OPINION
This is a summary judgment case. Miguel Solorio sued David Ordonez, Individually and d/b/a O.D. Mechanical, for breach of contract, fraud and negligent misrepresentation, DTPA violations, and conversion, arising' from Ordonez’s alleged improper installation of an HVAC system. Ordonez counterclaimed for breach' of contract and fraudulent inducement. Ordonez appeals from the trial court’s judgment granting Solorio’s traditional and no-evidence motion for summary judgment. We affirm in part and reverse and remand in part.
BACKGROUND
Solorio first filed his suit pro se against Ordonez in the Justice Court (Precinct 1) of Rains County, Texas, on June 30, 2011. He sought $3,500 in damages, alleging his air conditioner system was not adequately installed, his “coils were stolen,” and that Ordonez had installed a smaller unit than agreed upon. Ordonez, through his attorney J. Hamilton McMenamy, filed an answer in the Justice Court on July 22, 2011, raising affirmative defenses and a counterclaim for breach of contract.
On September 20, 2011, Solorio, now represented by attorney Carl Weinkauf, filed suit against Ordonez, individually and doing business as O.D. Mechanical, in County Court at Law No. 2 in Dallas County, Cause No. CC-11-06563-B. Solo-rio alleged he had contracted with Ordonez to install a new HVAC system in Solorio’s house specifically because Ordonez had represented that he was an expert in residential HVAC systems. Solorio alleged that Ordonez installed a smaller HVAC unit than the one agreed upon, utilized used parts in the installation, failed to install proper duct work, failed to repair and replace the drywall and properly seal holes, and improperly retained the copper coils from Solorio’s old HVAC unit. Solo-rio asserted causes of action for breach of contract, fraud and negligent misrepresentation, and DTPA violations arising from the faulty installation, and asserted a cause
On October 4, 2011, the Rains County Justice Court granted a motion by Solorio, who was now represented by attorney Weinkauf, to transfer the Justice Court proceedings to Dallas County Court at Law No. 2. On October 13, the Justice Court entered a “Judgment” ordering that its case “be and is re-filed in the Dallas County Court at Law No. 2 with Cause No. CC-11-06563-B[.]” Subsequently on February 16, 2012, the Justice Court signed an “Order of Consolidation of Cases,” ordering that the Justice Court case “is removed from this Court’s docket and consolidatéd into Cause No. CC-11-06563-B now pending in the County Court at Law No. 2 of Dallas County, Texas.”
On July 5, 2012, Ordonez, through his attorney McMenamy, filed an original answer, plea to the jurisdiction, plea in abatement, and counterclaim in the Dallas County Court at Law No. 2 lawsuit. In part, Ordonez argued 'that the Justice Court’s transfer of its case to Dallas Coünty was void. Ordonez raised numerous affirmative defenses and counterclaimed both for breach of contract (alleging nonpayment) and for fraudulent inducement (alleging Solorio misrepresented that he was the owner bf the residence).
Eleven months later in a combined motion, Solorio moved for traditional summary judgment on all his claims, and for both traditional and no-evidence summary judgment on Ordonez’s counterclaims and affirmative defenses. As summary judgment evidence, Solorio reliéd on his own affidavit, his attorney’s affidavit, and Ordo-nez’s “deemed admissions” arising from an unanswered request for admissions that had been served on attorney McMenamy on November 29, 2011, seven months before McMenamy filed Ordonez’s original answer in the Dallas County suit. Ordo-nez responded with his own affidavit. So-lorio objected to Ordonez's affidavit and asked that it be stricken. The trial court entered a written order sustaining Solo-rio’s objections to Ordonez’s affidavit and granted both Solorio’s traditional and no-evidenee motions.
In a “Final Summary Judgment,” the trial court ruled that Solorio’s summary judgment evidence established that Ordo-nez had breached the contract, converted Solorio’s property, negligently misrepresented himself to Solorio, and had knowingly and intentionally violated certain provisions of the DTPA. The trial court awarded Solorio actual damages, (with prejudgment interest) of $10,054.10, additional damages of $18,296.14 for knowing and intentional violations 'of the DTPA, and attorney’s -fees of $12,756.25.' The trial court ordered that Ordonez take nothing as to his counterclaims.
DISCUSSION
Ordonez, raises five issues on appeal. He contends the trial court erred: (1) in granting no-evidence summary judgment, because Solorio did not identify the specific elements of Ordonez’s counterclaims and affirmative defenses he was attacking; (2) in relying on the deemed admissions, because they were served on an attorney who had not yet appeared’as his attorney of record in the case; (3) in awarding additional damages under the DTPA, because the evidence did not establish any knowing or intentional conduct; (4) in rendering a take nothing judgment on his fraudulent inducement counterclaim, because Solorio failed to disprove at least one element of that claim; and (5) in rendering a take nothing judgment on his breach of contract counterclaim and in awarding actual damages to Solorio, because Ordonez’s affidavit raised fact issues on that counterclaim and. on those damages. We con-
No-Evidence Motion for Summary Judgment
In Issue One, Ordonez contends the trial court erred in granting no-evidence summary judgment, because Solorio did not identify the specific elements of Ordonez’s counterclaims and affirmative defenses he contended were not supported by evidence. We agree.
The no-evidence portion of Solorio’s summary judgment motion states:
Plaintiff is entitled to a summary judgment as a matter of law on Defendant’s counterclaims ..., as well as his affirmative defenses as Defendant lacks evidence to support one or more of the elements necessary for each, of these counterclaims and defenses.
The Rules of Civil Procedure require that a no-evidence motion “must state the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(i) (emphasis added). A no-evidence motion that fails to specify the elements as to which there is no evidence is defective and cannot support summary judgment, even if the nonmovant fails to- object to that deficiency below. See, e.g., In re Estate of Swanson,
We conclude. Solorio’s no-evidence motion 'was fundamentally defective because it did not state the elements as to which there is no evidence, and that the trial court therefor erred in granting no-evidence summary judgment on Ordonez’s counterclaims and affirmative defenses. Issue One is sustained.
Deemed Admissions
In Issue Two, Ordonez contends the trial court erred .in relying on his deemed admissions because they were served on an attorney who had not yet appeared in the-case. We agree.
The request for admissions was delivered- to attorney McMenamy before he filed Ordonez’s answer and became Ordo-nez’s attorney of record in the Dallas County suit. The request was thus never properly served under Rule 198.1 and Rule 21a. Consequently, Ordonez had no obligation to answer the' requests under Rule 198.2(a), arid his failure to respond did not give rise to the requests being deemed admitted under Rule 198.2(c). We also coriclude attorney McMenamy’s appearance as Ordonez’s attorney in the Rains County Justice Court suit did hot constitute an appearance in the Dallas County suit, because- the Rains County Justice Court did not have the power to transfer and consolidate its case into.the Dallas County suit. Moreover, we conclude that the failure to serve the request for admissions was a defect in substance, and that
Solorio’s attorney attempted to' serve Ordonez with the request for admissions in the Dallas County case on November 29, 2011, “by and through his attorney of record, J. Hamilton McMenamy” by certified mail. Ordonez’s first appearance in the Dallas- County suit, however, did not occur until seven months later on July 5, 2012, when J. Hamilton McMenamy as “Attorneys [sic] for Defendant” filed Ordonez’s original answer.
Rule 198 of the Texas Rules of Civil Procedure entitles a litigant to serve requests for admissions on another party. Tex. R. Civ. P. 198.1. Depending on the time the requests are served, the party to whom they are addressed has 30 to 50 days to respond. Tex. R. Civ. P. 198.2(a). Should the receiving party’s response be untimely or non-existent, each request is deemed admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c). “Yet, before one has an obligation to. an-, swer admissions or before any inaction on the part of the individual can give rise to deemed admissions, it is axiomatic that the requests for admissions be served.” Payton v. Ashton,
Rule 21a provides the manner in which service of items such as a request for admissions can be completed. Rule 21a provides that “every pleading, plea, motion, or other form of request required to be served under Rule 21 ... may be served by delivering a copy to the party to be served, or the party’s ... attorney of record[.]” Tex. R. Crv. P. 21a(a); see also Tex. R. Civ. P. 8 (requiring that all communications be made through the attorney in charge after that attorney has made an appearance on behalf of- the litigant). An attorney becomes an “attorney of record" of a party by filing pleadings or appearing in open court on a party’s behalf. See Smith v. Smith,
Thus, to be “served” the request for .admissions .was required to be mailed to Ordonez or to his attorney of record. Sobrio did neither. The request for admissions was mailed to attorney McMena-my before he became an attorney of record for Ordonez. McMenamy did not become Ordonez’s attorney of record until he filed Ordonez’s original answer seven months later. Service on an attorney before that attorney becomes the party’s attorney of record is not valid service under Rule 21a, and a request for admissions so served is neither properly served under Rule 198.1 nor deemed admitted under Rule 198.2(c). See White v. Tricontinental Leasing Corp.,
Requests for admission that are not deemed admitted are not proper summary judgment evidence and will not be considered in reviewing the adequacy of the summary judgment evidence. See Dailey v.
Solorio argues that attorney McMenamy was Ordonez’s attorney of record when he served his request for admissions, because by that time, McMenamy had already filed an answer on behalf of Ordonez in the Rains County Justice Court suit, and the Justice Court had transferred and consolidated its suit with the Dallas County suit. But, as Ordonez points out, there is simply no statutory or other authority permitting a trial court in one county to transfer a case to a court in another county or to unilaterally consolidate those cases. While the Texas Constitution and the Texas Government Code authorize courts within the same county to transfer cases and exchange benches (Tex. Const. art. V, § 11; Tex. Gov’t Code Ann. §§ 24.003 (West Supp.2014), 74.094 (West 2013)), absent statutory authority, a court in one county lacks the power to transfer a pending lawsuit to another county. Flores v. Peschel,
We note that Ordonez filed a motion to continue the summary judgment hearing, which contained a “special exception” to Solorio using as summary judgment evidence any discovery “served” in November 2011
Failure to obtain written rulings on objections to summary judgment evidence waives the issue, unless the record contains an implicit ruling by the trial court. Trinh v. Campero,
The Rules of Civil Procedure, however, distinguish between defects of form and defects of substance in summary judgment evidence. Tex. R. Civ. P. 166a(f). A defect in form requires both an objection and ruling in the record to argue the defect as a ground for reversal on appeal. Id.; Giese v. NCNB Tex. Forney Banking Ctr.,
The Summary Judgment Evidence
In Issues Three-Five, Ordonez' complains about the- adequacy of the summary judgment evidence. He contends Solo'rio’s evidence did not establish as a matter of law that he acted knowingly and. intentionally so as to .support the award of additional damages under the DTPA, that Solorio failed to disprove an element of his fraudulent inducement counterclaim, and that his affidavit raised fact .issues to avoid summary judgment on his breach of contract counterclaim and on Solorio’s actual damages. In this respect, Ordonez concedes there is sufficient evidence to support summary judgment for Solorio on liability and damages for $1,200 for conversion of the eopper coils. He also concedes the evidence supports liability as to Solorio’s causes of action for breach of contract, negligent misrepresentation, and DTPA violations, but asserts that fact issues remain as to the damages for those claims.
In reviewing the adequacy of the summary judgment evidence, we apply the well-established standards of review for traditional summary judgments. We review the trial court’s grant of summary judgment de novo. Shell Oil Co. v. Writt,
Additional DTPA Damages
Under the Deceptive Trade Practices Act, a consumer may recover additional damages of up to three times the amount of actual damages if the trier of fact finds that the defendant’s conduct was committed knowingly or intentionally. Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (West 2011); Bus. Staffing, Inc. v. Jackson Hot Oil Serv.,
Based on what I later discovered, the representations made by Mr. Ordonez regarding his ability and expertise in installing HVAC , units were false when Mr. Ordonez made them, and Mr. Ordo-nez knew they were false at that time, or he made, them with a reckless disregard for the truth of the things he said.
Ordonez contends. this was insufficient to show actual awareness that his conduct was unfair or deceptive. Solorio concedes that to be entitled to additional DTPA damages, he was required to .show that Ordonez acted with actual awareness , that his conduct was unfair or deceptive. See St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co.,
Ordonez’s statements in his affidavit that Ordonez knew the representations were false or he made them with reckless disregard of the truth are conelusory and are not competent summary judgment evidence. See Souder v. Cannon,
Solorio argues, however, that Ordonez’s knowing and intentional conduct - can be inferred from his evidence that a different HVAC unit was installed than agreed upon in what he calls “a classic case of ‘bait and switch’.” But, Solorio moved for additional damages solely on the basis of Ordonez’s representations about “his ability to properly install the HVAC Unit[J” Evidence of a “bait and switch” was not relevant to Ordonez’s ability and expertise in installing residential HVAC systems, which was Solorio’s sole ground for the recovery of additional DTPA damages.
The only other possible relevant evidence contained in Solorio’s' affidavit related to á Guadalupe Monroy and her parents, who Solorio claimed had a “similar problem with Mr. Ordonez” a few days before he hired Ordonez.
Ordonez’s Counterclaim for Fraudulent Inducement
Ordonez raised a counterclaim for fraudulent inducement based on the allegation that Solorio misrepresented he owned the residence where the HVAC unit was installed. Solorio moved for both no-evidence and traditional summary judgment on Ordonez’s counterclaims. As concluded above, the no-evidence motion was defective, and thus Solorio’s burden on traditional summary judgment was to disprove as a matter of law at least one element of Ordonez’s fraudulent inducement counterclaim. Science Spectrum, Inc. v. Martinez,
In Issue Four, Ordonez contends that the trial court could not grant traditional summary judgment on the fraudulent inducement counterclaim, in- part, because nothing in Solorio’s summary judgment motion or evidence mentions the fraudulent inducement counterclaim or the facts connected to it, ie., Solorio’s representations about his ownership of the residence where the work took place. While Solorio argues in his brief that his affidavit and evidence disproved several elements of the fraudulent inducement counterclaim, he made none of these arguments in his motion for summary judgment. Solorio’s complete statement in his motion concerning traditional summary judgment on Or-donez’s counterclaims was:
Further, if Plaintiff s No Evidence Motion for Summary Judgment is not granted on any of Defendant’s counterclaims or defenses, Plaintiff is entitled to summary judgment as a matter of law on Defendant’s counterclaims and defenses, as Plaintiff has presented uncon-troverted summary judgment evidence disproving a necessary element to each of these counterclaims and defenses.
We conclude that this statement is not sufficient to state a ground for summary judgment.
Rule 166a(c) requires that the motion for summary judgment state specific reasons for the summary judgment. Travis v. City of Mesquite,
We are guided in our analysis by the Dallas Court of Appeals’ decision in Murphy v. McDaniel, No. 05-01-00516-CV,
Likewise, Solorio’s motion fails to challenge any particular aspect of Ordonez’s counterclaim for fraudulent inducement. His motion does not set out the elements of fraudulent inducement. It does not discuss or challenge any of the elements or attempt to correlate any of the attached evidence to the counterclaim for fraudulent inducement. The motion states only that Solorio is entitled to summary judgment on Ordonez’s counterclaims, sets out the summary judgment standard, and asserts the conclusion that the “uncontroverted summary judgment evidence” meets that standard. We conclude this is legally insufficient to state a ground for summary judgment. We sustain Issue Four.
Ordonez’s breach of contract counterclaim and Solorio’s actual damages
In Issue Five, Ordonez contends that his affidavit raised material fact issues precluding summary judgment on his breach of contract counterclaim and the award of actual damages to Solorio, and that the trial court abused its discretion in granting Solorio’s objections to his affidavit.. As mentioned above, Ordonez concedes there is sufficient evidence to support summary judgment for Solorio on liability and damages for $1,200 for conversion of the copper coils, and on liability as to Solorio’s causes of action for breach of contract, negligent misrepresentation, and DTPA violations, but asserts that fact issues remain as to actual damages for those causes of action and as to his counterclaim for breach of contract.
In particular,. Ordonez points out that in his affidavit, he testified that “Solorio refused to pay” and was “attempting to defraud [him] of a portion of [his] sales price,” and that the HVAC unit worked “perfectly” after installation when his workers left the property. Ordonez also testified that the HVAC unit had a one-year warranty and that he could “have repaired any. problem” with the unit but that Solorio never informed him of any issues with the unit. Ordonez contends this testimony creates fact issues concerning Solorio’s damages and Ordonez’s breach of contract counterclaim.
Since the trial court granted Solo-rio’s objections to Ordonez’s affidavit and did not consider it in granting summary judgment, we must first determine what portions of that affidavit if any the trial court improperly refuged to consider. We review a trial court’s ruling concerning the admission or exclusion of summary judgment evidence for an abuse of discretion. First State Bank of Mesquite v. Bellinger & Dewolf, LLP,
Solorio objected to the statement in Ordonez’s affidavit'that he was attempting to defraud Ordonez of a portion of the sales price as, among other things, a legal and unsupported factual conclusion. Ordo-nez’s affidavit does not otherwise provide facts' supporting this conclusion. Legal conclusions and conclusory statements in an affidavit, without more, are insufficient to establish a right to summary judgment as a matter of law. See Fairbank v. First American Bank, S.S.B., No. 05-06-00005-CV, 2007 WL-2247371, at *2 (Tex.App.—Dallas August 7, 2007, no pet.) (mem. op., not designated for publication) (in suit on note and guai-anty, affiant’s statements regarding principal balance and accrued interest owed, which did not présent Underlying facts or documentation such as a ledger sheet or any other document with supporting facts regarding history of the account, was conclusory and insufficient -to support entitlement to summary judgment as a matter of law) (citing Schultz v. Gen. Motors Acceptance Corp.,
Likewise, Solorio -objected to the statement-that the HVAC unit worked perfectly after installation when Ordonez’s workers left the property because it failed to. show any basis of personal knowledge and was an unsupported factual conclusion.' Wé agree. Ordonez’s affidavit does not establish how he personally knew the unit was working perfectly after his workers left the property, and the conclusion that the unit was “working perfectly” is not supported by any underlying facts or documentation supporting that conclusion.. In this regard, to the extent Ordonez relied on the .documents attached to his -affidavit as support, the trial court properly sustained 'Solorio’s objection that there was no predicate provided in the affidavit to support admission of those documents.
The only other statements Ordonez relies on to argue there were fact issues as to his counterclaim for breach of contract and Solori'o’s actual damages is that Solo-rio refused' to pay and that Ordonez could have repaired any problems if Solorio had informed him of any problems. Even -if we assume that these statements were admissible,- they were insufficient to avoid summary judgment for actual damages or to raise a fact issue as to the counterclaim for breach of contract.
Solorio’s affidavit set out the myriad of problems arising from the faulty installation and the damages he suffered. The trial court properly exclüdéd Ordonez’s contrary testimony in his affidavit that the unit was working perfectly after installation and that Solorio was attempting to defraud him.' Consequently) there is no evidence contrary to Solorio’s affidavit establishing the damages he suffered due to the deficiencies in the instállation. Further, Solorio’s evidence established Ordo-nez’s material breach of the agreement thereby excusing any further payment. See Mustang Pipeline Co. v. Driver Pipeline Co.,
Moreover, there no evidence that Solorio was required to make a warranty claim before seeking damages. To the extent Ordonez is arguing that Solorio could have mitigated his damages if he had informed Ordonez of the problems and made a warranty claim, he failed to raise a fact issue on mitigation. To raise a fact issue on mitigation, Ordonez was required to show not only that Solorio had failed to mitigate but also the amount by which Solorio could have reduced his damages. See Neel v. Tenet HealthSys. Hosps. Dallas, Inc.,
CONCLUSION
We affirm the trial court’s judgment in part and reverse and remand in part. We affirm the judgment as to liability and actual damages for Solorio under his conversion, negligent misrepresentation, and DTPA causes of action, and we affirm the judgment that Ordonez take nothing on his breach of contract counterclaim. We reverse the judgment on Solo-rio’s claim for additional damages under the DTPA and that Ordonez take nothing on his'fraudulent'inducement counterclaim and remand' those claims for trial. Because we are remanding on Ordonez’s counterclaim for fraudulent inducement, which if proven could be a complete defense to enforcement of the agreement,
Larsen, J. (Senior Judge), sitting by assignment
Notes
. This case was transferred from our sister court in Dallas, and we follow the precedent of the Dallas Court to the extent required by Tex R. App. P. 41.3.
. Solorio attempted to serve Ordohez with the request for admissions in the Dallas County case on November 29, 2011, through attorney McMenamy.
. In any event, we doubt the installation of a different HVAC unit alone would establish as a matter of law that it was done with an actual awareness that the conduct was unfair or deceptive.
. Solorio’s affidavit states: "I also found out that another group, Ms. Guadalupe Monroy and her parents, had had a similar problem with Mr. Ordonez, when Mr. Ordonez failed to properly make repairs to the walk-in cooler in their restaurant, A few days before I hired Mr. Ordonez, they paid Mr. Ordonez over $6,000.00, but the walk in cooler would never cool. They also had to hire and pay someone else to do the work the Mr. Ordonez and his employees failed to do.” '
. Fraudulent inducement is a valid defense to enforcement of a contract. Forman v. Classic Century Homes, Ltd., No. 02-12-00362-CV,