Ordonez v. Solorio, 2015 Tex. App. LEXIS 11242

Background

Solorio sued Ordonez (individually and d/b/a O.D. Mechanical) for breach of contract, fraud/negligent misrepresentation, DTPA violations, and conversion arising from an allegedly improper HVAC installation; Ordonez counterclaimed for breach of contract and fraudulent inducement.
Case history: filed in Rains County Justice Court (2011), later refiled/added in Dallas County; disputes arose over service/consolidation and representation by attorney McMenamy.
Solorio moved for traditional and no‑evidence summary judgment; he relied in part on "deemed admissions" from requests for admissions mailed to McMenamy before McMenamy had appeared in the Dallas County case.
The trial court sustained Solorio’s objections to portions of Ordonez’s affidavit, granted both traditional and no‑evidence summary judgment, awarded Solorio actual damages, treble (additional) DTPA damages, and attorney’s fees, and rendered that Ordonez take nothing on his counterclaims.
On appeal the court (Texas court of appeals) affirmed summary judgment in part, reversed in part, and remanded: it held the no‑evidence motion was defective, the requests for admissions were not properly served (so could not be deemed admitted), DTPA treble damages were not established as a matter of law, fraudulent‑inducement counterclaim was not properly challenged by Solorio’s motion, but the conversion/other liability and award on certain claims were affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of no‑evidence summary judgment	Solorio argued no evidence supported Ordonez’s counterclaims/defenses (generally)	Ordonez argued Solorio failed to identify specific elements lacking evidence as required by Tex. R. Civ. P. 166a(i)	No‑evidence motion was defective for not stating elements; granting no‑evidence SJ was error
Deemed admissions/service of RFA	Solorio relied on requests for admissions mailed to McMenamy to create deemed admissions	Ordonez argued RFAs were not properly served because McMenamy was not yet attorney of record in Dallas County case	RFA service was improper (substance defect); admissions not deemed admitted and cannot be considered as summary‑judgment evidence
Additional (treble) DTPA damages	Solorio claimed Ordonez acted knowingly/ intentionally such that treble damages were warranted	Ordonez argued there was no evidence of actual awareness that conduct was unfair or deceptive; Solorio’s affidavit was conclusory	Treble damages reversed — Solorio failed to prove knowing/intentional conduct as a matter of law
Fraudulent inducement & breach counterclaims / affidavit evidence	Solorio moved for traditional SJ on counterclaims but did not set out grounds/elements for fraudulent inducement; he also objected to Ordonez’s affidavit	Ordonez argued his affidavit raised fact issues on breach/counterclaims and damages	Traditional SJ on fraudulent inducement was improper because Solorio failed to state grounds; portions of Ordonez’s affidavit were properly excluded as conclusory or lacking personal knowledge; take‑nothing on Ordonez’s breach counterclaim was affirmed, but fraudulent inducement reversed and remanded

Key Cases Cited

Shell Oil Co. v. Writt, 464 S.W.3d 650 (Tex. 2015) (standard of review for summary judgment)
Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (summary judgment standards)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (viewing evidence and reasonable inferences in summary judgment review)
St. Paul Surplus Lines Ins. Co. v. Dal‑Worth Tank Co., 974 S.W.2d 51 (Tex. 1998) (requirement of actual awareness for enhanced DTPA damages)
Payton v. Ashton, 29 S.W.3d 896 (Tex. App.—Amarillo 2000) (service is prerequisite to RFA response duty)
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (motion must give fair notice of grounds for summary judgment)
Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (material breach excuses other party’s performance)