David Ordonez, Individually and D/B/A O. D. Mechanical v. Miguel Solorio
08-13-00300-CV
| Tex. Crim. App. | Oct 30, 2015Background
- Solorio sued Ordonez (d/b/a O.D. Mechanical) for breach of contract, fraud/negligent misrepresentation, DTPA violations, and conversion over an allegedly improper HVAC installation and missing copper coils; Ordonez counterclaimed for breach of contract (nonpayment) and fraudulent inducement.
- Case originated in Rains County Justice Court; Solorio’s claim was later filed in Dallas County. Justice Court documents attempted to transfer/consolidate the Rains County action into the Dallas County suit.
- Solorio moved for traditional and no‑evidence summary judgment; he relied on his affidavit, his attorney’s affidavit, and deemed admissions from requests for admissions served (by certified mail) to Ordonez’s attorney before that attorney appeared in Dallas County.
- The trial court sustained objections to Ordonez’s affidavit, granted Solorio’s traditional and no‑evidence motions, awarded Solorio actual and treble (DTPA) damages plus attorneys’ fees, and rendered a take‑nothing judgment on Ordonez’s counterclaims.
- On appeal the court addressed (1) the adequacy of the no‑evidence motion, (2) whether the requests for admissions were properly served and thus deemed admitted, (3) sufficiency of proof for DTPA treble damages (knowing/intentional conduct), (4) whether Solorio’s traditional motion addressed fraudulent inducement, and (5) whether excluded portions of Ordonez’s affidavit raised fact issues on breach/counterclaim.
Issues
| Issue | Plaintiff's Argument (Solorio) | Defendant's Argument (Ordonez) | Held |
|---|---|---|---|
| Validity of no‑evidence MSJ | Solorio argued he met no‑evidence standard against Ordonez’s counterclaims/defenses | Ordonez argued Solorio did not specify elements as required by rule | Court: no‑evidence motion was defective for failing to identify elements; reversal as to no‑evidence grants |
| Use of deemed admissions | Solorio relied on requests for admissions (served to McMenamy) as conclusively establishing facts | Ordonez argued requests were not properly served because McMenamy was not yet his attorney of record in Dallas County | Court: requests were not properly served in Dallas County and thus not deemed admitted; trial court erred to rely on them |
| DTPA additional (treble) damages | Solorio claimed Ordonez knowingly/ intentionally misrepresented his HVAC expertise; affidavit and other evidence suffice | Ordonez argued there was no evidence of actual awareness of falsity; affidavit statements were conclusory | Court: Solorio failed to prove knowing/intentional conduct as a matter of law; treble damages reversed and remanded |
| Fraudulent inducement counterclaim | Solorio asserted his summary judgment evidence disproved Ordonez’s fraudulent inducement counterclaim | Ordonez argued Solorio failed to address elements (ownership misrepresentation) in his motion | Court: traditional MSJ insufficiently specified grounds re: fraudulent inducement; take‑nothing reversed and remanded for trial |
| Breach counterclaim & actual damages | Solorio argued evidence establishes liability and damages and Ordonez’s affidavit was inadmissible; MSJ properly granted | Ordonez relied on his affidavit (refusal to pay, unit worked, warranty) to raise fact issues | Court: trial court properly excluded conclusory/unsubstantiated portions of Ordonez’s affidavit; affirmed judgment as to liability and actual damages for conversion, negligent misrepresentation, DTPA (actual), and Ordonez’s breach counterclaim was correctly dismissed |
Key Cases Cited
- Shell Oil Co. v. Writt, 464 S.W.3d 650 (Tex. 2015) (standard of review for summary judgment)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidence reviewed in light most favorable to nonmovant)
- In re Estate of Swanson, 130 S.W.3d 144 (Tex. App.—El Paso 2003) (no‑evidence motion must specify elements)
- Payton v. Ashton, 29 S.W.3d 896 (Tex. App.—Amarillo 2000) (duty to respond to requests for admissions is conditioned on proper service)
- White v. Tricontinental Leasing Corp., 760 S.W.2d 23 (Tex. App.—Dallas 1988) (service on attorney who is not attorney of record does not create deemed admissions)
- St. Paul Surplus Lines Ins. Co. v. Dal‑Worth Tank Co., 974 S.W.2d 51 (Tex. 1998) (actual awareness required for DTPA treble damages)