his reply brief, Youngpoints to two invoices from Steria, which he now claims show Steria's charges for repairing thedefect. If Young intended to rely on these invoices to raise a fact question, he should havepointed them out to the trial court. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presentedto the trial court by written motion, answer or other response shall not be considered on appeal asgrounds for reversal.").
Conclusion
For the reasons stated herein, Young's issue on appeal is sustained in part and overruled in part. The trial court's judgment is reversed insofar as it summarily disposed of Flippen Aviation's claim against Young, but is affirmed insofar as it summarily disposed of Young's counterclaim against Flippen Aviation. The cause is remanded for further proceedings consistent with this opinion.