Folusho K. Peters v. Volkswagen Group of America, Inc. D/B/A Audi of America, Inc, & Sewell Corporation D/B/A Sewell Audi North Houston ( 2023 )

Opinion issued August 24, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00634-CV
———————————
FOLUSHO K. PETERS, Appellant
V.
VOLKSWAGEN GROUP OF AMERICA, INC. D/B/A AUDI OF AMERICA,
INC., & SEWELL CORPORATION D/B/A SEWELL AUDI NORTH
HOUSTON, Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Case No. 2018-91383
MEMORANDUM OPINION
In this personal injury case, appellant Folusho K. Peters appeals the trial
court’s order granting summary judgment in favor of appellees Volkswagen Group
of America, Inc. d/b/a Audi of America, Inc. (VWGoA) and Sewell Corporation
d/b/a Sewell Audi North Houston (Sewell) on Peters’s claims for strict product
liability (design, manufacturing, and marketing defects), negligence, breach of
express and implied warranties, and Deceptive Trade Practices Act violations. TEX.
BUS. & COM. CODE §§ 17.41–17.63 (DTPA). In four issues, Peters contends that
the trial court erred in (1) denying her motion to compel VWGoA to produce
relevant design, manufacturing, and testing documents; (2) declining to apply the
doctrine of res ipsa loquitur; (3) granting summary judgment in favor of VWGoA
and Sewell on her DTPA claims; and (4) and granting summary judmgent in favor
of VWGoA and Sewell on her breach of warranty claims. We affirm.
Background
Peters purchased a certified, pre-owned 2014 Audi A8 Quattro (the vehicle)
from Sewell in June 2017. Prior to Peters’s purchase, Auto Glass Installers (Auto
Glass) replaced the vehicle’s windshield in March 2017 at the request of its
previous owners. The replacement required the removal and reinstallation of the
vehicle’s rearview mirror.
On November 7, 2017, Peters was driving to work on I-45 North in Houston
when she swerved to avoid hitting the car in front of her, lost control of the
vehicle, and struck a concrete guardrail. Upon impact, the vehicle’s rearview
mirror detached from the windshield and struck her in the face, injuring her.
2
Peters sued VWGoA and Sewell, asserting claims for strict product liability
(design, manufacturing, and marketing defects), negligence, breach of express and
implied warranties, DTPA violations, and gross negligence. Peters further alleged
that the doctrine of res ipsa loquitur should be applied to her causes of action.
Peters sought actual and punitive damages and attorney’s fees. Peters filed her
second amended petition—the live pleading in this case—on August 31, 2020.
Sewell answered asserting a general denial and affirmative defenses.
VWGoA filed special exceptions, an “objection to blanket document designation,”
and its original answer asserting a general denial and affirmative defenses.
Appellees subsequently amended their answers. Appellees later filed a motion to
designate Auto Glass as a responsible third party, and the trial court granted the
motion.
In her third request for production of documents to VWGoA and Sewell,
Peters sought, among other things, documents related to the design, manufacture,
and marketing of the vehicle and its components, including the rearview mirror. In
its responses to some of Peters’s individual discovery requests, VWGoA stated that
it “has not and does not design, develop, manufacture, or test Audi automobiles or
rearview mirrors” and that “VWGoA is not in possession, custody or control” of
the requested materials. In the preliminary statement to its supplemental discovery
responses, VWGoA stated:
3
VWGoA is the sole, authorized United States importer and
marketer of Audi vehicles. VWGoA has not and does not design,
develop, manufacture or test Audi automobiles or the review mirrors
or front windshields installed in Audi automobiles. More specifically,
VWGoA did not design, develop, manufacture or test the model year
2014 Audi A8 Quattro bearing VIN WAURGAFD6EN011241
(“Subject Vehicle”) which is the subject of this lawsuit, or the rear
view mirror or front windshield contained in the Subject Vehicle.
Upon information and belief, the Subject Vehicle was manufactured
by Audi AG (“Audi”), Ingolstadt, Federal Republic of Germany.
Peters moved to compel VWGoA to produce documents related to the
design and manufacture of the vehicle and its components, including the rearview
mirror, urging that the relevant documents were within VWGoA’s possession,
custody, or control or that VWGoA had the right, authority, or ability to obtain the
documents from its non-party parent, Volkswagen Aktiengesellschaft (VWAG).
The trial court conducted a hearing on Peters’s motion to compel on June 9, 2021,
but it ultimately continued the matter to allow Peters the opportunity to supplement
her motion with additional documents explaining the relationship between
VWGoA, VWAG, and Audi AG. Peters supplemented her motion to compel on
August 19, 2021.
While the motion to compel was pending, appellees moved for traditional
summary judgment as to all of Peters’s claims on the grounds that the replacement
4
of the windshield by Auto Glass was the sole proximate cause of Peters’s injuries.1
Appellees also argued that Peters had presented no evidence to support her strict
product liability, negligence, or warranty claims. Appellees further argued that
Peters could not meet the elements necessary to recover under the DTPA and that
res ipsa loquitur did not apply in the present case.
The trial court held a hearing on the summary judgment motion on August
25, 2021 and ultimately granted the motion in its entirety on August 31, 2021.
Peters appeals.
Motion to Compel
In her first issue, Peters contends that the trial court erred in denying her
motion to compel VWGoA to produce certain design, marketing, and
manufacturing documents relating to the vehicle. In response, VWGoA argues that
the trial court never ruled on the motion and thus no error was preserved for our
review.
A. Lack of Ruling on Discovery Motion
In reviewing the record, we agree with VWGoA that the trial court never
ruled on the motion to compel. In fact, following arguments from both parties at
1
Appellees also moved for summary judgment on Peters’s seatbelt and airbag
claims and claims for gross negligence, but Peters later acknowledged that she was
no longer pursuing these claims.
5
the motion to compel hearing, the trial court specifically deferred ruling on the
motion to give Peters an opportunity to supplement:
I’m just going to ask that you supplement and I’ll just go ahead and –
and reset – reset this hearing until I give you time to supplement to see
if you can provide further information – if – further briefing and any
other additional evidence you’d like to provide based on what has
been presented today.
More specifically, the trial court urged Peters to
supplement [what’s in] your record with some of the things that
actually describe the relationship whether that’s through a corporate
rep or importer agreement or these other things that you talk about or
sort of lend the idea that, you know, that they do – obviously access is
not enough and, you know, I think opposing counsel doesn’t – doesn’t
necessarily agree with this relationship idea. But you can also
supplement the record on that as well, provide additional briefing[.]
Ultimately, the trial court concluded the motion to compel hearing with the
following:
Well, I’m basically just continuing this hearing until such time as
renoticed by hearing, oral hearing, or submission which I hope will
provide some more supplemental evidence because I do think it’s –
while I understand [Peters’s counsel’s] frustration, I do think he has
the burden of proof and while he’s tried to address it, it may not be
sufficient at least at this point and it may be helpful to see if he can
further supplement if he intends to pursue this seriously.
At the subsequent summary judgment hearing on August 25, 2021, the trial
court again deferred ruling on the motion to compel. Peters’s counsel confirmed
there would be no ruling in the following exchange:
[Counsel for Peters]: Your Honor, so, on the Motion to Compel,
should we just leave it be just to see what
6
you’re going to decide on [the summary
judgment motion] before we set a hearing to
continue the Motion to Compel?
THE COURT: Yes, sir.
Contrary to Peters’s arguments, nothing about the foregoing indicates that
the trial court ruled on the motion to compel. Instead, the trial court continued the
hearing to allow Peters time to supplement her motion with additional case law and
documents supporting her contention that VWGoA could be compelled to produce
documents maintained by VWAG. Further, Peters’s supplement to the motion,
filed on August 19, 2021, acknowledges that “[a]t the conclusion of the May 24,
20212 hearing on Plaintiff’s Motion to Compel production of key documents
relating to the rearview mirror that injured Plaintiff in a single car crash, the Court
asked Plaintiff to supplement her Motion with additional support.” Peters’s
supplement does not suggest that the trial court made any final ruling at the
hearing. It was only after the trial court ruled against Peters on summary judgment
that she took the position that the motion to compel had been denied.
B. Analysis
To preserve error on a discovery dispute, an appellant must obtain a ruling
from the trial court on the discovery matter. U. Lawrence Boze’ & Assocs., P.C. v.
Harris Cnty. Appraisal Dist., 368 S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.]
2
The record reflects that the hearing was held on June 9, 2021, not May 24, 2021.
7
2011, no pet.) (citing Goodchild v. Bombardier-Rotax GMBH Motorenfabrik, 979
S.W.2d 1, 6–7 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (“The
statement of facts from the hearing indicates appellants raised their complaints
[regarding a motion to compel interrogatories and a response to a motion for
production] at the hearing, but they did not obtain a ruling from the trial court on
the motion and they did not object to the trial court’s failure to make such a
ruling.”)). This comports with Texas Rule of Appellate Procedure 33.1(a), which
requires, to preserve error: (1) a complaint to the trial court by timely request,
objection, or motion, stating the grounds for ruling with sufficient specificity to
make the trial court aware of the complaint; and (2) a ruling on the request,
objection, or motion. TEX. R. APP. P. 33.1(a).
Here, Peters never secured a ruling on her motion to compel. In fact, her
counsel expressly confirmed with the trial court at the summary judgment hearing
that a decision on the motion to compel would be postponed until after the
summary judgment ruling. The record does not reflect that Peters ever attempted to
reset the motion to compel for hearing or otherwise bring it to the court’s attention
following the summary judgment hearing.
Several of our sister courts have held that failure to obtain a ruling on a
motion to compel discovery prior to a ruling on summary judgment waives any
error pertaining to the discovery issue. For example, in Gupta v. Midland Funding
8
LLC, No. 04-13-00227-CV, 2014 WL 3611517 (Tex. App.—San Antonio July 23,
2014, no pet.) (mem. op.), the appellant argued that the trial court erred in granting
summary judgment before ruling on her pending motion to compel further
discovery. See id. at *1. The San Antonio Court of Appeals determined that the
appellant failed to preserve her complaint for review because she did not attempt to
set her discovery motion for hearing or otherwise obtain a ruling from the trial
court before it ruled on summary judgment. Id. The court also noted that during the
summary judgment hearing, the appellant “did not make any reference to a pending
motion for continuance [of the summary judgment hearing], and the trial court did
not rule on either a motion to compel or a motion for continuance.” Id.
Likewise, in Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75 (Tex. App.—
Texarkana 2008, no pet.), the Texarkana Court of Appeals held that “the failure ‘to
obtain a pre-trial ruling on any discovery dispute existing before commencement of
summary judgment proceedings constitutes a waiver’ of any claim for relief.” Id. at
84 (quoting White v. Cole, 880 S.W.2d 292, 296 (Tex. App.—Beaumont 1994, writ
denied)). In Corona, the appellant filed a motion to compel discovery but did not
endeavor to request a hearing or obtain a ruling on the motion from the trial court
prior to the summary judgment hearing. Id. At the summary judgment hearing, the
appellant complained about the opposing party’s failure to respond to his
9
outstanding discovery requests, but again did not request a ruling on the discovery
motion or a continuance. Id.Here, considering the transcripts of the hearings on the motion to compel
and the summary judgment motion, and determining that the trial court never ruled
on the discovery motion, we hold that Peters has failed to preserve her complaint
regarding the discovery dispute for our review. See TEX. R. APP. P. 33.1(a); Gupta,
2014 WL 3611517, at *1; Corona, 245 S.W.3d at 84.
Further, we disagree with Peters that the trial court’s October 30, 2021 order
denying her “Motion for New Trial & Request for Reconsideration of the Court’s
Discovery Ruling” somehow preserved the issue for our review. While the motion
presupposed that the trial court had previously denied the motion to compel,
nothing about the October 30, 2021 order substantiates this assumption. Rather, the
four-line order summarily denied Peters’s motion without any findings of fact or
conclusions of law. The order is silent as to whether the trial court ever ruled on
the motion. See Melawer v. Total Aircraft Servs., Inc., No. 01-11-00606-CV, 2013
WL 485770, at *5 (Tex. App.—Houston [1st Dist.] Feb. 7, 2013, no pet.) (mem.
op.) (finding waiver and holding that “[a] postjudgment motion is not a timely
objection to the lack of a necessary finding of fact on which evidence is required”
where appellant failed to obtain ruling from trial court on statute of limitations
10
defense until denial of motion for new trial) (citing Holland v. Wal-Mart Stores,
Inc., 1 S.W.3d 91, 94 (Tex. 1999)).
We overrule Peters’s first issue.
Motion for Summary Judgment
Peters’s remaining issues on appeal concern the trial court’s grant of final
summary judgment. While not entirely clear from her briefing, we presume Peters
challenges the grant of summary judgment as to the following claims: (1)
manufacturing defect, (2) design defect3, (3) marketing defect, (4) negligence, (5)
violations of the DTPA, and (6) breach of express and implied warranties.4
3
Appellees contend that Peters has not challenged the grant of summary judgment
as to her design and manufacturing defect claims. Construing Peters’s briefing
liberally, as we must, portions of her brief discussing res ipsa loquitur do concern
its application in the product liability context. Thus, we interpret this as a
challenge to the trial court’s grant of summary judgment on those claims. See
Baumgart v. Archer, 581 S.W.3d 819, 827 n.5 (Tex. App.—Houston [1st Dist.]
2019, pet. denied) (citing TEX. R. APP. P. 38.9; TEX. R. APP. P. 38.1; Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (“[I]t is our practice to
construe liberally points of error in order to obtain a just, fair and equitable
adjudication of the rights of the litigants.”)).
4
Appellees argue that we can affirm summary judgment as to all claims without
reaching the merits of the motion because Peters has failed to challenge the
traditional summary judgment grounds: that Auto Glass was the sole proximate
cause of Peters’s injuries. We do not agree. While she does not specifically
identify this point in her enumerated issues, Peters’s brief does address the
argument elsewhere, contending that appellees’ conduct after Auto Glass’s
replacement of the windshield is a “new and independent, or superseding, cause.”
We therefore decline to find waiver and turn to the merits of the no-evidence
summary judgment grounds.
11
A. Standard of Review
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary
judgment without specifying the grounds for granting the motion, we must uphold
the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch
Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied). The motion must state the specific grounds relied upon for summary
judgment. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286 S.W.3d
306, 310 (Tex. 2009). When reviewing a summary judgment, we must (1) take as
true all evidence favorable to the nonmovant and (2) indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003).
A party seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard with a request
under the traditional summary judgment standard. Binur v. Jacobo, 135 S.W.3d
646, 650 (Tex. 2004). When a party has sought summary judgment on both
grounds and the order does not specify which motion was granted, we typically
first review the propriety of the summary judgment under the no-evidence
standard. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d
12598, 600 (Tex. 2004); Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61,
65 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). If the nonmovant fails to
meet its burden to adduce evidence in response to the no-evidence motion, there is
no need to address the challenge to the traditional motion because it necessarily
fails. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).5
To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence of one or more essential elements of a
claim on which the adverse party would have the burden of proof at trial. TEX. R.
CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). To defeat
a no-evidence motion, the nonmovant must produce at least a scintilla of evidence
raising a genuine issue of material fact as to the challenged elements. Lightning Oil
Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). “More than
a scintilla of evidence exists if the evidence ‘rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.’” Essex Crane
Rental Corp. v. Carter, 371 S.W.3d 366, 376 (Tex. App.—Houston [1st Dist.]
2012, pet. denied) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997)).
5
As discussed below, because we hold that Peters failed to meet her burden with
respect to the no-evidence grounds for summary judgment, we do not reach the
traditional summary judgment.
13
B. Marketing Defect Claims6
Regarding her marketing defect claims, Peters alleges that although the
vehicle’s repair manual requires replacement of a clip in the rearview mirror
following any windshield replacement, Auto Glass did not replace the clip on her
mirror when it replaced the windshield. She further contends that “failure to warn
of the need to replace the clip is a marketing defect.” Appellees moved for no-
evidence summary judgment as to the marketing defect claims.
1. Applicable Law
This court has previously identified five factors necessary to establish a
marketing defect claim: (1) a risk of harm, either inherent to the product or arising
from its intended or foreseeable use; (2) at the time the product is marketed, the
product supplier knows or reasonably should foresee the risk of harm; (3) the
product has a marketing defect; (4) the failure to warn or provide instructions
renders the product unreasonably dangerous to the product’s ultimate user or
consumer; and (5) the failure to warn or instruct causes the user’s injury. Ranger
Conveying & Supply Co. v. Davis, 254 S.W.3d 471, 480 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied).
6
Peters does not specifically challenge the trial court’s grant of summary judgment
as to her marketing defect claims in her enumerated issues on appeal; however,
she does address this argument in the body of her brief. See Weeks Marine, Inc. v.
Garza, 371 S.W.3d 157, 162 (Tex. 2012) (“An appellant can preserve error in the
body of their appellate brief, even if it is not separately listed in the notice of
appeal or presented as an issue in the brief.”) (internal quotations and citations
omitted).
14
2. Analysis
Peters’s marketing defect claim is predicated on the assumption that a failure
to replace the clip caused the mirror to detach during the accident. But Peters has
presented no evidence, from an expert or otherwise, to support this assumption.
When asked why Audi recommends replacing the clip, VWGoA’s corporate
representative testified: “I don’t know why they provide those instructions. They
don’t go into detail. That would be information that would need to . . . be asked
from Audi AG.”7 Further, Peters’s only expert, Dr. Mariusz Ziejewski, testified
that he was not “involved in [the] analysis [of the clip] at all” because design was
“not [his] issue.”
Additionally, Peters has not established that any warnings or instructions
were inadequate. She has not presented any expert testimony or opinions as to the
adequacy of the vehicle’s warnings. Peters acknowledges that the repair manual
advises to “[a]lways replace clips -2- and -5- for the interior rearview mirror if
removed.” It is unclear what other instructions or warnings Peters alleges should
have been provided, or where she would have appellees place additional warnings.
She has likewise not demonstrated that if additional instructions or warnings were
present, she would not have been injured. See Goodyear Tire & Rubber Co. v.
Rios, 143 S.W.3d 107, 116–18 (Tex. App.—San Antonio 2004, pet. denied)
7
Peters did not name Audi AG in her lawsuit.
15
(concluding expert testimony was required to establish marketing defect where
plaintiff did not offer proposed warning and failed to otherwise demonstrate that
absence of warning or instruction on tire’s sidewall rendered it unreasonably
dangerous to ultimate user or consumer; jury could not determine without expert
testimony which warnings, among many, should be printed on tire); see also
Ramsey v. Caterpillar Inc., No. 12-16-00155-CV, 2017 WL 1426793, at *3 (Tex.
App.—Tyler Apr. 19, 2017, pet. denied) (mem. op.) (affirming grant of no-
evidence summary judgment on marketing defect claim where there was no
evidence of inadequate warning or that alleged failure to warn caused injuries; “In
situations where instructions or warnings pertinent to the proper operation,
mounting, maintenance, and repair of the product may be necessary, expert
testimony is required.”).
We therefore affirm the trial court’s grant of summary judgment as to
Peters’s marketing defect claims.
C. DTPA Claims
In her third issue, Peters challenges the trial court’s grant of summary
judgment as to her DTPA claims. Appellees moved for no-evidence summary
judgment as to these claims, arguing that Peters could not meet either of the two
exceptions to the general rule that the DTPA does not apply to claims arising from
alleged bodily injury or mental anguish.
16
1. Applicable Law
“The DTPA grants consumers a cause of action for false, misleading, or
deceptive acts or practices.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649
(Tex. 1996). To prevail on her DTPA claims, Peters must prove that: (1) she is a
consumer; (2) appellees can be sued under the DTPA; (3) appellees committed
some wrongful act under the DTPA; and (4) appellees’ conduct was a producing
cause of her damages. See Hudspeth v. Enter. Life Ins. Co., 358 S.W.3d 373, 388
(Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing TEX. BUS. & COM. CODE §
17.50(a); Amstadt, 919 S.W.2d at 649).
As appellees correctly point out, section 17.49(e) of the DTPA expressly
provides that “[e]xcept as specifically provided by Subsections (b) and (h), Section
17.50, nothing in this subchapter shall apply to a cause of action for bodily injury
or death or for the infliction of mental anguish.” TEX. BUS. & COM. CODE §
17.49(e). On appeal, Peters argues that the exception found in section 17.50(b)
applies, which permits recovery of mental anguish damages if the trier of fact
determines that the defendant’s conduct was committed “knowingly” or
“intentionally.” Id. § 17.50(b)(1).8
8
Peters does not argue on appeal that the section 17.50(h) exception applies. See
TEX. BUS. & COM. CODE § 17.50(h).
17
2. Analysis
Under the DTPA, “knowingly” means “actual awareness, at the time of the
act or practice complained of, of the falsity, deception, or unfairness of the act or
practice giving rise to the consumer’s claim . . . but actual awareness may be
inferred where objective manifestations indicate that a person acted with actual
awareness.” Id. § 17.45(9). However, “[a]ctual awareness does not mean merely
that a person knows what he is doing.” Daugherty v. Jacobs, 187 S.W.3d 607, 618
(Tex. App.—Houston [14th Dist.] 2006, no pet.). Instead, “it means that a person
knows what he is doing is false, deceptive, or unfair.” Id. Stated differently, “a
person must think to himself at some point, ‘Yes, I know this is false, deceptive, or
unfair to him, but I’m going to do it anyway.’” St. Paul Surplus Lines Ins. Co., Inc.
v. Dal-Worth Tank Co., Inc., 974 S.W.2d 51, 54 (Tex. 1998). Actual awareness
goes beyond conscious indifference to the welfare or rights of another. Daugherty,
187 S.W.3d at 618.
Appellees contend that Peters presented no evidence that they had actual
awareness of any problems with the vehicle or its components at the time of its sale
to Peters. In support of their argument, appellees direct us to Prudential Insurance
Co. of America v. Jefferson Associates, Ltd., 896 S.W.2d 156 (Tex. 1995). In that
case, the plaintiff sued the seller of a commercial building pursuant to the DTPA
after learning that the building contained asbestos. See id. at 159. Though the
18
plaintiff agreed to purchase the building “as is,” the jury found for the plaintiff, and
the court of appeals affirmed. Id. at 160. In reversing the court of appeals and
rendering judgment in favor of the seller, the Texas Supreme Court held the
following:
While there may be evidence that [the seller] should have suspected
the presence of asbestos in the Jefferson Building, there is no evidence
that [the seller] actually knew of the asbestos. A seller has no duty to
disclose facts he does not know. Nor is a seller liable for failing to
disclose what he only should have known. Even under the DTPA, a
seller is not liable for failing to disclose information he did not
actually know.
Id. at 162 (internal citations omitted).
Although Peters claims that “[a]ppellees marketed and sold the Audi A8 as a
CPO car that had been inspected and was supposed to be like new and safe,” she
has failed to demonstrate that appellees had actual awareness that the vehicle was
not, in fact, “like new and safe.” More specifically, Peters has presented no
evidence that appellees knew that the windshield had been replaced, and
nevertheless, endeavored to deceive her.9 See St. Paul Surplus Lines Ins. Co., 974
9
In her response to the summary judgment motion, Peters included a photograph of
the windshield sticker. On appeal, Peters argues that the sticker “show[s] it is not a
factory-installed windshield.” She also contends that from this, “Sewell was aware
or reasonably should have been aware that the windshield on the CPO Audi A8
had been replaced by a non-Audi dealer.” However, Peters did not produce any
evidence or testimony explaining the markings on the sticker or how one could
conclude from the sticker alone that the windshield was not factory installed or
installed by an authorized dealer.
19
S.W.2d at 53–54. A statement is not fraudulent unless the speaker knew it was
false when made or the speaker made it recklessly without knowledge of its truth.
Prudential Ins. Co., 896 S.W.2d at 163.
Because Peters failed to present evidence that appellees acted “knowingly”
or “intentionally” as required by section 17.50(b) of the DTPA, she cannot
overcome the DTPA’s general exclusion of claims arising from bodily injury or
mental anguish.
We overrule Peters’s third issue.
D. Breach of Warranty Claims
In her fourth issue, Peters challenges the trial court’s grant of summary
judgment as to her breach of implied and express warranty claims. Appellees
sought no-evidence summary judgment on these claims, arguing that Peters did not
provide the requisite pre-suit notice. See TEX. BUS. & COM. CODE § 2.607(c)(1).
On appeal, Peters contends that section 2.607 of the Texas Uniform Commercial
Code (UCC) does not require pre-suit notice in this case.
1. Applicable Law
To maintain an action for a breach of warranty, a buyer must notify the seller
that a breach occurred within a reasonable time after he discovers or should have
Further, Peters did not present any testimony interpreting the “Certified pre-owned
Program Manual,” explaining how Peters’s windshield failed to meet the
requirements of the CPO certification process.
20
discovered any breach. See id. (“Where a tender has been accepted . . . the buyer
must within a reasonable time after he discovers or should have discovered any
breach notify the seller of breach or be barred from any remedy[.]”). The burden of
alleging and proving proper notice is on the buyer. U.S. Tire–Tech, Inc. v. Boeran,
B.V., 110 S.W.3d 194, 200 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)
(holding that notice requirement is better described as condition precedent for
buyer’s cause of action than affirmative defense). Failure to notify the seller of the
breach, thereby allowing the seller an opportunity to cure, bars recovery for breach
of warranty. Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 189 (Tex. App.—Dallas
1996, no writ). While the issue of notice is typically a question of fact, it becomes
a question of law if ordinary minds could not differ about the proper conclusion to
be drawn from the evidence. Id. at 190; Carroll Instrument Co. v. B.W.B. Controls,
Inc., 677 S.W.2d 654, 657 (Tex. App.—Houston [1st Dist.] 1984, no writ).
2. Analysis
Peters first contends that the section 2.607 notice requirement is inapplicable
because her vehicle was a total loss; thus, appellees could not “cure” any breach.
Peters does not cite to, nor have we located, any legal authority to support this
contention. Further, section 2.607 does not contain any such exception.
We note that the Amarillo Court of Appeals rejected a similar argument in
Barocio v. General Electric Co., No. 07-12-00311-CV, 2014 WL 31255 (Tex.
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App.—Amarillo Jan. 3, 2014, no pet.) (mem. op.). That case concerned an
electrical fire, potentially caused by the blower motor in the appellants’ heating
and air conditioning system. See id. at *1. Though the fire occurred in late 2008,
and a report identified General Electric’s (GE) motor as the cause of the fire in
January 2009, the appellants did not provide notice of the alleged breach to GE
until they amended their suit to add GE as a party in October 2011. Id. GE moved
for summary judgment, arguing the appellants failed to provide the requisite notice
under section 2.607(c)(1), and the trial court granted the motion. Id. at *2. In
affirming the trial court’s order, the court of appeals held:
Under these circumstances, “[i]t would be untenable to allow a buyer,
such as [the appellants], to recover damages for breach of warranty
from a remote seller or manufacturer who was never even made aware
that the product in question was defective and who, consequently,
never had an opportunity to remedy the defect to the buyer’s
satisfaction before litigation was commenced or even to inspect the
product to ascertain if indeed a defect existed.”
Id. at *5 (emphasis added) (quoting Wilcox v. Hillcrest Mem’l Park of Dall., 696
S.W.2d 423, 424–25 (Tex. App.—Dallas 1985), writ ref’d n.r.e., 701 S.W.2d 842(Tex. 1996) (per curiam)). In so holding, the court explicitly overruled the
appellants’ argument that notice under section 2.607 should be excused “because,
after the fire occurred, notice of the alleged defect would be a useless act.” Id. at *5
n.3. The court noted that “[t]he statute contains no such exception and the
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[plaintiffs] cite no relevant legal authority for this proposition.” Id. For the same
reasons, we reject Peters’s futility argument. See id.Peters further argues that “the UCC’s notice provision does not apply to
personal injury claims.” Peters relies on Connick v. Suzuki Motor Co., 675 N.E.2d
584 (Ill. 1996)10, which she claims was “cited generally with approval” by this
court in U.S. Tire-Tech, 110 S.W.3d at 202. Our decision in U.S. Tire-Tech did not
cite Connick for the purported rule asserted by Peters; instead, we cited Connick in
holding that notice to the marketer of Tire-Tech’s product did not “satisfy [the
plaintiff’s] notice requirement toward Tire-Tech.” Id. Further, U.S. Tire-Tech did
not involve personal injury claims.
Lastly, comment 5 to section 2.607 contemplates a notice requirement in
personal injury cases:
Under this Article various beneficiaries are given rights for injuries
sustained by them because of the seller’s breach of warranty. Such a
beneficiary does not fall within the reason of the present section in
regard to discovery of defects and the giving of notice within a
reasonable time after acceptance, since he has nothing to do with
acceptance. However, the reason of this section does extend to
requiring the beneficiary to notify the seller that an injury has
occurred. What is said above, with regard to the extended time for
reasonable notification from the lay consumer after the injury is also
applicable here; but even a beneficiary can be properly held to the
10
Peters does not cite any Texas case law to support her argument. We are not bound
to follow decisions from other jurisdictions. See Penrod Drilling Corp. v.
Williams, 868 S.W.2d 294, 296 (Tex. 1993) (holding Texas courts are only
obligated to follow decisions by higher Texas courts and United States Supreme
Court).
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use of good faith in notifying, once he has had time to become aware
of the legal situation.
TEX. BUS. & COM. CODE § 2.607 cmt. 5 (emphasis added); see also Ibarra v. Nat’l
Const. Rentals, Inc., 199 S.W.3d 32, 37–38 (Tex. App.—San Antonio 2006, no
pet.) (discussing comment 5). Following this logic, if a beneficiary must provide
notice to a seller of any personal injury resulting from the seller’s breach of
warranty, then a buyer must as well. See TEX. BUS. & COM. CODE § 2.607 cmt. 5;
Ibarra, 199 S.W.3d at 38.
We overrule Peters’s fourth issue.
E. Res Ipsa Loquitur
As explained earlier, Peters did not receive a ruling on her motion to compel
discovery from VWGoA and therefore did not preserve any error regarding her
motion to compel. Peters acknowledges that she does not have the necessary
manufacturing or design documents to support her product liability or negligence
claims. Further, Peters’s only expert—Ziejewski, an accident reconstructionist and
biomechanics expert—specifically testified that he was “not designated as a design
expert” and that design was “not [his] issue.” He further testified that he “[is] not a
design expert [in this case].”
Thus, Peters relies on the doctrine of res ipsa loquitur to save her negligence
and strict product liability design and manufacturing defect claims from appellees’
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no-evidence motion for summary judgment.11 Specifically, Peters contends that
“there is no reasonable explanation for the rear-view mirror malfunction and
dislodging, which caused [her] injuries, other than the negligence or other
misconduct of Defendants.”
1. Applicable Law
Res ipsa loquitur is a rule of evidence whereby negligence of the alleged
wrongdoer may be inferred from the mere fact that the accident happened,
provided that (1) the character of the injury is such that it would not occur without
negligence; and (2) the instrumentality which caused the injury is shown to have
been under the management and control of the defendant. Sanders v. Naes Central,
Inc., 498 S.W.3d 256, 258 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing
Jones v. Tarrant Cnty. Util. Co., 638 S.W.2d 862, 865 (Tex. 1982)). The effect of
successfully invoking the doctrine of res ipsa loquitur is that a plaintiff can survive
no-evidence procedural challenges: “[H]e has produced some evidence of the
defendant’s negligence.” Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.
1974). Unless the plaintiff can demonstrate both factors, it cannot reasonably be
11
Peters’s negligence claims are intertwined with her strict liability claims. Peters’s
Second Amended Petition alleges that “Defendants were negligent in designing,
manufacturing, installing, inspecting, testing, and servicing the Audi A8, and its
component parts.”
At the summary judgment hearing, Peters clarified that her design and
manufacturing defect claims applied only to VWGoA, not Sewell.
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inferred from the circumstances of the accident that the defendant was negligent.
Sanders, 498 S.W. 3d at 258.
2. Analysis
Even assuming without deciding that Peters has established the first factor,
we nevertheless conclude that Peters has failed to produce any evidence
demonstrating the second factor: that the injury-causing instrumentality (here, the
rearview mirror) was under the “management and control” of appellees.
The Texas Supreme Court has explained that the “control” requirement
is not a rigid rule that the instrumentality must have always been in
the defendant’s possession or even that it must have been in the
defendant’s control at the time of the injury. It is sufficient if the
defendant was in control at the time that the negligence inferable from
the first factor probably occurred, so that the reasonable probabilities
point to the defendant and support a reasonable inference that he was
the negligent party.
Bell, 517 S.W.2d at 251 (emphasis added).
Here, however, we cannot reasonably infer that either of the appellees was
the negligent party because (1) the accident occurred after the vehicle left
appellees’ control, and (2) Auto Glass was in control at the time the alleged
negligence occurred. See id. Peters herself summarized her theory of the case in
her response to appellees’ motion to designate Auto Glass as a responsible third
party:
This is a product liability case in which Plaintiff Folusho Peters
suffered severe physical injuries, including permanent eye injuries and
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facial injuries resulting in 5 surgeries to repair the damage to her eye
and facial injuries, when the rear-view mirror on her 2014 Audi A-8L
came off its base on the windshield in a single-car crash and struck
her in the face with great force. . . . The car’s windshield, which had
been replaced by Auto Glass some months before Plaintiff purchased
the A8 as a “Certified Preowned vehicle” (“CPO”) from Defendant
Sewell in July 2017, did not suffer any cracks or other visible damage.
Thus, it is undisputed that the rear-view mirror was the cause of
Plaintiff’s injuries.
(emphasis in original). As outlined by Peters in the foregoing, Auto Glass—not
appellees—controlled the vehicle at the time the alleged negligence occurred—the
time of the windshield replacement. Auto Glass replaced the windshield “months
before” Peters purchased the vehicle from Sewell, and long after the vehicle left
the control of VWGoA in 2014. Thus, appellees were not “in control at the time
that the negligence inferable from the first factor [of the res ipsa loquitur test]
occurred,” and res ipsa loquitur is inapplicable to Peters’s claims against appellees.
See Bell, 217 S.W.2d at 251; Disc. Tire Co. of Tex., Inc. v. Cabanas, 553 S.W.3d
566, 570, 571–72 (Tex. App.—San Antonio 2018, pet. denied) (holding that “a
lapse in the defendant’s control may make the [res ipsa] doctrine inapt”; court
concluded res ipsa loquitur did not apply where tire detached two days after
defendant rotated vehicle’s tires).
Peters has failed to produce any evidence of appellees’ negligence or a
design or manufacturing defect, and she has not shown a res ipsa loquitur inference
27
applies. We therefore overrule Peters’s second issue and affirm the trial court’s
grant of no-evidence summary judgment as to those claims.
Conclusion
Having found no error in the trial court’s grant of summary judgment in
favor of appellees, we affirm the order of the trial court.
Amparo Guerra
Justice
Panel consists of Justices Kelly, Goodman, and Guerra.
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