Glenn Rhoades D/B/A Vango Auto Group v. Spencer Prosser

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-118-CV
GLENN RHOADES D/B/A VANGO APPELLANT
AUTO GROUP
V.
SPENCER PROSSER APPELLEE
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appearing pro se, appellant Glenn Rhoades d/b/a Vango Auto Group appeals
a summary judgment granted in favor of appellee Spencer Prosser. In one point,
Rhoades contends that there is no evidence to support the judgment. Specifically,
Rhoades asserts that the deemed admissions that Prosser offered in support of his
motion are critical to support necessary elements of Prosser’s claims but that the
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 See Tex. R. App. P. 47.4.
deemed admissions are not verified and, therefore, not competent summary
judgment evidence. W e affirm.
II. Background and Procedural Facts
In May 2006, Prosser purchased a motor vehicle from Rhoades. At the time
of the sale, information that Rhoades provided Prosser stated that the vehicle’s
mileage was 77,173. After making extensive repairs, Prosser discovered that the
vehicle’s actual mileage exceeded 247,986 at the time of sale. Prosser sued
Rhoades for fraud, revocation of acceptance or, alternatively, rescission of the
purchase contract, declaratory relief, violation of the Motor Vehicle Information and
Cost Savings Act, 49 U.S.C.A. § 32710 (W est 2007), and violation of the Magnuson-
Moss W arranty Act, 15 U.S.C.A. §§ 2301–12 (W est 2009). Prosser also sought
actual and exemplary damages, attorney’s fees, interest, and costs.
During the course of discovery, Prosser served requests for admissions on
Rhoades. Rhoades failed to respond. Prosser then filed a motion for summary
judgment based in part upon Rhoades’s deemed admissions, a copy of which was
submitted as an attachment to an affidavit of Prosser’s attorney, Sharon K.
Campbell, and filed with the motion. Rhoades did not file a response. After notice
and a hearing, the trial court found that Prosser effectively revoked acceptance of
the purchase of the vehicle and granted final summary judgment awarding damages
and attorney’s fees on Prosser’s revocation of acceptance and Motor Vehicle
Information and Cost Savings Act causes of action. This appeal followed.
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III. Standard of Review
W e review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W .3d 844, 848 (Tex. 2009). W e consider the
evidence presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not. Id. W e indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.
v. Parker, 249 S.W .3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary
judgment on a cause of action if it conclusively proves all essential elements of the
claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W .2d 59, 60
(Tex. 1986).
IV. Deemed Admissions as Summary Judgment Proof
Rhoades complains on appeal that there is no evidence to support the
judgment because the deemed admissions are unverified and not competent
summary judgment evidence and there is no other evidence supporting certain facts
that Rhoades identifies as “necessary elements of [Prosser’s] case.”
Deemed admissions are competent summary judgment evidence.
Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W .3d 492, 502 (Tex. App.—San
Antonio 2004, pet. denied.). Unanswered requests for admissions are automatically
deemed admitted, unless the court on motion permits their withdrawal or
amendment. See Tex. R. Civ. P. 198.1–.3; Marshall v. Vise, 767 S.W .2d 699, 700
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(Tex. 1989). If a response to a request for admissions is not timely served, the
request is considered admitted without the necessity of a court order. Tex. R. Civ.
P. 198.2. An admission once admitted, deemed or otherwise, is a judicial admission.
Marshall, 767 S.W .2d at 700.
An affidavit is, by statute, “a statement in writing of a fact or facts signed by
the party making it, sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann.
§ 312.011(1) (Vernon 2005); see Ford Motor Co. v. Leggatt, 904 S.W .2d 643,
645–46 (Tex. 1995) (orig. proceeding). To constitute summary judgment proof, an
affidavit or papers attached to an affidavit must meet the following requirements set
forth in the rules of civil procedure:
Form of Affidavits; Further Testimony. Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may
permit affidavits to be supplemented or opposed by depositions or by
further affidavits. Defects in the form of affidavits or attachments will
not be grounds for reversal unless specifically pointed out by objection
by an opposing party with opportunity, but refusal, to amend.
Tex. R. Civ. P. 166a(f) (emphasis added); see Medford v. Medford, 68 S.W .3d 242,
246–47 (Tex. App.—Fort W orth 2002, no pet.).
Copies of documents that are attached to a properly prepared affidavit that
indicates the copies are “true and correct” are, therefore, sworn copies that
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constitute summary judgment proof. Republic Nat’l Leasing Corp. v. Schindler, 717
S.W .2d 606, 607 (Tex. 1986); Medford, 68 S.W .3d at 246–47. But unauthenticated
or unsworn documents or documents not supported by any affidavit are not entitled
to consideration as summary judgment evidence. Medford, 68 S.W .3d at 247; Llopa,
Inc. v. Nagel, 956 S.W .2d 82, 87 (Tex. App.—San Antonio 1997, pet. denied).
Rhoades argues that the copy of the requests for admissions submitted by
Prosser is not competent summary judgment evidence because it is not verified in
the motion or by affidavit. The copy was, however, attached to Campbell’s affidavit
and among the papers submitted to the trial court as summary judgment evidence
before the hearing. Additionally, Rhoades does not contend that Campbell’s affidavit
is defective or that the copy of the requests for admissions attached thereto would,
if verified and considered together with other record evidence, be legally insufficient
to support the judgment.
Campbell’s affidavit recites that Campbell personally appeared before a
notary, was “duly sworn,” and “deposed and said” what followed. And the affidavit
is certified to by a notary under his seal of office. Accordingly, Campbell’s affidavit
meets the statutory definition of an affidavit. See Tex. Gov’t Code Ann.
§ 312.011(1).
In the relevant portion of Campbell’s affidavit, which also proved up her
damages and attorney’s fees, she states that her services to Prosser
“include . . . preparing and sending Plaintiff’s Request for Disclosure, First Set of
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Interrogatories, Request for Admissions, [and] Request for Production of
Documents.“ [Emphasis added.] Campbell also states that “true and correct copies
of the Discovery Requests I prepared and sent to the Defendant via his attorney of
record” are attached to the affidavit. 2 The contention in Rhoades’s brief that
Campbell’s affidavit “does not identify or verify the alleged Request for Admissions”
is, thus, contradicted by the record evidence.
In her affidavit, Campbell swears that she “has personal knowledge” of the
matters stated therein relating to her preparation of the “Request for Admissions.”
See Leggatt, 904 S.W .2d at 646 (citing Humphreys v. Caldwell, 888 S.W .2d 469,
470 (Tex. 1994) (affidavit lacking attestation that statements made were
unequivocally based on personal knowledge was legally insufficient)). Campbell’s
affidavit is, therefore, competent summary judgment evidence. See Tex. R. Civ. P.
166a(f). Based on the record before us, we hold that the copy of the “Request for
Admissions” attached to Campbell’s affidavit is sworn and is proper summary
judgment evidence in support of Prosser’s motion. See id.; Republic Nat’l Leasing
Corp., 717 S.W .2d at 607.
2
 Campbell also attached a copy, which she averred to be true and correct,
of the green card indicating receipt of the discovery requests, including the requests
for admission.
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W ithout briefing the elements of Prosser’s causes of action, 3 Rhoades
contends on appeal that there is no evidence supporting the following facts that he
identifies as “necessary elements of [Prosser’s] case”: the identity of the seller of the
vehicle, knowledge of the vehicle’s mileage as reflected on the odometer statement,
evidence that Rhoades was responsible for the odometer representation, and the
vehicle’s mileage as listed on the title documents. But, contrary to Rhoades’
contention, the deemed admissions and other summary judgment evidence establish
each of these “elements.” First, deemed admission number 4 proves up a true and
correct copy of part of the title document by which Rhoades obtained title to the
vehicle when he purchased it on May 2, 2006. In the document, Glenn Rhoades or
his agent certified that the vehicle’s mileage was 247,986 on that date. Second,
deemed admission number 6 proves up a true and correct copy of an Application for
Texas Certificate of Title. The Application was also signed by Glenn Rhoades and
dated May 2, 2006, but in it Rhoades certified that the same vehicle’s mileage was
77,173 on that date, not 247,986. Third, Prosser’s affidavit proves up a true and
correct copy of the “Buyer’s Order” contract dated May 16, 2006. The Buyer’s Order
3
 The trial court awarded $20,878.74 in actual damages on Prosser’s claim
of revocation of acceptance and $11,557.48 in statutory penalties on Prosser’s claim
that Rhoades violated the Motor Vehicle Information and Cost Savings Act, 49
U.S.C.A. §§ 32701–11 (W est 2007).
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was signed by “GR” and stated that the vehicle’s mileage was 77,173 when Vango
Auto Group sold Prosser the vehicle on May 16, 2006. 4
Based on the foregoing summary judgment evidence, the record supports
each “element” that Rhoades contends is unsupported. Additionally, Prosser was
required to establish the following to support his claim of revocation of acceptance:
(1) initial acceptance without discovery of the non-conforming item if acceptance was
induced by the seller’s assurance (2) of a non-conforming item (3) when such
non-conformity substantially impairs the value to the buyer (4) with revocation
occurring within a reasonable time, and in any event, before a substantial change
in the condition of the goods occurs unless the change is caused by a defect of the
goods. Tex. Bus. & Com. Code Ann. § 2.608 (Vernon 2009); see also Toshiba
Mach. Co., Am. v. SPM Flow Control, Inc., 180 S.W .3d 761, 772 (Tex. App.—Fort
W orth 2005, pet. granted, judgm’t vacated w.r.m.) (op. on reh’g); Neily v. Aaron, 724
S.W .2d 908, 913–14 (Tex. App.—Fort W orth 1987, no writ). However, Rhoades
failed to identify or cite legal authority regarding the elements of Prosser’s revocation
claim. Accordingly, to the extent that Rhoades’ point of error may be construed as
challenging the sufficiency of the evidence in support of revocation, Rhoades failed
4
 Although the trial court awarded damages based on the finding that
Prosser “effectively revoked acceptance of the purchase” of the vehicle, Rhoades
fails to cite any authority regarding the elements of a revocation claim or identify
which of those elements, if any, were not supported by Prosser’s summary judgment
evidence.
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to adequately brief, and therefore waived, any alleged error by the trial court. 5 See
Tex. R. App. P. 38.1(e), (h); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W .2d 279, 284–85 (Tex. 1994) (discussing the “long-standing rule” that an
appellate point may be waived due to inadequate briefing). 6 Accordingly, we
overrule Rhoades’ point.
Having overruled Rhoades’ sole point, we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: May 20, 2010
5
 Rhoades likewise failed to identify or cite legal authority regarding
Prosser’s statutory violation. See 49 U.S.C.A. §§ 32701–11.
6
 Moreover, summary judgment evidence supports revocation. Prosser’s
affidavit and attached Buyer’s Order establish that he initially accepted the vehicle
after being induced by Rhoades’ representations that the vehicle was in good
condition and that the vehicle’s mileage was 77,173; Prosser’s affidavit, the deemed
admissions, and attached title documents establish that, when Prosser accepted the
vehicle, its actual milage was in excess of 247,986; and Prosser’s affidavit
establishes that the vehicle was non-conforming because the discrepancy in mileage
substantially impaired the vehicle’s value as shown by the need for more than
$5,778.74 in repairs and revocation occurred before a substantial change in the
vehicle’s condition and within a reasonable time based on Prosser’s filing suit only
after becoming aware, during the course of repairs, that the vehicle’s service records
showed its mileage to be substantially more than Rhoades had represented.
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