Mayphous Collins and Akilah Collins v. Lesha Strausz and Plano Collision Center, Inc. D/B/A AutoNation Collision Center Plano ( 2021 )


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  •                      In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-20-00317-CV
    ___________________________
    MAYPHOUS COLLINS AND AKILAH COLLINS, Appellants
    V.
    LESHA STRAUSZ AND PLANO COLLISION CENTER, INC. D/B/A
    AUTONATION COLLISION CENTER PLANO, Appellees
    On Appeal from the 352nd District Court
    Tarrant County, Texas
    Trial Court No. 352-305020-18
    Before Sudderth, C.J.; Kerr and Womack, JJ.
    Memorandum Opinion by Justice Womack
    MEMORANDUM OPINION
    I. INTRODUCTION
    Appellants Mayphous Collins and Akilah Collins sued Appellees Lesha Strausz
    and Plano Collision Center, Inc. d/b/a AutoNation Collision Center Plano for alleged
    damages to Appellants’ custom 2016 Tesla Model X P90D.                Both Strausz and
    AutoNation filed for no-evidence and traditional summary judgment on each of
    Appellants’ claims, and the trial court granted summary judgment in favor of Strausz
    and AutoNation.     In two issues, Appellants challenge the trial court’s grants of
    summary judgment. We will affirm.
    II. BACKGROUND
    In 2016, Appellants purchased the Tesla for $160,266.97. Two years after that
    purchase, Strausz rear-ended the Tesla while it was stopped at a red light.1 Mr. Collins
    spent weeks researching Tesla-certified and Tesla-approved repair shops, and he
    eventually chose AutoNation, bringing the vehicle in for repairs six weeks after the
    wreck. The Tesla remained at AutoNation for over five months, and when Mr.
    Collins arrived to pick up the vehicle, he noticed that it had allegedly sustained
    damages that had not been present when he had brought it to AutoNation.
    According to Mr. Collins, he noticed certain cosmetic damages to the vehicle, and
    more importantly, he contended that the vehicle had sustained water damage. Four
    1
    Mr. Collins was the Tesla’s driver at the time of the wreck.
    2
    months later, Mr. Collins had the Tesla towed to his home, and he has not driven it
    since that time. Around the time that the vehicle was towed to Mr. Collins’s home,
    AutoNation presented him with a final bill for the repairs totaling $7,777.88. The
    parties do not dispute that Strausz’s insurance carrier paid for that final bill.
    Appellants later filed suit against Strausz and AutoNation alleging the following
    claims: (1) breach of a bailment agreement; (2) negligent and fraudulent
    misrepresentation; (3) violation of the Deceptive Trade Practices and Consumer
    Protection Act (the DTPA); and (4) negligence and negligence per se.2               As to
    damages, Appellants alleged that the Tesla was “a total loss.” They stated that they
    were entitled to “the cost to replace the Vehicle with a vehicle of like[] kind[] and
    quality—which would be best determined by replacement with another 2016 Tesla
    Model X P90D, in the same condition as the Vehicle immediately prior to the [car
    wreck with Strausz].” They alleged that in total-loss situations, the depreciation of a
    vehicle would typically be deducted from the replacement cost, but they argued that a
    custom car, like their Tesla, “may actually appreciate in value.” They also stated that
    because the Telsa was a unique custom good, its value also included “service
    For simplicity, we will refer to Appellants’ negligence and negligence per se
    2
    claims collectively as Appellants’ “negligence claim.” See Johnson v. Enriquez,
    
    460 S.W.3d 669
    , 673 (Tex. App.—El Paso 2015, no pet.) (“Negligence per se is not a
    separate cause of action independent of a common-law negligence cause of action.”);
    Thomas v. Uzoka, 
    290 S.W.3d 437
    , 445 (Tex. App.—Houston [14th Dist.] 2009, pet.
    denied) (“Negligence per se is not a separate cause of action that exists independently
    of a common-law negligence cause of action.”).
    3
    value[,] . . . sentimental value[,] . . . and intrinsic value.” Appellants maintained that
    their total-loss damages should be valued “at a minimum” of $160,266.97—the
    amount that they paid when they had purchased the vehicle in 2016. Appellants also
    sought damages relating to their purported payment for a rental vehicle that was
    utilized while their Tesla was being repaired.
    Strausz filed a no-evidence and traditional motion for summary judgment on
    each of Appellants’ claims. The trial court granted summary judgment in Strausz’s
    favor on Appellants’ bailment, negligent and fraudulent misrepresentation, and DTPA
    claims, but the trial court denied summary judgment on Appellants’ negligence claim.
    AutoNation also filed a no-evidence and traditional motion for summary judgment on
    each of Appellants’ claims.        The trial court granted summary judgment in
    AutoNation’s favor on each of Appellants’ claims. Appellants moved for the trial
    court to reconsider that ruling, arguing that new testimony from their expert, Kevin
    Newsom, warranted setting aside the summary-judgment ruling.             The trial court
    denied Appellants’ motion to reconsider.3
    Strausz later filed a no-evidence and traditional motion for summary judgment
    on Appellants’ remaining negligence claim. The trial court granted Strausz summary
    judgment on that claim, and the trial court signed a final judgment. Appellants asked
    3
    In its order denying Appellants’ motion to reconsider, the trial court corrected
    a statement made in its prior order granting AutoNation summary judgment. The
    prior order had stated that it was final and that it disposed of all parties. In the new
    order, the trial court made clear that the negligence claim against Strausz remained.
    4
    the trial court to reconsider that ruling, citing testimony from Newsom that was not
    included in their response to Strausz’s motion for summary judgment on the
    negligence claim. The trial court denied Appellants’ motion to reconsider, and this
    appeal followed.
    III. DISCUSSION
    In their first issue, Appellants argue that the trial court erred by granting
    summary judgment in Strausz’s favor. In their second issue, Appellants argue that the
    trial court erred by granting summary judgment in AutoNation’s favor.
    A. Standard of Review
    When a party moves for both no-evidence and traditional summary judgment,
    we first review the trial court’s summary judgment under the no-evidence standard.
    Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    , 600 (Tex. 2004). Under that standard, after
    an adequate time for discovery, the party without the burden of proof may, without
    presenting evidence, move for summary judgment on the ground that no evidence
    supports an essential element of the nonmovant’s claim or defense. Tex. R. Civ. P.
    166a(i). The motion must specifically state the elements for which no evidence exists.
    Id.; Timpte Indus., Inc. v. Gish, 
    286 S.W.3d 306
    , 310 (Tex. 2009). The trial court must
    grant the motion unless the nonmovant produces summary-judgment evidence that
    raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; Hamilton
    v. Wilson, 
    249 S.W.3d 425
    , 426 (Tex. 2008).
    5
    When reviewing a no-evidence summary judgment, we examine the entire
    record in the light most favorable to the nonmovant, indulging every reasonable
    inference and resolving any doubts against the motion. Sudan v. Sudan, 
    199 S.W.3d 291
    , 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that
    would enable reasonable and fair-minded jurors to differ in their conclusions.
    Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 
    168 S.W.3d 802
    , 822 (Tex.
    2005)). We credit evidence favorable to the nonmovant if reasonable jurors could,
    and we disregard evidence contrary to the nonmovant unless reasonable jurors could
    not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 
    206 S.W.3d 572
    , 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of
    probative evidence that raises a genuine issue of material fact, then a no-evidence
    summary judgment is not proper. Smith v. O’Donnell, 
    288 S.W.3d 417
    , 424 (Tex. 2009);
    King Ranch, Inc. v. Chapman, 
    118 S.W.3d 742
    , 751 (Tex. 2003).
    B. The Summary Judgment in Favor of Strausz
    1. Claim for Breach of Bailment Agreement
    In their petition, Appellants alleged that Strausz had breached a bailment
    agreement. To prove a bailment—something necessary to sustain a claim for breach
    of a bailment agreement—a plaintiff must establish the following: (1) the delivery of
    personal property from one person to another for a specific purpose; (2) acceptance
    by the transferee of the delivery; (3) an agreement that the purpose will be fulfilled;
    and (4) an understanding that the property will be returned to the transferor. DeLaney
    6
    v. Assured Self Storage, 
    272 S.W.3d 837
    , 839 (Tex. App.—Dallas 2008, no pet.); Sears,
    Roebuck & Co. v. Wilson, 
    963 S.W.2d 166
    , 168–69 (Tex. App.—Fort Worth 1998, no
    pet.).
    In her no-evidence motion, Strausz argued that Appellants had no evidence to
    support any of the four elements required to prove the existence of a bailment. In
    their response, Appellants did not produce any evidence to support those challenged
    elements. Indeed, in the section of their response addressing the bailment claim—a
    section that was just over one page in length—Appellants merely responded to an
    argument made in Strausz’s traditional motion for summary judgment regarding
    whether she could be held liable for the actions of her insurance carrier; Appellants
    said nothing about the elements challenged in Strausz’s no-evidence motion.
    Appellants’ response did not point us to any evidence raising a genuine, material issue
    of fact as to the challenged elements, and having reviewed the evidence attached to
    their response, we have found none.4
    Examining the entire record in the light most favorable to Appellants and
    indulging every reasonable inference and resolving any doubts against the motion,
    Appellants attached to their response the following: (1) a “Texas Peace
    4
    Officer’s Crash Report” of the car wreck with Strausz; (2) excerpts from Strausz’s
    deposition relating to the day of the wreck; (3) excerpts from Mr. Collins’s deposition
    relating to issues with the Tesla following the wreck and following his taking of the
    vehicle to AutoNation for repairs; and (4) an affidavit from Mrs. Collins declaring that
    the statements contained in the factual background section of the response—none of
    which concerned the challenged bailment elements—were true and correct.
    7
    Appellants failed to produce summary-judgment evidence raising a genuine issue of
    material fact on the four elements required to prove the existence of a bailment. See
    Tex. R. Civ. P. 166a(i); DeLaney, 
    272 S.W.3d at 839
    ; Sears, Roebuck & Co., 963 S.W.2d
    at 168–69. Accordingly, we hold that the trial court did not err by granting summary
    judgment in favor of Strausz on Appellants’ claim for breach of a bailment agreement.
    We overrule this portion of Appellants’ first issue.
    2. Misrepresentation Claims
    In their petition, Appellants alleged that Strausz, by and through her agent,
    made negligent and fraudulent misrepresentations to them concerning the repair of
    the Tesla. To prevail on a negligent-misrepresentation claim, a plaintiff must establish
    the following: (1) the defendant, in the course of his business, profession, or
    employment, or in another transaction in which he had a pecuniary interest, supplied
    to the plaintiff false information for guidance in a business transaction; (2) the
    defendant failed to exercise reasonable care or competence in obtaining or
    communicating the information; (3) the plaintiff justifiably relied on the information;
    and (4) the defendant’s negligent misrepresentation proximately caused the plaintiff to
    suffer pecuniary loss. Maddox v. Vantage Energy, LLC, 
    361 S.W.3d 752
    , 760 n.9 (Tex.
    App.—Fort Worth 2012, pet. denied). To prevail on a fraudulent-misrepresentation
    claim, a plaintiff must establish the following: (1) a material representation was made;
    (2) the representation was false; (3) when the representation was made, the speaker
    knew it was false or made it recklessly without any knowledge of the truth and as a
    8
    positive assertion; (4) the speaker made the representation with the intent that the
    plaintiff act upon it; (5) the plaintiff acted in reliance on the representation; and (6) the
    plaintiff thereby suffered injury. Cent. Petroleum Ltd. v. Geosci. Res. Recovery, LLC,
    
    543 S.W.3d 901
    , 921 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing
    Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 
    341 S.W.3d 323
    , 337 (Tex.
    2011)).
    In her no-evidence motion, Strausz argued that Appellants had no evidence
    that she had made any representations to them and no evidence that they had relied
    on any representations. In their response, Appellants did not produce any evidence to
    support those challenged elements. Rather, Appellants pointed to statements made in
    their petition to support their misrepresentation claims. Pleadings, even if sworn to,
    do not constitute summary-judgment proof. Laidlaw Waste Sys. (Dall.), Inc. v. City of
    Wilmer, 
    904 S.W.2d 656
    , 660 (Tex. 1995).
    Examining the entire record in the light most favorable to Appellants and
    indulging every reasonable inference and resolving any doubts against the motion,
    Appellants failed to produce summary-judgment evidence raising a genuine issue of
    material fact that Strausz had made a representation to them and that they had relied
    on said representation. See Tex. R. Civ. P. 166a(i); Cent. Petroleum Ltd., 543 S.W.3d at
    921; Maddox, 361 S.W.3d at 760 n.9. Accordingly, we hold that the trial court did not
    err by granting summary judgment in favor of Strausz on Appellants’ negligent and
    9
    fraudulent misrepresentation claims. We overrule this portion of Appellants’ first
    issue.
    3. DTPA Claim
    In their petition, Appellants alleged that Strausz, by and through her agent,
    violated the DTPA. To prevail on a DTPA claim, a plaintiff must establish the
    following: (1) he is a consumer; (2) the defendant can be sued under the DTPA;
    (3) the defendant committed a wrongful act by engaging in a false, misleading, or
    deceptive act that is enumerated in a subdivision of Texas Business and Commerce
    Code Section 17.46(b), breached an express or implied warranty, or engaged in an
    unconscionable action or course of action; and (4) that the act constituted a producing
    cause of the plaintiff’s damages. Godfrey v. Sec. Serv. Fed. Credit Union, 
    356 S.W.3d 720
    ,
    725 (Tex. App.—El Paso 2011, no pet.); see 
    Tex. Bus. & Com. Code Ann. §§ 17.41
    –
    17.63.
    In her no-evidence motion, Strausz argued that Appellants had no evidence
    that they were consumers, that she could be properly sued under the DTPA, or that
    she had committed any wrongful act. In their response, Appellants did not produce
    any evidence to support those challenged elements. Once again, Appellants pointed
    to statements that they had made in their petition to support their claim. As noted
    above, pleadings do not constitute summary-judgment proof. Laidlaw, 904 S.W.2d at
    660.
    10
    Examining the entire record in the light most favorable to Appellants and
    indulging every reasonable inference and resolving any doubts against the motion,
    Appellants failed to produce summary-judgment evidence raising a genuine issue of
    material fact that they were consumers, that Strausz could be properly sued under the
    DTPA, and that Strausz had committed any wrongful act. See Tex. R. Civ. P. 166a(i);
    Godfrey, 356 S.W.3d at 725. Accordingly, we hold that the trial court did not err by
    granting summary judgment in favor of Strausz on Appellants’ DTPA claim. We
    overrule this portion of Appellants’ first issue.
    4. Negligence Claim
    In their petition, Appellants alleged that Strausz was negligent. To prevail on a
    negligence claim, a plaintiff must establish the following: (1) a legal duty owed by the
    defendant to the plaintiff; (2) a breach of that duty; and (3) damages proximately
    resulting from the breach. Wise Elec. Coop., Inc. v. Am. Hat Co., 
    476 S.W.3d 671
    , 680
    (Tex. App.—Fort Worth 2015, no pet.).
    In her no-evidence motion solely on Appellants’ negligence claim, Strausz
    argued that Appellants had no evidence to support their damages. In their response,
    Appellants argued that they were under no obligation to prove the amount of their
    damages. While it is true that uncertainty as to the amount of damages is not fatal to
    recovery, lack of evidence or uncertainty as to the fact of damages is. Avery Pharms.,
    Inc. v. Haynes & Boone, L.L.P., No. 2-07-317-CV, 
    2009 WL 279334
    , at *7 (Tex. App.—
    Fort Worth Feb. 5, 2009, no pet.) (mem. op.) (per curiam); Bingham v. Sw. Bell Yellow
    11
    Pages, Inc., No. 2-06-229-CV, 
    2008 WL 163551
    , at *6 (Tex. App.—Fort Worth Jan. 17,
    2008, no pet.) (mem. op. on reh’g). Damages must be ascertainable in some manner
    other than by mere speculation or conjecture and by reference to some fairly definite
    standard, established experience, or direct inference from known facts. Avery Pharms.,
    
    2009 WL 279334
    , at *7; Bingham, 
    2008 WL 163551
    , at *6. Remote damages—those
    damages that are purely conjectural, speculative, or contingent—are too uncertain to
    be ascertained and cannot be recovered. Avery Pharms., 
    2009 WL 279334
    , at *7;
    Bingham, 
    2008 WL 163551
    , at *6.
    Here, Appellants sought total-loss damages.5 When a total loss has occurred,
    the appropriate measure of damages is “‘the fair market value of the [vehicle]
    immediately before the injury at the place where the injury occurred,’ subject to a
    credit or offset, equal to the vehicle’s salvage value, if the owner retains the vehicle.”
    Balderas-Ramirez v. Felder, 
    537 S.W.3d 625
    , 628 (Tex. App.—Austin 2017, pet. denied)
    (quoting J & D Towing, LLC v. Am. Alternative Ins. Corp., 
    478 S.W.3d 649
    , 657 (Tex.
    2016)).
    5
    Both Strausz and AutoNation argued below and argue here that Appellants
    cannot recover total-loss damages as a matter of law because, according to them, only
    insurance companies have the right to declare a vehicle a total loss. See Morrison v.
    Campbell, 
    431 S.W.3d 611
    , 617 (Tex. App.—Fort Worth 2014, no pet.) (“An insurer
    may declare a vehicle to be a ‘total loss’ when it would not be absolutely impossible to
    repair it, but the damages are so extensive that repair would not be economically
    feasible.”). Appellants argued below and argue here that parties other than insurance
    companies may declare a vehicle a total loss. We need not address this issue because
    even if total-loss damages were appropriate, Appellants did not produce evidence to
    support those damages.
    12
    In their response to Strausz’s motion for summary judgment solely on their
    negligence claim, Appellants did not produce any evidence relating to the Tesla’s fair
    market value immediately before the wreck at the place where the wreck had
    occurred. See 
    id.
     Nor did they produce any evidence relating to a credit or offset
    equal to the vehicle’s salvage value. See 
    id.
     The closest Appellants came to providing
    such evidence was that they referenced their petition, which contained a statement
    that they had purchased the vehicle for $160,266.97 in 2016. But again, statements in
    pleadings are not proper summary-judgment evidence, and even if they were, the fact
    that Appellants had purchased the vehicle for $160,266.97 in 2016 is no evidence
    bearing on the vehicle’s fair market value immediately before the 2018 wreck.
    In their appellate brief, Appellants also refer us to deposition testimony
    provided by their expert, Newsom, in support of their damages.          The bulk of
    Newsom’s testimony was not attached to Appellants’ summary-judgment response;6
    rather, Newsom’s testimony was attached to their motions to reconsider the trial
    court’s summary-judgment rulings.      The scope of our review is limited to the
    summary-judgment record upon which the trial court’s ruling was based. Chappell v.
    Allen, 
    414 S.W.3d 316
    , 321 (Tex. App.—El Paso 2013, no pet.). Here, Newsom’s
    6
    A couple of pages of Newsom’s deposition were attached to Appellants’
    response to Strausz’s motion for summary judgment solely on their negligence claim.
    None of that evidence, however, concerned the fair market value of the Tesla
    immediately before the wreck at the place where the wreck had occurred, nor did it
    concern the Tesla’s salvage value.
    13
    testimony that was attached to Appellants’ motions to reconsider was not included in
    the summary-judgment record because it was not filed with their summary-judgment
    response, and there is no indication in the record that the trial court granted leave to
    consider it. See Tex. R. Civ. P. 166a(c) (“Except on leave of court, the adverse party,
    not later than seven days prior to the day of hearing may file and serve opposing
    affidavits or other written response.”); Basin Credit Consultants, Inc. v. Obregon, 
    2 S.W.3d 372
    , 374 (Tex. App.—San Antonio 1999, pet. denied) (“Late[-]filed evidence is a
    nullity unless the record affirmatively shows the trial court’s acceptance of the late
    filing.”).   Thus, we do not consider Newsom’s testimony that was attached to
    Appellants’ motions to reconsider. Even if we did, Newsom’s testimony did not
    concern the fair market value of the Tesla immediately before the wreck at the place
    where the wreck had occurred, nor did it concern the Tesla’s salvage value.
    In their petition, Appellants also sought damages relating to the Tesla’s “service
    value[,] . . . sentimental value[,] . . . and intrinsic value” and damages relating to their
    purported payment for a rental vehicle that was utilized while their Tesla was being
    repaired. In their summary-judgment response, Appellants did not point us to any
    evidence of the Tesla’s “service value[,] . . . sentimental value[,] . . . and intrinsic
    value,” and having reviewed the evidence attached to their response, we have found
    none. In their summary-judgment response, Appellants also did not point us to any
    evidence relating to their purported payment for a rental vehicle. In our review of the
    14
    summary-judgment evidence, however, we did find the following excerpt from Mr.
    Collins’s deposition concerning a rental car:
    Q.     So did you actually rent a car when your vehicle was at
    AutoNation?
    A.     The rental car was provided by [Strausz’s insurance carrier].
    ....
    Q.     Have you paid any rental expense because of this accident?
    A.     Yes, I have.
    Q.     And to whom did you pay it?
    A.     Enterprise Rental Car.
    Q.     How much did you pay?
    The summary-judgment record does not contain a response to that question, nor does
    it provide any other details from which we can ascertain Appellants’ purported
    damages stemming from their payment for a rental vehicle. We thus are left with less
    than a scintilla of probative evidence regarding those alleged damages.
    Examining the entire record in the light most favorable to Appellants and
    indulging every reasonable inference and resolving any doubts against the motion,
    Appellants failed to produce summary-judgment evidence raising a genuine issue of
    material fact to support their damages. See Tex. R. Civ. P. 166a(i); Balderas-Ramirez,
    537 S.W.3d at 628. Accordingly, we hold that the trial court did not err by granting
    summary judgment in favor of Strausz on Appellants’ negligence claim. We overrule
    15
    this last portion of Appellants’ first issue.         Having overruled all portions of
    Appellants’ first issue, we overrule that issue in its entirety.
    C. The Summary Judgment in Favor of AutoNation
    Appellants brought the same claims against AutoNation as they did against
    Strausz: (1) breach of a bailment agreement; (2) negligent and fraudulent
    misrepresentation; (3) violation of the DTPA; and (4) negligence. Damages are an
    element of each of those claims. See Cent. Petroleum Ltd., 543 S.W.3d at 921 (stating
    that damages are an element of a fraudulent-misrepresentation claim); Wise Elec.,
    476 S.W.3d at 680 (stating that damages are an element of a negligence claim);
    Maddox, 361 S.W.3d at 760 n.9 (stating that damages are an element of negligent-
    misrepresentation claim); Godfrey, 356 S.W.3d at 725 (stating that damages are an
    element of a DTPA claim); Carter v. Flowers, No. 02-10-00226-CV, 
    2011 WL 4502203
    ,
    at *3 (Tex. App.—Fort Worth Sept. 29, 2011, no pet.) (mem. op.) (stating that
    damages are an element of a claim for breach of a bailment agreement). In its motion
    for summary judgment, AutoNation argued that Appellants had no evidence to
    support their damages.
    Just as they failed to produce evidence to support their total-loss damages in
    response to Strausz’s motion for summary judgment, Appellants failed to produce
    evidence to support their total-loss damages when responding to AutoNation’s
    motion for summary judgment. Instead, they simply attached to their response the
    following: (1) a “Texas Peace Officer’s Crash Report” of the car wreck with Strausz;
    16
    (2) excerpts from Strausz’s deposition relating to the day of the wreck; (3) an excerpt
    and an exhibit from Mr. Collins’s deposition concerning issues with the Tesla and
    discussions with AutoNation’s personnel regarding the Tesla; and (4) an excerpt from
    the deposition of AutoNation’s corporate representative concerning the storage of
    vehicles by AutoNation. None of that evidence relates to the Tesla’s fair market value
    immediately before the wreck at the place where the wreck had occurred, nor does it
    relate to the Tesla’s salvage value. See Balderas-Ramirez, 537 S.W.3d at 628.
    Appellants contend that we should look at Newsom’s deposition testimony
    that was attached to their motions to reconsider in deciding whether summary
    judgment was properly granted to AutoNation. But again, our review is limited to the
    summary-judgment record upon which the trial court’s ruling was based. Chappell,
    414 S.W.3d at 321. And here, Newsom’s testimony that was attached to Appellants’
    motions to reconsider was not included in the summary-judgment record because it
    was not filed with their summary-judgment response, and there is no indication in the
    record that the trial court granted leave to consider it. See Tex. R. Civ. P. 166a(c);
    Basin Credit Consultants, 
    2 S.W.3d at 374
    .      Thus, we do not consider Newsom’s
    testimony that was attached to Appellants’ motions to reconsider. And as stated
    above, even if we did consider it, Newsom’s testimony did not concern the fair
    market value of the Tesla immediately before the wreck at the place where the wreck
    had occurred, nor did it concern the Tesla’s salvage value. Thus, Newsom’s testimony
    does not raise a genuine, material fact issue on Appellants’ total-loss damages.
    17
    As it relates to Appellants’ alleged damages concerning the Tesla’s “service
    value[,] . . . sentimental value[,] . . . and intrinsic value,” Appellants did not point us to
    any evidence of those values in their response to AutoNation’s motion, and having
    reviewed the evidence attached to Appellants’ response, we have found none. As it
    relates to Appellants’ alleged damages stemming from their payment for a rental
    vehicle, Appellants did not point us to any evidence concerning those damages. In
    our review of the summary-judgment evidence, however, we did find an email
    exchange between an AutoNation representative and Mr. Collins where the
    AutoNation representative stated that he needed Mr. Collins to sign and return an
    attachment “to get [Mr. Collins’s] rental bill moved to us” and that AutoNation would
    “only be covering $35/day for the rental.” The summary-judgment record does not
    contain the attachment that Mr. Collins was asked to sign and return, nor does it
    provide any other details from which we can ascertain Appellants’ purported damages
    stemming from their payment of a rental vehicle. We thus are left with less than a
    scintilla of probative evidence regarding those damages.
    Examining the entire record in the light most favorable to Appellants and
    indulging every reasonable inference and resolving any doubts against the motion,
    Appellants failed to produce summary-judgment evidence raising a genuine issue of
    material fact to support their damages. See Tex. R. Civ. P. 166a(i); Balderas-Ramirez,
    537 S.W.3d at 628. Accordingly, we hold that the trial court did not err by granting
    18
    summary judgment in favor of AutoNation on each of Appellants’ claims. We thus
    overrule Appellants’ second issue.
    IV. CONCLUSION
    Having overruled both of Appellants’ issues, we affirm the trial court’s
    summary judgments.
    /s/ Dana Womack
    Dana Womack
    Justice
    Delivered: September 9, 2021
    19
    

Document Info

Docket Number: 02-20-00317-CV

Filed Date: 9/9/2021

Precedential Status: Precedential

Modified Date: 9/13/2021