Pablo TELLO, Appellant v. BANK ONE, N.A. and Banc One Acceptance Corp., Appellees.
No. 14-04-00888-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Jan. 9, 2007.
109-126
CHARLES W. SEYMORE, Justice.
b. Injury
Appellees argue that there is no evidence that they proximately caused injury to Roberto “since [Roberto] admits that [Jorge] committed fraud long before his involvement with the Ontiveroses and Med Care....” Roberto, however, is complaining about being injured by a separate, second act following Jorge‘s initial act of fraud, and his petition makes it very clear he is complaining that appellees’ acts proximately caused him this second injury. Appellees’ allegations, by focusing solely on Jorge‘s first act of malfeasance, do not respond to Roberto‘s claim and therefore provide no valid grounds for summary judgment. We conclude the trial court erred by granting summary judgment on this ground.
Conclusion
We reverse the trial court‘s order granting summary judgment in favor of appellees and remand to the trial court for further proceedings.
CHARLES W. SEYMORE, Justice.
Appellant, Pablo Tello, appeals a summary judgment in favor of appellees, Bank One, N.A. and Bank One Acceptance Corp., on their claim against Tello for breach of a vehicle lease agreement and on Tello‘s counterclaims for DTPA violations, common-law fraud, and breach of contract. We affirm.
I. BACKGROUND
Tello entered into a written agreement to lease a truck from Randall Reed Ford. The lease shows Randall Reed Ford as lessor and Tello as lessee. In the same agreement, Randall Reed Ford assigned the lease and the vehicle to Banc One Texas Leasing Corp. Subsequently, Banc One Texas Leasing Corp. merged with Banc One Acceptance Corp. By virtue of this merger, Banc One Acceptance Corp. became the owner/lessor of the vehicle. The title to the vehicle shows Bank One Texas N.A. as lienholder. Bank One Texas N.A. subsequently merged with Bank One, N.A. By virtue of this merger, Bank One, N.A. became lienholder.
Bank One, N.A. and Banc One Texas Leasing Corp. eventually sued Tello, alleging he defaulted on the lease by failing to make some monthly payments.1 In his answer, Tello raised the affirmative defenses of failure of consideration, fraudulent inducement, and equitable estoppel. He also asserted counterclaims for DTPA violations, common-law fraud, and breach of contract, seeking to recover his own alleged damages and offset any recovery by the Bank on its breach of contract claim. His affirmative defenses and coun-
Bank One, N.A. and Banc One Acceptance Corp. moved for summary judgment on their claim against Tello and on his counterclaims. The trial court signed a “First Amended Summary Judgment” on July 27, 2004, granting summary judgment in favor of Bank One, N.A. and Bank One Acceptance Corp. on their claim against Tello and on his counterclaims.2 The trial court awarded the Bank $29,366.24 in damages, $13,933.86 for attorney‘s fees and costs, and post-judgment interest.3 The trial court also ordered Tello to surrender the vehicle to the Bank.4
II. DISCUSSION
In six issues, Tello contends the trial court erred by (1) granting the Bank‘s motion for summary judgment on its breach of contract claim; (2) granting the Bank‘s motion for summary judgment on Tello‘s affirmative defense of fraudulent inducement; (3) granting the Bank‘s motion for summary judgment on Tello‘s affirmative defense of equitable estoppel; (4) granting the Bank‘s motion for summary judgment on Tello‘s DTPA counterclaim; (5) generally granting the Bank‘s motion for summary judgment; and (6) granting the Bank‘s motion for summary judgment on its claim for damages.
For a plaintiff to prevail on a motion for summary judgment when, as here, the defendant has asserted a counterclaim, the plaintiff must prove, as a matter of law, each element of its cause of action and show it is entitled to summary judgment on the counterclaim. See First State Bank of Athens, Mabank Branch v. Purina AG Capitol Corp., 113 S.W.3d 1, 4 (Tex.App.-Tyler 1999, no pet.); see also Rush v. Barrios, 56 S.W.3d 88, 97 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). A plaintiff asserting a traditional motion for summary judgment in opposition to a defendant‘s counterclaim must disprove at least one essential element of the counterclaim as a matter of law.5 See
If, as here, the non-movant relies on an affirmative defense to oppose the summary judgment motion, he must provide sufficient summary judgment evidence to create a fact issue on each element of the defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Anglo-Dutch Petroleum Int‘l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). The non-movant is not required to prove the affirmative defense as a matter of law; raising a fact issue is sufficient to defeat summary judgment. See Brownlee, 665 S.W.2d at 112; Anglo-Dutch Petroleum, 193 S.W.3d at 95.
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). We take all evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id.
A. The Bank‘s Breach of Contract Claim
In his first stated issue, Tello contends the trial court erred by granting the Bank‘s motion for summary judgment on its breach of contract claim. Tello makes one argument, consisting of two-and-a-half-page pages, to support all his issues challenging the summary judgment with respect to his liability to the Bank and with respect to his counterclaim. At the outset of this argument, he makes a bare assertion that a genuine issue of material fact existed on the Bank‘s breach of contract claim. However, in the argument that follows, he never asserts that the Bank failed to prove the elements of its breach of contract claim. Instead, in what little argument he does advance, he mentions only the factual allegations which form the basis of his counterclaim and affirmative defenses. Therefore, to the extent, he contends the Bank failed to prove the elements of its breach of contract claim, he has waived any such contention by failing to include any argument.6 See
We will next address Tello‘s fourth issue, in which he challenges the summary judgment on his DTPA counterclaim.7 At the outset of his argument, he generally contends that a genuine issue of material fact existed on his DTPA counterclaim and refers to the DTPA as 17.46(b) of the
Nonetheless, in his pleading, Tello alleged that the Bank violated the DTPA by: (1) representing “that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law,” see
Although Tello asserted that the Bank violated these provisions, the factual allegation he pleaded was that the Randall Reed Ford salesperson misrepresented the lease was a purchase agreement. In support of its motion for summary judgment, the Bank presented an affidavit of its representative who averred as follows: the Bank made no representations to Tello before, during, or at the time of execution of the lease; the Bank had no representative present at the time of the transaction; the Bank was purely a financial institution which purchased the vehicle and the lease from Randall Reed Ford; and Randall Reed Ford was not an agent of the Bank or authorized by the Bank to make any representations to Tello.8 Therefore, the Bank negated the assertion that it made any misrepresentations to Tello as alleged in his counterclaim and shifted the burden
In response to the motion for summary judgment and on appeal, Tello merely referred to the contents of his affidavit attached to his response.10 In the affidavit, he averred that he does not speak or write English and an unnamed Randall Reed Ford salesperson led him to believe the lease was a purchase agreement. Therefore, despite the Bank‘s, evidence, Tello continued to rely solely on the Randall Reed Ford salesperson‘s alleged misrepresentation to purportedly create a fact issue on his DTPA counterclaim against the Bank. However, in response to the motion for summary judgment and on appeal, Tello offered no argument, authority, or theory to show that the Bank entities who are the current lessor and lienholder may be liable under the DTPA for the Randall Reed Ford salesperson‘s alleged misrepresentation.
We recognize that we must “construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.” Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); see
C. Tello‘s Affirmative Defenses
In his second and third issues, Tello contends he raised a fact issue on his affirmative defenses of fraudulent inducement and equitable estoppel sufficient to defeat the Bank‘s motion for summary
Nevertheless, in response to the motion for summary judgment and on appeal, Tello relied solely on the Randall Reed Ford salesperson‘s alleged misrepresentation to purportedly raise a fact issue on his affirmative defenses to the Bank‘s breach of contract claim. However, Tello offered no argument, authority, or theory to show that the Bank entities who are the current lessor and lienholder should be bound by the Randall Reed Ford salesperson‘s alleged misrepresentation or otherwise subject to any defenses Tello may have had against Randall Reed Ford. Again, if we were to craft such an argument on Tello‘s behalf, we would improperly become his advocate and improperly consider an issue not expressly presented to the trial court in his summary judgment response. Accordingly, Tello has not demonstrated that he raised a genuine issue of material fact issue on his affirmative defenses. We overrule his second and third issues.
In his fifth issue, Tello generally states that the trial court erred by granting the Bank‘s motion for summary judgment. Because we have addressed all the arguments purportedly raised in his first five issues with respect to his liability on the Bank‘s breach of contract claim and with respect to his counterclaim, we overrule his fifth issue.
D. The Bank‘s Damages
In his sixth issue, Tello asserts that the trial court erred by entering summary judgment because there is a genuine issue of material fact regarding the Bank‘s claim for damages. With respect to this issue, Tello primarily refers to his affidavit, in which he averred that, approximately three years after he executed the agreement, he called the Bank to inquire about his balance and was informed the agreement was a lease—not a purchase agreement. Within about a month, he returned the vehicle to Randall Reed Ford. Other than reciting the general summary judgment standards, Tello‘s argument regarding the effect of this averment consists solely of the following:
Had the trial court taken into account [Tello‘s] claim that he returned the vehicle, the damages would be significantly decreased. The affidavit filed by [Tello] clearly raises a genuine issue of material fact, which is an issue for a judge and jury to decide.
It is not clear whether Tello seeks to avoid liability on the lease based on his return of the vehicle or merely offset the amount of the Bank‘s damages, although his assertion suggests the latter. Nevertheless, Tello does not cite any authority, offer any argument, or point to any evidence generally showing why he might be entitled to avoid liability on the lease or offset the Bank‘s damages based on his
More particularly, Tello does not cite any authority, offer any argument, or point to any evidence showing why he might be entitled to avoid liability or offset the damages awarded the Bank entity, who is the current owner and lessor, based on his return of the vehicle to Randall Reed Ford, the former owner and lessor. Consequently, by failing to make any substantive analysis whatsoever, Tello has waived his contention that his return of the vehicle raised a fact issue sufficient to defeat the Bank‘s claim for damages or offset its damages. See
Moreover, in response to the motion for summary judgment, Tello did not raise his contention that his return of the vehicle should offset the Bank‘s damages or otherwise defeat its entitlement to summary judgment. The non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant‘s entitlement to summary judgment. McConnell, 858 S.W.2d at 343 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)); Dubose v. Worker‘s Medical, P.A., 117 S.W.3d 916, 920 (Tex.App.-Houston [14th Dist.] 2003, no pet.); see
Tello‘s suggestion on appeal that he may offset the Bank‘s damages or otherwise avoid liability on the lease based on his return of the vehicle is an issue by which he seeks to defeat the Bank‘s entitlement to summary judgment—not a challenge to the legal sufficiency of the Bank‘s summary judgment grounds. To prove its breach of contract claim, the Bank presented portions of the lease and its representative‘s affidavit purportedly showing Tello failed to make certain payments as agreed and setting forth the balance due. Tello does not contend that this evidence is insufficient to prove the amount of the damages awarded by the trial court.14 Rather, what little argument Tello does advance suggests he should offset the Bank‘s damages or otherwise avoid liability, notwithstanding the Bank‘s proof, because he returned the vehicle to Randall Reed Ford. Consequently, he was required to “expressly” present this issue to the trial court in response to the motion for summary judgment. See
To “expressly” present issues pursuant to Rule 166a(c), “[t]he written answer or response to the motion must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion.” Clear Creek, 589 S.W.2d at 678; see Engel v. Pettit, 713 S.W.2d 770, 771-72 (Tex.App.-Houston [14th Dist.] 1986, no pet.). The extent of Tello‘s summary judgment response with respect to the Bank‘s breach of contract claim was his general statement that a genuine issue of material fact existed on the claim and his reference to his attached evidence and his pleading. Tello made a bare averment in his attached affidavit that he returned the vehicle during a particular time period. However, he made no statement in his affidavit or response regarding the effect of this averment on the Bank‘s entitlement to summary judgment. Specifically, he did not mention that his return of the vehicle should offset the Bank‘s damages or otherwise defeat summary judgment, as he now suggests on appeal, much less mention why his return of the vehicle should offset the damages or otherwise defeat summary judgment. He did not even identify the element[s] of the Bank‘s breach of contract claim on which his return of the vehicle allegedly raised a fact issue or suggest
The requirement that the non-movant “fairly apprise” the trial court of the issues allegedly defeating summary judgment clearly contemplates that the trial court is not required to guess why a non-movant presents certain evidence or consider every possible reason the evidence might defeat summary judgment. In short, Tello‘s bare assertion in his affidavit that he returned the vehicle did not “fairly apprise” the trial court what, if anything, he wanted the trial court to do with that information. Cf. Engel, 713 S.W.2d at 771-72 (holding affidavit of attorney filed by non-movant in response to motion for summary judgment requesting recovery of movant‘s attorneys’ fees fairly apprised trial court of issue allegedly defeating the motion by stating the fees were “excessive and unreasonable.“).
In sum, trial court could not have erred by refusing to consider the effect, if any, of Tello‘s return of the vehicle on the Bank‘s entitlement to summary judgment when Tello never requested that it be considered. Accordingly, because Tello failed to “expressly” present his issue that his return of the vehicle should offset the Bank‘s damages or otherwise defeat its entitlement to summary judgment in response to the motion for summary judgment, we may not consider it as grounds for reversal.15 See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex.App.-San Antonio 1988, no writ) (finding non-movant waived argument on appeal that it was entitled to additional offset against movant‘s damages than offset allowed by trial court because non-movant did not raise issue of additional offset in its summary judgment response). We overrule his sixth issue.
Accordingly, the judgment of the trial court is affirmed.
FROST, J., dissenting.
KEM THOMPSON FROST, Justice, dissenting.
Appellees Bank One, N.A. (“Lienholder“) and Banc One Acceptance Corporation (“Assignee“) filed suit against appellant Pablo Tello to recover sums they claim were owing under the lease agreement; however, they attached only part of the lease agreement to their pleadings, and when they moved for summary judgment in the trial court, they made the same mistake. Consequently, our appellate record contains only part of the contract upon which the trial court‘s summary judgment is based. As explained in more detail below, this omission is significant because to
In his appellate brief, Tello asserts that the trial court erred in granting summary judgment as to the amount of contract damages for which he is liable. Construing Tello‘s brief liberally, as this court must, Tello argues that the traditional summary-judgment motion and attached evidence did not prove the lack of a genuine issue of fact and that the Bank One Entities are entitled to judgment as a matter of law for the damages awarded on their contract claim. This assertion is correct and should be sustained, but rather than reaching the merits of Tello‘s winning argument, the court erroneously concludes that Tello should lose based on a failure to preserve error.
According to the majority, Tello did not expressly present his sixth issue to the trial court, thereby waiving this issue. This analysis is based on the majority‘s conclusion that Tello‘s argument is not an attack on the sufficiency of the summary-judgment motion, a point that need not be raised in the trial court to be asserted on appeal. This conclusion is incorrect because, under a liberal construction, Tello‘s argument under his sixth issue challenges the sufficiency of the Bank One Entities’ motion and proof of their entitlement to summary judgment on their contract claim. Therefore, contrary to the majority‘s assertion, this argument did not have to be raised in the trial court. See M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (stating that, as to traditional motions for summary judgment, nonmovant has no duty to respond unless the movant conclusively establishes its claim or defense). There is no valid basis to find waiver for failure to preserve error in the trial court.
The court also holds that Tello waived this point through inadequate briefing. This analysis, though a somewhat subjective call, is contrary to the standards the Texas Supreme Court has articulated for disposing of parties’ appellate rights without reaching the merits of their appellate points. Under both the Texas Rules of Appellate Procedure and Texas Supreme Court precedent, this court must construe the briefing rules reasonably, yet liberally. See
Ideally, an appellant‘s brief should contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.
Under the applicable standard of review, we must take as true all evidence favorable to Tello and make all reasonable inferences in his favor. See Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Thus, in evaluating the propriety of summary judgment, we must consider the following facts and all reasonable inferences therefrom:
Tello, who speaks Spanish but does not read or speak English, went to Randall Reed Ford in May 1999, to buy a truck. He signed a contract, written in English, which he believed to be an agreement to purchase the vehicle, based on conversations he had with the Spanish-speaking salesman. However, the contract he signed was a lease agreement and he unknowingly had agreed to lease—not buy—the truck. The lease identified an assignee, Bank One Texas Leasing Corporation, to whom monthly payments were to be made. Tello made monthly payments on the truck for the next three years. Then one day he called to find out the outstanding balance and was told that he had not bought the truck but had leased it instead. While still current in his payments, in July 2002, Tello returned the truck to Randall Reed Ford, and continued to make payments on it through September 2002.
In his sixth issue, Tello asserts that the trial court erred in granting summary judgment because, under the applicable standard of review, Tello‘s affidavit raised a genuine issue of material fact regarding the amount of contract damages for which he is liable to the Bank One Entities. Tello points to his testimony that, after he learned the agreement he signed was a lease and not a sales contract, he returned the vehicle to Randall Reed Ford. Tello then asserts that (1) “[t]he motion for summary judgment and its supporting evidence must show there is no genuine issue of a material fact and that the movant is entitled to judgment as a matter of law“; and (2) “[h]ad the trial court taken into account appellant‘s claim that he returned the vehicle, the damages would be significantly decreased.” (citations omitted). Read liberally, Tello‘s brief contains the argument that, based on his return of the truck three years after signing the contract and three months before he stopped making payments, the trial court erred in granting summary judgment on the Bank One Entities’ contract claim because their motion and supporting evidence did not
The majority reaches the wrong conclusion—that the Bank One Entities are entitled to summary judgment on their claim for contract damages—partly because it is asking (and then answering) the wrong question. The inquiry is not whether Tello defeated the Bank One Entities’ traditional summary-judgment motion but whether the Bank One Entities, as movants, established their entitlement to the amount of damages awarded as a matter of law. The majority erroneously frames the issue as one of Tello failing to establish an offset when it is actually a failure by the Bank One Entities to carry their summary-judgment burden—or even to present a prima facie case to recover the amount of damages awarded under the lease. Instead of faulting the movants (the Bank One Entities) for failing to show from their own summary-judgment proof how they arrived at the amount awarded, the majority criticizes the non-movant (Tello) for failing to “cite any authority or evidence to inform us why he was allegedly entitled to offset the Bank‘s damages or otherwise defeat summary judgment.”1 The problem with the summary judgment is not what Tello failed to do in attacking it, but what the Bank One Entities failed to do in the first instance to prove their damages as a matter of law.
Recovery under a lease agreement is not automatic nor is there a universal measure of damages for breach. “The ultimate goal in measuring damages for a breach-of-contract claim is to provide just compensation for any loss or damage actually sustained as a result of the breach.” Mays v. Pierce, 203 S.W.3d 564, 577 (Tex.App.-Houston [14th Dist.] 2006, pet. filed); Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 328 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Typically, the measure of damages in a breach-of-contract case is the benefit-of-the-bargain measure, the purpose of which is to restore the injured party to the economic position it would have been in had the contract been performed. Mays, 203 S.W.3d at 577; SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 317 n. 6 (Tex. App.-Dallas 2004, no pet.). Because the movants failed to show what the contract provides as the measure of their recovery (or to show from the terms of the contract that the damage calculations would not be impacted by the missing portions of the contract), the Bank One Entities failed to establish a prima facie case for the damages awarded, let alone establish their entitlement to damages as a matter of law.
This is not a suit on a sworn account in which the plaintiff‘s sworn and unrefuted assertion of the amount allegedly owed itself will constitute prima facie evidence of damages; rather, this is a breach-of-contract case in which the movants are required to prove their entitlement to damages by establishing the amount of those damages under the terms of the contract. See e.g. Park v. Swartz, 110 Tex. 564, 222 S.W. 156 (1920) (holding that plaintiff “prima facie was entitled to as damages the amount which under the contract he would, presumably, have earned ...“) (emphasis added); Consol. Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894, 900 (Tex.App.-Tyler 2005, no pet.) (determin-
Because the part of the lease contained in the record does not address early termination, default, credits, or what happens if Tello returns the vehicle before expiration of the lease term, it provides no basis for determining the amounts owing, if any, under the lease. The Bank One Entities’ summary-judgment affidavit states the following:
- Tello missed at least six payments starting in October 2002.
- After all offsets, payments, and credits were allowed and applied, the outstanding balance on the lease including principal and interest was $25,693.46 as of January 14, 2003.
- Prejudgment interest has been accruing at the rate of six percent per annum, which equates to $4.22 per day.
However, there is no summary-judgment evidence addressing how credits are applied under the lease agreement or addressing the effect, if any, of Tello‘s return of the vehicle in July 2002, on Tello‘s liabil-
Though an affidavit containing a statement of balance due can in some instances suffice to satisfy a movant‘s summary-judgment burden, when, as in this case, the summary-judgment affidavit itself creates a fact question that cannot be resolved by turning to the summary-judgment proof, a material fact issue as to the measure of damages arises and precludes summary judgment. General Specialties, Inc. v. Charter Nat‘l Bank-Houston, 687 S.W.2d 772, 774 (Tex.App.-Houston [14th Dist.] 1985, no writ) (ambiguous lump sum figure in suit for collection on note, that is unexplained by other summary-judgment proof raises fact issue precluding summary judgment); FFP Mktg. Co., Inc. v. Long Lane Master Trust IV, 169 S.W.3d 402, 411-12 (Tex.App.-Fort Worth 2005, no pet.). Because the Bank One Entities did not prove up all of the terms of the lease on which they sought and obtained summary judgment, this court has no way of knowing the appropriate amount of damages for breach of the agreement or whether Tello‘s return of the vehicle affected the calculation of damages under the Bank One Entities’ contract claim. These ambiguities cannot be resolved by turning to their summary-judgment proof. Thus, on a merits review, the summary-judgment evidence does not support the amount of damages the Bank One Entities sought and the trial court awarded. Therefore, even if Tello had not responded at all, it would not have been proper to grant summary judgment on the Bank One Entities’ breach-of-contract claim.
Moreover, even if the Bank One Entities had not failed in the first instance, they still would not be entitled to summary judgment because Tello raised a fact issue as to the proper amount of damages based on his affidavit demonstrating he returned the leased vehicle and received no credit for it. Summary judgment is not proper because Tello raised a fact issue that had the Bank One Entities calculated the sums they claim are owing in accordance with the lease agreement, the amount of damages awarded would have been less. In Tello‘s words, “[h]ad the trial court taken into account appellant‘s claim that he returned the vehicle, the damages would be significantly decreased.” (citations omitted).3
For these reasons, the Bank One Entities did not prove their entitlement to summary judgment on their contract claim as a matter of law. See McCulley Fine Arts Gallery, Inc. v. “X” Partners, 860 S.W.2d 473, 478 (Tex.App.-El Paso 1993, no writ)