Coastal Motorcars, Ltd. D/B/A BMW of Corpus Christi v. Mary Lou Brown and Mary Alice Garcia

ACCEPTED
13-14-00560-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/16/2015 6:41:05 PM
DORIAN RAMIREZ
CLERK
NO. 13-14-00560-CV
IN THE COURT OF APPEALS OF TEXASFILED IN
13th COURT OF APPEALS
THIRTEENTH APPELLATE DISTRICT
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI AND EDINBURG
3/16/2015 6:41:05 PM
***** DORIAN E. RAMIREZ
Clerk
COASTAL MOTORCARS LTD.
(formerly d/b/a BMW OF CORPUS CHRISTI),
Appellant
v.
MARY LOU BROWN and MARY ALICE GARCIA,
Appellees
*****
Brief of Appellant
*****
th
On appeal from the 214 District Court, Nueces County
Hon. Jose Longoria, Judge
Cause No. 2013-DCV-0520-F
*****
Brian Miller
State Bar No. 24002607
ROYSTON RAYZOR
VICKERY & WILLIAMS L.L.P.
Frost Bank Plaza, Suite 1300
802 N. Carancahua St.
Corpus Christi, TX 78401
Tel. No. (361) 884-8808
Fax No. (361) 884-7261
E-mail: brian.miller@roystonlaw.com
Counsel for Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule of Appellate Procedure 38.1(a), appellant Coastal
Motorcars Ltd. provides this list of parties and counsel:
APPELLANT: Coastal Motorcars Ltd. (formerly d/b/a
BMW of Corpus Christi)
COUNSEL FOR APPELLANT: Brian Miller
ROYSTON RAYZOR
VICKERY & WILLIAMS L.L.P.
Frost Bank Plaza, Suite 1300
802 N. Carancahua St.
Corpus Christi, TX 78401
Tel. No. (361) 884-8808
Fax No. (361) 884-7261
Patrick L. Beam
(former trial court counsel)
LAW OFFICE OF PATRICK L. BEAM
924 Leopard St.
Corpus Christi, TX 78401
Tel. No. (361) 698-3637
Fax No. (210) 800-9957
Eric Stewart
(former trial court counsel)
HUSEMAN & STEWART
615 N. Upper Broadway St.
Suite 2000
Corpus Christi, TX 78478
Tel. No. (361) 883-3563
Fax No. (361) 883-0210
APPELLEES: Mary Alice Garcia
Mary Lou Brown
i
COUNSEL FOR APPELLEES: Denny Barre
ANDERSON LEHRMAN
BARRE & MARAIST L.L.P.
Gaslight Square, Suite 1
1001 Third St.
Corpus Christi, TX 78404
Tel. No. (361) 884-4981
Fax. No. (361) 883-4079
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................. i
INDEX OF AUTHORITIES ......................................................................... vi
STATEMENT OF THE CASE .................................................................... xii
STATEMENT REGARDING ORAL ARGUMENT ................................. xiii
ISSUES PRESENTED ................................................................................ xiv
STATEMENT OF FACTS ............................................................................. 1
I. Despite a conclusory summary judgment motion and evidence that
Coastal Motorcars did not receive notice, Plaintiffs obtained a no-
response summary judgment. ...................................................................... 1
II. Plaintiff Brown purchased a BMW 528i from Coastal Motorcars,
and Plaintiffs assert that problems arose after the sale. .............................. 3
III. Plaintiffs sued Coastal Motorcars and, after Coastal Motorcars’
counsel withdrew, obtained the summary judgment. .................................. 4
IV. Coastal Motorcars unsuccessfully moved for a new trial. .................... 6
SUMMARY OF THE ARGUMENT ............................................................. 8
ARGUMENT .................................................................................................. 9
I. The trial court erred by granting summary judgment on a motion that
did not state grounds for the judgment. ....................................................... 9
A. A trial court cannot grant a traditional summary judgment by
default; rather, the motion must state sufficient grounds and have
sufficient evidentiary support. .................................................................. 9
B. The grounds must be in the motion itself and must show how the
evidence establishes or negates the elements of a claim or defense. .... 10
C. Plaintiffs’ motion for summary judgment did not state any grounds
that would establish any of their liability theories. ............................... 14
iii
D. Plaintiffs’ motion did not support a damages award. ...................... 15
1. The trial court could not award damages on a motion that neither
requested damages nor stated grounds for a damages award. ........... 15
2. Because the alleged damages are unliquidated, any error as to
damages requires a reversal of the entire summary judgment. ......... 17
E. Because Plaintiffs’ motion did not state any ground for attorney fees,
the trial court erred by awarding attorney fees. .................................... 21
II. Plaintiffs’ evidence did not establish a right to summary judgment. ... 21
A. The movant’s evidence – not the lack of a response – must establish
the right to summary judgment. ............................................................. 21
B. As to damages, Plaintiffs did not show the absence of a genuine issue
of material fact and a right to judgment as a matter of law. ................. 22
1. Because Plaintiffs did not establish a right to summary judgment
on the amount of their economic damages, the summary judgment
must be reversed. ............................................................................... 23
2. Because DTPA additional damages cannot be proven as a matter
of law, the summary judgment must be reversed. ............................. 28
C. Plaintiffs did not establish a right to summary judgment on any of
their 16 causes of action. ....................................................................... 29
1. Deceptive Trade Practices Act ...................................................... 29
2. Breach of contract .......................................................................... 35
3. Negligence and gross negligence .................................................. 36
4. Fraud, fraud by nondisclosure, and negligent misrepresentation .. 38
5. Unconscionability .......................................................................... 42
6. Conversion ..................................................................................... 42
iv
7. Quantum meruit, quasi contract, assumpsit, detrimental reliance,
promissory estoppel, unjust enrichment, and money had and
received .............................................................................................. 44
D. Plaintiffs did not establish a right to summary judgment on liability
for DTPA additional damages. .............................................................. 49
E. Unless Plaintiffs established a right to summary judgment on a
theory that permits recovery of attorney fees, the award of attorney fees
is error.................................................................................................... 50
III. The trial court abused its discretion by not setting the summary
judgment aside. .......................................................................................... 51
A. Due process requires setting aside the summary judgment. ............. 51
B. The trial court also abused its discretion by not setting aside the
summary judgment for excusable accident or mistake. ......................... 59
1. The Court may have to decide whether to apply the three-part
Craddock test or the two-part Carpenter test. ................................... 59
2. Coastal Motorcars’ motion for new trial satisfied both tests. ....... 63
CONCLUSION AND PRAYER FOR RELIEF ........................................... 66
CERTIFICATE OF SERVICE ..................................................................... 68
CERTIFICATE OF WORD-COUNT COMPLIANCE ............................... 69
v
INDEX OF AUTHORITIES
Cases
Amedisys Inc. v. Kingwood Home Health Care L.L.C., 437 S.W.3d 507
(Tex. 2014) ..................................................................................... 10, 21-22
Amoco Production Co. v. Smith, 946 S.W.2d 162 (Tex. App. – El Paso 1997,
no writ) ........................................................................................... 46-47, 51
Badall v. Durgapersad, No. 9-08-188-CV, 2009 WL 857995 (Tex. App. –
Beaumont 2009, no pet.) ......................................................... 20, 23, 28, 33
Bank of Am. N.A. v. Eisenhauer, No. 13-09-4-CV, 2010 WL 2784031 (Tex.
App. – Corpus Christi July 15, 2010, no pet.)...................................... 12-15
Barclay v. Burge, 245 S.W.2d 1021 (Tex. Civ. App. – Beaumont 1952, no
writ) ........................................................................................................... 23
Bay Area Healthcare Group Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007)
................................................................................................................... 55
Becerra v. Ball, No. 13-10-361-CV, 2011 WL 3366361 (Tex. App. – Corpus
Christi Aug. 4, 2011, no pet.) ............................................................... 13-14
BMW of N. Amer. Inc. v. Gore, 517 U.S. 559, 570 (1996) ........................... 37
Buc-ee’s Ltd. v. Hribek, No. 3-08-120-CV, 2009 WL 5149922 (Tex. App. –
Austin Dec. 31, 2009, no pet.)............................................................. 18, 20
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002)
.................................................................................................. 60, 61-64, 66
Chilton Ins. Co. v. Pate & Pate Enterps. Inc., 930 S.W.2d 877 (Tex. App. –
San Antonio 1996, writ den.) .................................................................... 35
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) . 11
Clear Lake Ctr. L.P. v. Garden Ridge L.P., 416 S.W.3d 527 (Tex. App. –
Houston [14th Dist.] 2013, no pet.) ............................................................ 19
Colvin v. Red Steel Co., 682 S.W.2d 243 (Tex. 1984) ................................. 36
vi
Corpus Christi Day Cruise L.L.C. v. Christus Spohn Health Sys. Corp., 398
S.W.3d 303 (Tex. App. – Corpus Christi 2012, pet. den.) ........................ 51
Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124 (Tex. 1939) ...... 59-64
Currey v. Lone Star Steel Co., 676 S.W.2d 205 (Tex. App. – Fort Worth
1984, no writ) ............................................................................................ 42
Doctors Hosp. 1997 L.P. v. Sambuca Houston L.P., 154 S.W.3d 634 (Tex.
App. – Houston [14th Dist.] 2004, pet. abated) ................................... 49, 51
Edlund v. Bounds, 842 S.W.2d 719 (Tex. App. – Dallas 1992, writ den.) .. 43
Equistar Chems. L.P. v. Dresser-Rand Co., No. 14-02-874-CV, 2008 WL
850132 (Tex. App. – Houston [1st Dist.] Apr. 1, 2008, no pet.) ............... 20
Estrada v. Dillon, 44 S.W.3d 558 (Tex. 2001) ............................................. 19
Fed. Land Bank Assn. v. Sloane, 825 S.W.2d 439 (Tex. 1991) ................... 39
Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007)...................... 34, 38
Fortune Production Co. v. Conoco Inc., 52 S.W.3d 671 (Tex. 2000) .... 45-46
Garcia v. Escobar, No. 13-13-268-CV, 2014 WL 1514288 (Tex. App. –
Corpus Christi Apr. 15, 2014, pet. den.) ................................................... 52
Garcia v. Lucero, 366 S.W.3d 275, 281 (Tex. App. – El Paso 2012, no pet.)
.............................................................................................................. 48-49
Green Tree Fin. Corp. v. Garcia, 988 S.W.2d 776 (Tex. App. – San Antonio
1999, no pet.) ............................................................................................. 20
Heldenfels Bros. Inc. v. City of Corpus Christi, 832 S.W.2d 39 (Tex. 1992)
............................................................................................................. 45, 47
Henry S. Miller Co. v. Hamilton, 813 S.W.2d 631 (Tex. App. – Houston [1st
Dist.] 1991, no writ) ............................................................................ 19, 28
Henry Schein Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2003) ..................... 34
Horizon Shipbldg. Inc. v. BLyn II Holding L.L.C., 324 S.W.3d 840 (Tex.
App. – Houston [14th Dist.] 2010, no pet.) ................................................ 39
vii
In re Dillard Dept. Stores Inc., 198 S.W.3d 778 (Tex. 2006) ...................... 59
In re FirstMerit Bank N.A., 52 S.W.3d 749 (Tex. 2001).............................. 38
In re Whataburger Restaurants L.P., 429 S.W.3d 597 (Tex. 2014) ....... 30-31
Jim Walter Homes Inc. v. Valencia, 690 S.W.2d 239 (Tex. 1985) .............. 28
Jones v. Zearfoss, _ S.W.3d _, No. 4-14-83-CV, 2015 WL 101592 (Tex.
App. – San Antonio 2015, no pet. hist.) .................................................... 40
Kerlin v. Arias, 274 S.W.3d 666 (Tex. 2008) ............................................... 26
L.M. Healthcare Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996) ....................... 6
Leyendecker & Assocs. Inc. v. Wechter, 683 S.W.2d 369 (Tex. 1984) .. 17, 26
Maan v. First ATM Inc., No. 3-06-698-CV, 2008 WL 5210923 (Tex. App. –
Austin Dec. 12, 2008, no pet.)............................................................. 12, 14
Madisonville State Bank v. Canterbury Stuber Elder Gooch & Surratt P.C.,
209 S.W.3d 254 (Tex. App. – Dallas 2006, no pet.) ............................ 11-15
Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) .................... 53, 58, 61, 64
McConnell v. Southside I.S.D., 858 S.W.2d 337 (Tex. 1993) ......10-11, 15-16
Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987) ........... 32-33
MMP Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) .......................................... 11
Muston v. Nueces County Sheriff’s Dept., 122 S.W.3d 469 (Tex. App. –
Corpus Christi 2003, no pet.) .................................................................... 17
Nabors Drilling U.S.A. Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009) .......... 36
Newsom v. State, 922 S.W.2d 274 (Tex. App. – Austin 1996, writ den.) .... 18
Okorafor v. Lewis, No. 14-08-130-CV, 2010 WL 1343125 (Tex. App. –
Houston [14th Dist.] Apr. 6, 2010, no pet.) ......................................... 20, 23
Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80 (1988)..................... 52, 58, 61
Preston Reserve L.L.C. v. Compass Bank, 373 S.W.3d 652 (Tex. App. –
Houston [14th Dist.] 2012, no pet.) ............................................................ 25
viii
Profitlive Partnership v. Surber, 248 S.W.3d 259 (Tex. App. – Fort Worth
2007, no pet.) ....................................................................................... 22, 27
Rente Co. v. Truckers Express Inc., 116 S.W.3d 326 (Tex. App. – Houston
[14th Dist.] 2003, no pet.) .......................................................................... 43
Rhone-Poulenc Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) .................... 10, 22
Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App. – Houston [1st Dist.] 1997,
no writ) ................................................................................................ 41, 50
Scholtz v. Sigel, 601 S.W.2d 516 (Tex. Civ. App. – Dallas 1980, no writ)
................................................................................................................... 18
Science Spectrum Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997)............. 9-10
Shell Oil Co. v. Humphrey, 880 S.W.2d 170 (Tex. App. – Houston [14th
Dist.] 1994, writ den.) ............................................................................... 38
Smith v. Holmes, 53 S.W.3d 815 (Tex. App. – Austin 2001, no pet.).... 52, 59
Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572 (Tex. 1991)..... 35
SPT Fed. Credit Union v. Big H Auto Auction Inc., 761 S.W.2d 800 (Tex.
App. – Houston [1st Dist.] 1988, no writ).................................................. 24
Tactical Air Defense Servs. Inc. v. Searock, 398 S.W.3d 341 (Tex. App. –
Dallas 2013, no pet.)............................................................................ 56, 59
Taylor v. Bewley, 56 S.W. 746 (Tex. 1900) ................................................. 18
Tex. Dept. of Transp. v. Crockett, 257 S.W.3d 412 (Tex. App. – Corpus
Christi 2008, pet. den.) ........................................................................ 36, 43
Torres v. Garcia, No. 4-11-822-CV, 2012 WL 3808593 (Tex. App. – San
Antonio Aug. 31, 2012, no pet.) .......................................................... 16, 21
TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) ....... 54
Trebesch v. Morris, 118 S.W.3d 822 (Tex. App. – Fort Worth 2003, pet.
den.) ..................................................................................................... 16, 21
Warren v. U.S. Bank N.A., No. 2-08-256-CV, 2009 WL 485677 (Tex. App. –
Fort Worth Feb. 26, 2009, no pet.) ...................................................... 12, 14
ix
Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) .................................... 53, 60
Willis v. Donnelly, 118 S.W.3d 10 (Tex. App. – Houston [14th Dist.] 2003),
aff’d in part and rev’d in part, 199 S.W.3d 262 (Tex. 2006) ................... 18
Statutes
TEX. ACTS (75th Leg.), Ch. 887 (1997) ......................................................... 54
TEX. BUS. & COM. CODE §17.45 ............................................................. 31, 49
TEX. BUS. & COM. CODE §17.46 ........................................................ 29-30, 65
TEX. BUS. & COM. CODE §17.50 ........................................... 28, 30, 34, 49, 51
TEX. BUS. & COM. CODE §2.313 ................................................................... 33
TEX. BUS. & COM. CODE §2.314 ................................................................... 32
TEX. BUS. & COM. CODE §2.714 ................................................................... 18
TEX. BUS. ORG. CODE §5.201 ....................................................................... 57
TEX. BUS. ORG. CODE §5.202 ....................................................................... 55
TEX. CIV. PRAC. & REM. CODE §30.015 ............................................ 53-54, 58
TEX. CIV. PRAC. & REM. CODE §38.001 ....................................................... 51
Rules
TEX. DISC. R. PROF. CONDUCT 1.15 .............................................................. 56
TEX. R. APP. P. 44.1 ......................................................... 17, 19-20, 27, 63, 66
TEX. R. CIV. P. 10.......................................................................................... 56
TEX. R. CIV. P. 166a ............................................... 9, 11-12, 14, 22, 27, 29, 31
TEX. R. CIV. P. 21a ........................................................................................ 57
TEX. R. CIV. P. 329b.................................................................................. 6, 63
Other Authorities
x
BLACK’S LAW DICTIONARY (10th ed.) ........................................................... 48
xi
STATEMENT OF THE CASE
Mary Alice Garcia and Mary Lou Brown (“Plaintiffs”) sued Coastal
Motorcars on various causes of action arising from the purchase of a used
car. C.R. 6 (pet.). The trial court (Hon. Jose Longoria, 214th District Court,
Nueces County) granted Plaintiffs’ motion for summary judgment and
awarded damages, attorney fees, and interest. C.R. 415-416 (order). Because
Coastal Motorcars did not receive Plaintiffs’ motion and accompanying
notice of hearing, Coastal Motorcars made a motion for new trial and asked
that the trial court vacate the summary judgment. C.R. 421. The trial court
initially granted the motion, C.R. 450, before withdrawing the order that
granted the motion. C.R. 459.
Coastal Motorcars appeals from the trial court’s judgment. C.R. 460;
see also Am. Not. of Appeal (filed Dec. 15, 2014).
xii
STATEMENT REGARDING ORAL ARGUMENT
In the first 12 pages of this brief’s argument section, Coastal
Motorcars demonstrates two errors that are apparent on the face of Plaintiffs’
motion for summary judgment. See below, at 9-20. The Court’s analysis can
stop there, with its review of the record essentially confined to that seven-
page motion and the trial court’s summary judgment order.
Assuming the Court stops there, oral argument would provide little
benefit to the case.
The appellate rules do not contemplate the presentation of issues
seriatim over multiple briefs. Therefore, out of caution, Coastal Motorcars
has briefed additional issues – including the sufficiency of the evidence to
support a summary judgment, see below, at 21-50, and whether the failed
delivery of Plaintiffs’ summary judgment motion and notice of hearing
require setting the summary judgment aside. See below, at 51-66. Because
those additional issues address additional parts of the record, oral argument
may aid the Court’s decisional process on those issues.
xiii
ISSUES PRESENTED
The following issues are presented by this appeal:
1. Did the trial court commit any error by awarding the
summary judgment? Do the errors require reversal of the
entire summary judgment, or can the summary judgment
be affirmed or reformed in any part? See below, at 9-51.
2. Did the trial court abuse its discretion by not setting
the summary judgment aside after Coastal Motorcars
made its motion for new trial? See below, at 51-66.
xiv
STATEMENT OF FACTS
I. Despite a conclusory summary judgment motion and evidence that
Coastal Motorcars did not receive notice, Plaintiffs obtained a no-
response summary judgment.
Mary Alice Garcia and Mary Lou Brown (“Plaintiffs”) filed their
motion for summary judgment on June 6, 2014. C.R. 184. They asked the
trial court to grant a summary judgment in their favor on 16 causes of action.
C.R. 188. Their motion did not explain how their evidence satisfied the
elements of any, let alone all 16, of the causes of action. Id. Their motion did
not claim any particular amount of damages. Id.
Plaintiffs filed their motion for summary judgment nine days after the
trial court signed a May 28, 2014, order permitting Eric Stewart’s
withdrawal as counsel for Coastal Motorcars. C.R. 181. Stewart filed his
motion to withdraw only one day earlier. C.R. 177. Plaintiffs attempted to
serve their motion for summary judgment and a notice of hearing on a post-
office box that Stewart identified as Coastal Motorcars’ “last known
address.” C.R. 177, 190, 408.
Coastal Motorcars did not receive the motion and notice of hearing.
C.R. 433 (Allen aff.), 494 (returned envelope). Postal Service tracking
records contain the notation “Moved, Left no Address” dated June 16, 2014,
and show that the item was “delivered” on June 17, 2014, within a zip code
1
(78404) that corresponds to the office of Plaintiffs’ counsel but not the post-
office box (78466). C.R. 436; compare C.R. 174 (showing counsel’s
address). The envelope bears the Postal Service’s stamp
“UNDELIVERABLE AS ADDRESSED, FORWARDING ORDER
EXPIRED” and a stamp of Plaintiffs’ counsel that says “Received Denny
Barre.” C.R. 494.
Coastal Motorcars had sold its BMW of Corpus Christi dealership in
December 2012. C.R. 431-432. Coastal Motorcars closed the post office box
in January or February 2014 because mail was no longer arriving there and
the dealership’s new owner did not want the box. Id. Coastal Motorcars
continued to maintain a registered agent and office in Houston. C.R. 432,
434, 438.
Even though Stewart supplied a bad “last known address,” Plaintiffs
went forward with the July 1, 2014, hearing on their motion for summary
judgment. R.R. 2:4. Plaintiffs told the trial court that “[n]o response is
forthcoming” but did not mention that the Postal Service returned the service
copy of the motion and notice of hearing. Id.
The trial court granted Plaintiffs’ motion for summary judgment. R.R.
2:6 (oral ruling); C.R. 415 (order). Even though the motion did not expressly
request damages or attorney fees, C.R. 184-190, the summary judgment
2
awarded “$22,707.43 as economic damages,” “$68,122.29 as additional
damages,” $72,762.94 in trial-court attorney fees, and additional amounts for
appellate attorney fees. C.R. 415-416. None of those amounts are stated in
the summary judgment motion. See C.R. 184-190. 1
II. Plaintiff Brown purchased a BMW 528i from Coastal Motorcars,
and Plaintiffs assert that problems arose after the sale.
Coastal Motorcars sold a 2008 BMW 528i automobile (“the 528i”) to
Mary Lou Brown on October 19, 2011. C.R. 196. Brown traded in another
vehicle, of the same year and model, that had more miles. C.R. 192, 196.
The sale price for the 528i was $37,890.25. C.R. 196. Brown
purchased extended warranty and maintenance contracts for $2,880.00 and
$1,995.00. Id. Taxes and fees brought the total balance due to $43,206.85.
Id. Because Brown had no equity in her trade-in vehicle, she financed the
entire $43,206.85 with a 72-month loan. C.R. 196, 198-200.
Although the sale documents identify Brown as the owner, Garcia
claims that she “was always the intended exclusive driver and user of the
vehicle.” C.R. 192.
Garcia alleges that Coastal Motorcars failed to disclose that the 528i
had been in a prior wreck that caused “frame/unibody damage.” C.R. 193.
1
Only the following dollar amounts appear in the motion: $48,534.48, $6,000, and
$24,500. C.R. 185-186.
3
She further alleges that she began to experience problems with the 528i
shortly after the purchase, that she took the vehicle to Coastal Motorcars’
dealership “a number of times,” that Coastal Motorcars refused her request
for a similar automobile as a replacement, and that another dealership would
not accept the 528i as a trade-in. C.R. 192-193.
III. Plaintiffs sued Coastal Motorcars and, after Coastal Motorcars’
counsel withdrew, obtained the summary judgment.
Plaintiffs sued Coastal Motorcars on February 5, 2013. C.R. 1. After
Coastal Motorcars answered the suit, C.R. 28, some discovery took place.
See e.g., C.R. 66 (deposition certificate) 105-149 (discovery responses). The
trial court signed an order setting the case for trial on September 1, 2014.
C.R. 159.
On May 27, 2014, Stewart filed his motion to withdraw as counsel for
Coastal Motorcars. C.R. 177. The motion noted that Coastal Motorcars did
not consent to withdrawal. Id. Stewart represented that a copy of the motion
“has been delivered to the Defendant[,]” but he did not state when or how
the motion was delivered. Id. Stewart provided “P.O. Box 60169” in Corpus
Christi as the “last known address” for Coastal Motorcars, id., even though
Coastal Motorcars had closed that post-office box months earlier. C.R. 431-
4
432. Nothing in the record shows that Coastal Motorcars actually received
the motion or the withdrawal order.
One day after Stewart filed the motion, the trial court signed an order
permitting Stewart’s withdrawal. C.R. 181. On the same day, the trial court
also signed an order compelling mediation by July 9, 2014. C.R. 182-183.
As described above, at 1, nine days after the withdrawal and
mediation orders, Plaintiffs filed their motion for summary judgment. Also,
as described above, at 1-2, Coastal Motorcars did not receive the motion or
the notice, which the Postal Service returned to Plaintiffs’ counsel on June
17, 2014. And two weeks later on July 1, 2014, Plaintiffs went forward with
the summary judgment hearing anyway and obtained the summary
judgment. See above, at 2-3.
Plaintiffs’ counsel then e-mailed the judgment to Coastal Motorcars’
principal Art Allen. C.R. 431. 2 Plaintiffs’ counsel did not e-mail the motion
for summary judgment or the notice of hearing to Allen before obtaining the
summary judgment. Id. 3
2
Allen is the president, the secretary, the registered agent, and a director of Coastal Auto
Enterprises Inc., which is the general partner of Coastal Motorcars Ltd. C.R. 431, 439.
3
Plaintiffs requested an abstract of judgment and provided the district clerk with a
different “last known address” for Coastal Motorcars: 4225 South Staples Street in
Corpus Christi. C.R. 418. That was the address of the BMW dealership, see, e.g., C.R.
196 (sale document), that Coastal Motorcars sold in December 2012. C.R. 432. That was
5
IV. Coastal Motorcars unsuccessfully moved for a new trial.
Coastal Motorcars filed a sworn motion for new trial on July 31, 2014.
C.R. 421, 429. In addition to raising other matters, Coastal Motorcars denied
receipt of Plaintiffs’ motion for summary judgment and notice of hearing.
C.R. 423, 431-432.
The trial court heard the motion for new trial on September 18, 2014.
R.R. 3:4. Plaintiffs’ counsel did not appear at the hearing, and the trial court
granted the motion. R.R. 3:4-6; C.R. 450.
Later that day, Plaintiffs moved to set aside the order granting a new
trial. C.R. 451. Plaintiffs argued that, on September 15, 2014, the motion for
new trial “was overruled by operation of law, rendering moot any hearing on
Defendant’s [Coastal Motorcars’] motion.” C.R. 451. 4
Plaintiffs’ counsel also claimed a lack of notice of the September 18
hearing. C.R. 452. Plaintiffs’ counsel said that the notice of hearing had an
incorrect digit, identifying Plaintiffs’ fax number as “361-884-4079” instead
also the former address of Coastal Motorcars’ registered office, and Coastal Motorcars
had changed that address in March 2013. C.R. 438.
4
Plaintiffs’ mootness argument was wrong. Although a motion for new trial is overruled
by operation of law on the 75th day after a signed judgment, TEX. R. CIV. P. 329b(c), the
trial court had plenary power to grant the motion or otherwise modify or vacate the
judgment for another 30 days. TEX. R. CIV. P. 329b(e); see also L.M. Healthcare Inc. v.
Childs, 929 S.W.2d 442, 444 (Tex. 1996) (discussing Rule 329b(c, e)). September 18,
2014, was only the third day of that 30-day period.
6
of “361-883-4079.” Id.; see also C.R. 455 (notice of September 18 hearing).
Plaintiffs argued:
Defendant failed to provide notice of any hearing in
violation of Texas law and in violation of Plaintiffs’
fundamental due process rights.
C.R. 453.
Plaintiffs sent notice of a September 25, 2014, hearing by fax and e-
mail. C.R. 455-458. The hearing did not occur. The trial court nonetheless
signed an order that day that stated that the September 18 order “is
withdrawn and vacated.” C.R. 459.
That same day, Coastal Motorcars noticed its appeal. C.R. 460; see
also Am. Not. of Appeal (filed Dec. 15, 2014).
7
SUMMARY OF THE ARGUMENT
Plaintiffs’ motion for summary judgment mentioned their causes of
action but did not state any grounds for summary judgment on any of those
causes of action. That alone is fatal to the grant of summary judgment.
Plaintiffs’ motion also failed to request damages or state summary judgment
grounds for damages, and because the damages are not liquidated, this too
requires reversal of the entire summary judgment. See below, at 9-21.
Nor did Plaintiffs’ evidence establish a right to summary judgment on
any of their liability theories or on their damages. Absent sufficient
summary judgment proof of both liability and damages, the entire summary
judgment must be reversed. See below, at 21-51.
The trial court abused its discretion by not setting aside the summary
judgment after Coastal Motorcars moved for a new trial. Coastal Motorcars
did not receive adequate notice of Plaintiffs’ motion for summary judgment
or of the hearing date. Coastal Motorcars also established an excusable
accident or mistake that requires setting aside the summary judgment. See
below, at 51-66.
8
ARGUMENT
I. The trial court erred by granting summary judgment on a motion
that did not state grounds for the judgment.
The trial court’s summary judgment cannot be sustained because
Plaintiffs’ motion for summary judgment failed to state any grounds for
summary judgment on any of Plaintiffs’ 16 causes of action or for any award
of damages and attorney fees.
A. A trial court cannot grant a traditional summary judgment by
default; rather, the motion must state sufficient grounds and have
sufficient evidentiary support.
Because Plaintiffs moved for summary judgment on their own causes
of action, C.R. 188, Plaintiffs’ motion was a traditional motion for summary
judgment. TEX. R. CIV. P. 166a(a, c). 5
A traditional motion for summary judgment “must itself expressly
present the grounds upon which it is made, and must stand or fall on these
grounds alone.” Science Spectrum Inc. v. Martinez, 941 S.W.2d 910, 912
(Tex. 1997). This is an express requirement of the rule: “The motion for
summary judgment shall state the specific grounds therefor.” TEX. R. CIV. P.
166a(c). “The movant must establish its right to summary judgment on the
5
Plaintiffs did not assert “that there is no evidence of one or more essential elements of a
claim or defense on which [Coastal Motorcars] would have the burden of proof at trial[,]”
as would be required for a no-evidence motion. TEX. R. CIV. P. 166a(i) (quoted).
9
issues expressly presented to the trial court by conclusively proving all
elements of the movant’s cause of action or defense as a matter of law.”
Rhone-Poulenc Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
The movant therefore bears an initial burden of pleading summary
judgment grounds and then proving them. “But if the movant does not
satisfy its initial burden, the burden does not shift and the non-movant need
not respond or present any evidence.” Amedisys Inc. v. Kingwood Home
Health Care L.L.C., 437 S.W.3d 507, 511 (Tex. 2014).
That is, “the non-movant’s failure to except or respond cannot supply
by default the grounds for summary judgment or the summary judgment
proof necessary to establish the movant’s right” to summary judgment.
McConnell v. Southside I.S.D., 858 S.W.2d 337, 342 (Tex. 1993).
B. The grounds must be in the motion itself and must show how the
evidence establishes or negates the elements of a claim or defense.
Grounds for summary judgment must be “expressly presented in the
motion for summary judgment itself”; otherwise, “the motion is legally
insufficient as a matter of law.” McConnell, 858 S.W.2d at 342. “In other
words, in determining whether grounds are expressly presented, we may not
rely on briefs or summary judgment evidence.” Science Spectrum, 941
S.W.2d at 912. Nor may a court “read between the lines, infer or glean from
10
the pleadings or the proof any grounds for granting the summary judgment
other than those grounds expressly set forth before the trial court in the
motion for summary judgment.” McConnell, at 343 (quot. omitted). 6
A plaintiff who seeks summary judgment must “conclusively establish
all essential elements of [the plaintiff’s] cause of action.” MMP Ltd. v.
Jones, 710 S.W.2d 59, 60 (Tex. 1986). This requires the plaintiff to “discuss
the elements of the theories” on which he relies to establish the defendant’s
liability. Madisonville State Bank v. Canterbury Stuber Elder Gooch &
Surratt P.C., 209 S.W.3d 254, 259 (Tex. App. – Dallas 2006, no pet.).
A conclusory discussion of a cause of action does not “show that …
there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law … .” TEX. R. CIV. P. 166a(c) (emph.
added). For example, a plaintiff’s motion was legally insufficient where –
despite having “detail[ed] the voluminous evidence” – the motion’s
discussion of a conversion claim was the following:
Therefore, as a matter of law, the $ 59,424.82 represented
by the Checks, was taken by the Firm subject to MSB’s
security interest, the Firm has converted the $59,424.82
by failing to turn it over to MSB on demand, and MSB is
entitled to judgment against the Firm for the $59,424.82.
6
A “non-movant needs no answer or response to the motion to contend on appeal that the
grounds expressly presented to the trial court by the movant’s motion are insufficient as a
matter of law to support summary judgment.” City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979).
11
Madisonville, at 259 (int. punc. omitted). In another case, a plaintiff’s
motion was held insufficient as to a fraud claim even though the motion
mentioned the fraud claim and said that the motion “embraces all of the
causes of action referred to above[.]” Maan v. First ATM Inc., No. 3-06-698-
CV, 2008 WL 5210923, *6 (Tex. App. – Austin Dec. 12, 2008, no pet.).
While the motion identified and discussed the elements of a breach of
contract claim, the motion did not offer any similar discussion of the fraud
claim. Id.
Identifying the elements of a cause of action is insufficient because
the motion must also “show” that each element is satisfied. See, e.g., Warren
v. U.S. Bank N.A., No. 2-08-256-CV, 2009 WL 485677, *3 (Tex. App. –
Fort Worth Feb. 26, 2009, no pet.); see also TEX. R. CIV. P. 166a(c) (quoted).
For example, a plaintiff’s motion that “correctly stated that a declaratory
judgment action is only available where there is a justiciable controversy”
was insufficient as a matter of law because the motion “failed to specify any
justiciable controversy existing in [the] case.” Warren, at *3.
Nor may a movant plaintiff rely on any “recitation of facts” or “on the
attached summary judgment evidence to provide the grounds for the
motion.” Bank of Am. N.A. v. Eisenhauer, No. 13-09-4-CV, 2010 WL
2784031, *5 (Tex. App. – Corpus Christi July 15, 2010, no pet.). For
12
example, an eight-page motion with 229 pages of evidence was insufficient
because the motion did not state grounds for awarding summary judgment to
a plaintiff on his breach-of-contract claim. Id.
Even a motion that “details the voluminous evidence” is no substitute
for a motion that identifies the elements of the causes of action and shows
that the elements are satisfied. Madisonville, at 259 (quoted, motion held
insufficient); see also Eisenhauer, at *6 (motion held insufficient).
These principles are not unique to plaintiffs. For example, a
defendant’s motion was insufficient where the defendant provided a “mere
recitation of ‘undisputed’ facts” and only “set forth the two elements” that
those facts supposedly negated. Becerra v. Ball, No. 13-10-361-CV, 2011
WL 3366361, *4 (Tex. App. – Corpus Christi Aug. 4, 2011, no pet.).
Because the defendant’s motion failed to “provide any explanation of how
the ‘undisputed facts’ conclusively disproved the elements[,]” the motion
did not “expressly state the grounds or reasons” for summary judgment. Id.
As a result, the burden never shifted to the plaintiff to respond to the motion.
Id.
13
C. Plaintiffs’ motion for summary judgment did not state any
grounds that would establish any of their liability theories.
Like the motions in Madisonville, Eisenhauer, and Becerra, Plaintiffs’
motion for summary judgment discussed evidence in the summary judgment
record. C.R. 185-189. But those cases explain that discussing the evidence is
not the same as “stat[ing] the specific grounds” for summary judgment. See
above, at 11-13 (discussing cases); see also TEX. R. CIV. P 166a(c) (quoted).
As seen in Warren and Becerra, identifying the elements of a cause of
action is insufficient if the motion does not explain how each element is
proven or disproven as a matter of law. See above, at 12-13 (discussing
cases). Plaintiffs’ motion did not even identify the elements of their causes
of action, let alone show how the evidence satisfied those elements.
Plaintiffs may have mentioned their causes of action, but they did not
“state the specific grounds” that would entitle them to summary judgment on
those causes of action. TEX. R. CIV. P. 166a(c) (quoted); compare
Madisonville, 209 S.W.3d at 259, and Maan, 2008 WL 5210923 at *6. The
only mention of Plaintiffs’ causes of action appeared in the first paragraph of
the “Relief Requested” section of their motion, where Plaintiffs said:
The pleadings of the parties filed herein together with the
attached Exhibits show that there is no genuine issue as
to any material fact in this Cause with regard to
Plaintiffs’ causes of action against Defendant for
violations of the DTPA, breach of contract, fraud,
14
unconscionability, conversion, negligence, negligent
misrepresentation, gross negligence, common law fraud
and fraud by non-disclosure, quantum meruit, quasi
contract, assumpsit, detrimental reliance, promissory
estoppel, unjust enrichment, and money had and received
as described above. Therefore, Plaintiffs are entitled to
judgment against Defendant as a matter of law on each of
these causes of action.
C.R. 188. As the above-cited cases show, such a statement is not enough.
See above, at 11-13.
Plaintiffs’ motion did not present any grounds for summary judgment
on any of their 16 causes of action. That makes their motion “legally
insufficient as a matter of law.” McConnell, 858 S.W.2d at 342, quoted in
Madisonville, at 259. The trial court erred by granting a legally insufficient
summary judgment motion. See, e.g., Eisenhauer, at *5.
D. Plaintiffs’ motion did not support a damages award.
1. The trial court could not award damages on a motion
that neither requested damages nor stated grounds for a
damages award.
Plaintiffs’ motion for summary judgment did not expressly ask for a
damages award – let alone for the specific amounts awarded. See C.R. 188-
189. Plaintiffs asked for such things as “the complete relief requested by
them,” C.R. 188, “all relief requested in its [sic] Original Petition and
Motion for Summary Judgment,” C.R. 189, and “such other and further
relief … to which they may show themselves to be justly entitled.” Id.
15
To treat those statements as a request for damages would require a
court to “read between the lines” or “infer or glean from the pleadings or
proof” to identify grounds for a summary judgment on damages. McConnell,
858 S.W.2d at 343 (quot. omitted). A trial court may not do that. Id. Rather,
a trial court may only grant summary judgment on “grounds expressly set
forth” in the summary judgment motion itself. Id. A party’s pleadings and
summary judgment evidence is no substitute for a ground stated in the
motion. See, e.g., Torres v. Garcia, No. 4-11-822-CV, 2012 WL 3808593,
*5 (Tex. App. – San Antonio Aug. 31, 2012, no pet.) (without ground for
attorney fees, award of attorney fees was error). Even mentioning a right to
damages in a prayer for relief would not suffice, but Plaintiffs did not do
even that much. See Trebesch v. Morris, 118 S.W.3d 822, 827 (Tex. App. –
Fort Worth 2003, pet. den.) (“mere mention of attorneys’ fees in the prayer”
of motion held insufficient).
By awarding “economic” and “additional” damages, C.R. 415, the
trial court erred by granting relief on grounds that were not stated in the
summary judgment motion. The same is true about awarding damages in
amounts that are not stated anywhere in the motion.
Moreover, a “trial court cannot grant more relief than was requested
by a motion for summary judgment.” Muston v. Nueces County Sheriff’s
16
Dept., 122 S.W.3d 469, 471 (Tex. App. – Corpus Christi 2003, no pet.). The
trial court did exactly that by awarding damages on a motion that did not
expressly request damages. The trial court also erred by awarding damages
in specific amounts when the motion did not request any particular amount.
2. Because the alleged damages are unliquidated, any error
as to damages requires a reversal of the entire summary
judgment.
The erroneous award of damages requires a remand on liability as
well. An appellate court “may not order a separate trial solely on
unliquidated damages if liability is contested.” TEX. R. APP. P. 44.1(b).
Plaintiffs’ summary judgment motion did not identify any of the
damages awarded as liquidated damages. See C.R. 184-190. Nor did the
motion provide any method for calculating damages.
At the summary judgment hearing, Plaintiffs’ counsel claimed that the
motion sought “economic damages equivalent to the difference between
what she’s required to pay for the vehicle and what they [Coastal Motorcars]
paid for it at auction.” R.R. 2:5-6. Such a contention is nowhere in the
motion. See C.R. 184-190. Nor would such a contention suffice. Plaintiffs
apparently were claiming an “out of pocket” measure of damages, which
“requires a comparison of the value received against the value parted with.”
Leyendecker & Assocs. Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984);
17
see also TEX. BUS. & COM. CODE §2.714(b) (similar measure for breach of a
warranty accompanying a sale of goods).
“Damages become ‘liquidated’ when the parties have agreed to the
amount at issue.” Newsom v. State, 922 S.W.2d 274, 281 (Tex. App. –
Austin 1996, writ den.) (emph. omitted); see also Taylor v. Bewley, 56 S.W.
746, 747 (Tex. 1900) (absent contractual stipulation, value of item is not
liquidated). 7 While Plaintiffs and Coastal Motorcars agreed to a purchase
price, C.R. 196, Plaintiffs do not allege that they and Coastal Motorcars
agreed that the 528i’s actual value at the time of sale was some different
amount. See C.R. 184-190 (summary judgment motion).
As a result, any difference between the purchase price and the actual
value is unliquidated.
The summary judgment also awarded “additional damages,” C.R. 415,
even though Plaintiffs’ motion made no mention of “additional damages.”
C.R. 184-190. Those damages presumably correspond to the request in
7
See also, e.g., Willis v. Donnelly, 118 S.W.3d 10, 41-42 (Tex. App. – Houston [14th
Dist.] 2003) (measure of damages required determination of fair market value of
corporate shares and was therefore unliquidated), aff’d in relevant part and rev’d in part,
199 S.W.3d 262, 275 (Tex. 2006) (approving Court of Appeals’ analysis); Scholtz v.
Sigel, 601 S.W.2d 516, 518 (Tex. Civ. App. – Dallas 1980, no writ) (“the difference
between the price paid for the horse and its actual value at the time of sale” constituted
unliquidated damages); compare Buc-ee’s Ltd. v. Hribek, No. 3-08-120-CV, 2009 WL
5149922, *3 (Tex. App. – Austin Dec. 31, 2009, no pet.) (breach-of-contract damages
were not determinable from parties’ contract and were therefore unliquidated).
18
Plaintiffs’ petition for “an award of discretionary additional damages” under
the Deceptive Trade Practices Act (“DTPA”). C.R. 16. DTPA additional
damages are unliquidated. Henry S. Miller Co. v. Hamilton, 813 S.W.2d 631,
634 (Tex. App. – Houston [1st Dist.] 1991, no writ).
Because Plaintiffs requested unliquidated damages, the Court cannot
remand the case for a new trial on damages alone. TEX. R. APP. P. 44.1(b).
The “plain language of rule 44.1(b) proscrib[es] a separate trial on
unliquidated damages when liability is contested.” Estrada v. Dillon, 44
S.W.3d 558, 562 (Tex. 2001). Coastal Motorcars contested liability by
making a general denial. C.R. 28. A general denial puts liability at issue, and
“its effect extends to contesting liability in the event of remand” even if a
defendant presented no “discrete challenge to liability” on appeal. Estrada,
at 562.
As a result, where damages are not liquidated, a summary judgment
for a plaintiff cannot be affirmed as to liability and reversed only as to
damages. See, e.g., Clear Lake Ctr. L.P. v. Garden Ridge L.P., 416 S.W.3d
527, 545 (Tex. App. – Houston [14th Dist.] 2013, no pet.) (reversing entire
summary judgment without considering liability issues); Okorafor v. Lewis,
No. 14-08-130-CV, 2010 WL 1343125, *4 (Tex. App. – Houston [14th Dist.]
19
Apr. 6, 2010, no pet.) (same). In such a situation, “any opinion on liability
… would be advisory.” Buc-ee’s, at *3.
Even if Plaintiffs’ actual damages were liquidated, the result would be
the same because DTPA additional damages are not liquidated. See above, at
17-20. Issues of liability, actual damages, and additional damages in DTPA
cases “are inextricably intertwined” such that a new trial is required on all
issues. Equistar Chems. L.P. v. Dresser-Rand Co., No. 14-02-874-CV, 2008
WL 850132, *6 (Tex. App. – Houston [1st Dist.] Apr. 1, 2008, no pet.).
Those issues are not “separable without unfairness” to at least the defendant.
TEX. R. APP. P. 44.1(b); Equistar, at *6. This result rests on the same
underlying principle as in punitive damages cases, where “the jury on
remand must consider all of the evidence in order to determine whether the
actions on which they base liability will support the assessment of punitive
damages.” Green Tree Fin. Corp. v. Garcia, 988 S.W.2d 776, 785 (Tex.
App. – San Antonio 1999, no pet.).
In summary: “Because damages in this case are unliquidated and [the
defendant] contests liability, the appropriate remedy is to remand the entire
cause as to both liability and damages.” Badall v. Durgapersad, No. 9-08-
188-CV, 2009 WL 857995 (Tex. App. – Beaumont 2009, no pet.) (reversing
summary judgment on all issues).
20
E. Because Plaintiffs’ motion did not state any ground for attorney
fees, the trial court erred by awarding attorney fees.
Even assuming that summary judgment could have been proper on
liability and damages, the trial court erred by also awarding attorney fees.
C.R. 416. The motion does not state any ground for recovery of attorney
fees. C.R. 184-190. As in Torres, Plaintiffs “pled for attorneys’ fees in their
petition and attached an affidavit to their motion for summary judgment
from an attorney in an attempt to establish the amount of reasonable and
necessary attorneys’ fees they believed they were due.” 2012 WL 3808593
at *5. “However, as noted above, grounds for summary judgment must be
expressly stated in the motion, and including a ground in the summary
judgment evidence itself is insufficient.” Id. (reversing summary judgment
award of attorney fees); see also Trebesch, 118 S.W.3d at 827 (same).
II. Plaintiffs’ evidence did not establish a right to summary judgment.
Even if Plaintiffs had stated grounds for summary judgment, the
evidence did not conclusively establish their causes of action and damages.
A. The movant’s evidence – not the lack of a response – must
establish the right to summary judgment.
Plaintiffs “had the burden to submit sufficient evidence that
established on its face that ‘there is no genuine issue as to any material fact’
and that [they are] ‘entitled to judgment as a matter of law.’” Amedisys, 437
21
S.W.3d at 511, quoting TEX. R. CIV. P. 166a(c). For example, summary
judgment may not be granted if the movant supplies no evidence of an
essential element or if the movant’s evidence is conflicting. See, e.g.,
Amedisys, at 512 (no evidence); Profitlive Partnership v. Surber, 248
S.W.3d 259, 262 (Tex. App. – Fort Worth 2007, no pet.) (conflicting
evidence).
“But if the movant does not satisfy its initial burden, the burden does
not shift and the non-movant need not respond or present any evidence.”
Amedisys, at 511. “The trial court may not grant summary judgment by
default because the nonmovant did not respond to the summary judgment
motion when the movant’s summary judgment proof is legally insufficient.”
Rhone-Poulenc, 997 S.W.2d at 222, quoted in Amedisys, at 512.
Even though Coastal Motorcars did not file a response, Plaintiffs had
no right to summary judgment unless they pleaded grounds and supplied
evidence to establish that right.
B. As to damages, Plaintiffs did not show the absence of a genuine
issue of material fact and a right to judgment as a matter of law.
Plaintiffs’ damages are unliquidated. See above, at 17-20. Even where
a movant plaintiff supplies evidence of unliquidated damages, generally a
“trial court err[s] by awarding unliquidated damages in a summary
22
proceeding, because such damages are subjective and therefore cannot be
proven as a matter of law.” Okorafor, 2010 WL 1343125 at *2. “Decisions
on unliquidated damages are inherently ones for the jury or judge to decide.”
Badall, 2009 WL 857995 at *2 (quot., int. punc. omitted). This case presents
no exception to the general rule.
Because the damages problem affects all of Plaintiffs’ causes of action
and requires a reversal of the entire summary judgment, see above, at 19-20,
Coastal Motorcars addresses that problem first.
1. Because Plaintiffs did not establish a right to summary
judgment on the amount of their economic damages, the
summary judgment must be reversed.
Neither the summary judgment motion nor the summary judgment
order explain how the $22,707.43 in economic damages were calculated.
C.R. 184-190 (mot.), 415 (order). Even if a court could credit Plaintiffs’
explanation at the summary judgment hearing, the “out of pocket” measure
of damages was not liquidated and therefore cannot be established as a
matter of law. See above, at 17-18 (discussing that measure).
Absent a stipulation to the 528i’s actual value on the date of its sale to
plaintiff Brown, a jury could reasonably conclude that the actual value fell
anywhere within a range of values. See, e.g., Barclay v. Burge, 245 S.W.2d
1021, 1023 (Tex. Civ. App. – Beaumont 1952, no writ) (distinguishing
23
liquidated damages cases in affirming jury finding as to value of bull).
Brown agreed to purchase the 528i for a “selling price” of $37,890.25. C.R.
196. Brown claims a higher price of $43,206.85, C.R. 194, but that amount
includes, among other things, an “extended warranty contract” and an
“extended maintenance contract.” C.R. 196. If a jury could rely on that
higher amount, the jury could also conclude that the extended warranty
contract and extended maintenance contract added value to the transaction,
whether in the original amounts of $2,880 and $1,995 or in some lesser
amount. C.R. 196. Plaintiffs neither alleged nor offered evidence that those
add-ons lacked any value. See, e.g., C.R. 184-190 (mot.), 191-195 (Garcia
aff.).
Coastal Motorcars purchased the 528i for $24,500 at an auction nearly
six months earlier. C.R. 313 (Apr. 28, 2011, auction sale contract). An
auction price alone cannot establish the actual value of an item, let alone at
the time of a later sale. See, e.g., SPT Fed. Credit Union v. Big H Auto
Auction Inc., 761 S.W.2d 800, 801-802 (Tex. App. – Houston [1st Dist.]
1988, no writ) (auction price was no evidence of boat’s market value). A
plaintiff must show that an earlier sale occurred under “ordinary”
circumstances and under comparable “market conditions.” Preston Reserve
L.L.C. v. Compass Bank, 373 S.W.3d 652, 663 (Tex. App. – Houston [14th
24
Dist.] 2012, no pet.) (successful bid at foreclosure sale was “incompetent
evidence of the property’s fair market value”). Plaintiffs’ motion did not
explain how, or prove that, the auction sale price on April 28, 2011,
established the 528i’s actual value when Brown purchased the 528i on
October 19, 2011. Plaintiffs have not even shown that the auction price is
competent evidence of that fact, let alone conclusive evidence.
Even if the auction sale price were competent evidence, a jury could
reasonably conclude that Coastal Motorcars added value to that amount by
performing maintenance and repairs to the car before selling it to Brown
nearly six months later. See C.R. 219 (May 12, 2011, entry).
A jury could also reasonably determine the 528i’s value by
considering the parties’ agreed-upon values for the purchased ($37,890.25)
and trade-in vehicles ($35,660), which were the same year and model, and
deducting reasonable amounts to account for the lost market value
attributable to defects or other undisclosed conditions that existed at the time
of the sale. C.R. 192, 196.
Plaintiffs, however, only described the 528i’s problems in general
terms. Garcia’s affidavit made such general statements as “I began to
experience problems with the vehicle” and “the vehicle has been in
BMWCC’s repair facility a number of times.” C.R. 192. She said that the
25
528i has “frame/unibody damage” from “a prior wreck” but provided no
details about the “nature or extent” of the damage or the effect of the
damage on the vehicle’s use. C.R. 193-194. Plaintiffs attached maintenance
records to their motion, C.R. 205-216, but some of those records pertain to
maintenance performed after Plaintiffs had driven the vehicle several
thousand miles. Compare C.R. 196 (sale contract, 23,133 mileage), 205
(repair invoice, 34,457 mileage), 206 (repair invoice, 32,358 mileage). 8
Plaintiffs’ summary judgment evidence, even considered in isolation,
would leave a jury with a range of figures and significant discretion in
applying the “out of pocket” measure of damages, which, as described
above, at 17-18, “requires a comparison of the value received against the
value parted with.” Leyendecker, 683 S.W.2d at 373. Without testimony
describing the severity of the problems, let alone attributing them to pre-sale
damage, a jury could reasonably conclude that the value of the vehicle was
closer to the agreed-upon $37,890.25 than the earlier auction sale price of
$24,500. Even if a jury were to use the higher $43,206.85 price that included
8
Plaintiffs offered no affidavit from Brown, who was the actual purchaser of the vehicle.
C.R. 196. Garcia’s affidavit says that she is “authorized to make this affidavit on behalf
of Mary Lou Brown as a result of a Statutory Durable Power of Attorney.” C.R. 195. An
individual’s affidavit, made on behalf of a second individual under a power of attorney, is
not based on the second individual’s personal knowledge and therefore is legally
insufficient proof of the second individual’s testimony. This arises from the general rule
that “[a]n affidavit showing no basis for personal knowledge is legally insufficient.”
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008).
26
the extended warranty and extended maintenance contracts, the jury could
make a corresponding upward adjustment to the $24,500 amount based on
the agreed value ($2,880 and $1,995) of those contracts or some lesser sum.
See above, at 3, 24. 9
None of those figures, however, explain the $22,707.43 in the
summary judgment order. C.R. 415. Although Plaintiffs represented, at the
summary judgment hearing, that the amount was the “difference between
what she’s required to pay for the vehicle and what they [Coastal Motorcars]
paid for it at auction,” R.R. 2:5-6, either that representation or Plaintiffs’
calculation is wrong.
Plaintiffs have not established that “there is no genuine issue as to any
material fact” and that they are entitled “to judgment as a matter of law on
the issues expressly set out” for a summary judgment award of damages.
TEX. R. CIV. P. 166a(c). This requires reversal of the damages award.
Because Plaintiffs’ damages are not liquidated, this also requires reversal of
the entire summary judgment. TEX. R. APP. P. 44.1(b); see also Profitlive, at
262 (“we reverse the entire summary judgment”), and above, at 19-20
(discussing additional cases).
9
Even assuming that Plaintiffs had provided competent evidence of the amount of
damages, this is, at the very least, a case where “appellees’ own summary judgment
evidence raises a material issue of fact regarding the amount of their damages.”
Profitlive, 248 S.W.3d at 262.
27
2. Because DTPA additional damages cannot be proven as a
matter of law, the summary judgment must be reversed.
The DTPA does not mandate any specific amount as additional
damages. See TEX. BUS. & COM. CODE §17.50(b)(1). “The amount of
additional damages to award after the finding [of] a violation of the DTPA is
within the discretion of the trier of fact; as such, they are unliquidated
damages.” Henry S. Miller, 813 S.W.2d at 634.
Because DTPA additional damages are discretionary, they cannot be
proven as a matter of law. Compare Badall, 2009 WL 857995 at *2
(nonpecuniary losses are not proper subjects for summary judgment).
The issue of DTPA additional damages cannot be separated from the
rest of the case. See above, at 20. As a result, the trial court’s error in
granting a summary judgment that awarded such damages requires a remand
of the case on all issues. Id.
The trial court also erred by awarding a sum of economic and
additional damages that equaled four times the economic damages. C.R. 415.
The statutory language that allows a trier of fact to “award not more than
three times the amount of economic damages” means that the sum of
economic and additional damages may not equal more than three times the
economic damages. TEX. BUS. & COM. CODE §17.50(b)(1); see also Jim
Walter Homes Inc. v. Valencia, 690 S.W.2d 239, 241 (Tex. 1985)
28
(construing the phrase “award not more than three times the amount of
actual damages” in former version of statute). If the Court does not reverse
the additional damages award, the Court must still reform the judgment to
reduce that award by $22,707.43 to $45,414.86.
C. Plaintiffs did not establish a right to summary judgment on any
of their 16 causes of action.
Even if nothing mentioned so far were to require reversal, Plaintiffs
nonetheless failed to show that “there is no genuine issue as to any material
fact” and prove “as a matter of law” their causes of action. TEX. R. CIV. P
166a(c).
1. Deceptive Trade Practices Act
The award of additional damages suggests that the ultimate basis for
the trial court’s summary judgment was Plaintiffs’ DTPA claim. See C.R.
415.
Plaintiffs’ motion for summary judgment did not identify any
particular provision of the DTPA. See C.R. 184-190. The motion only
mentions the DTPA in connection with a list (quoted above, at 14) of causes
of action on which Plaintiffs claimed a right to summary judgment. C.R.
188. That mention consisted of four words: “violations of the DTPA[.]” Id.
Plaintiffs’ petition was no more specific, offering only general
references to Business and Commerce Code §17.46 (the DTPA’s “laundry
29
list” provision) and general allegations of unconscionability, breach of
implied warranty, and breach of express warranty. C.R. 9-10.
A summary judgment cannot be sustained on a violation of §17.46. A
consumer may maintain an action for a §17.46 violation only if the
defendant’s act or practice is “specifically enumerated in a subdivision of”
§17.46(b). TEX. BUS. & COM. CODE §17.50(a). Plaintiffs presented no
summary judgment evidence (much less conclusive evidence) to support a
violation of any of the 27 subdivisions of §17.46(b). 10
A consumer’s suit on a §17.46 violation also requires proof of
reliance. Id. §17.50(a)(1)(B). Plaintiffs presented no summary judgment
evidence of reliance, let alone conclusive evidence of reliance.
Conclusory statements are not competent evidence. See, e.g., In re
Whataburger Restaurants L.P., 429 S.W.3d 597, 599 (Tex. 2014). The
following statement in Garcia’s affidavit therefore is no evidence of
reliance:
Had either the nature or extent of the prior frame/unibody
damage been disclosed to us prior to purchase, we would
not have purchased the vehicle.
10
An appellant need not “detail the relevant parts of the record” to address “a complete
absence of evidence on critical elements” of a claim. City of Arlington v. State Farm
Lloyds, 145 S.W.3d 165, 167 (Tex. 2004).
30
C.R. 193. “Generally, such testimony about what a person ‘would have’
done or what ‘would have’ happened under different circumstances is
speculative and conclusory in the absence of some evidentiary support.”
Whataburger, at 599. Even with evidentiary support, when such testimony
comes from an interested witness (such as Garcia), the testimony will not
support a summary judgment because such state-of-mind testimony is not of
a type that “could have been readily controverted.” TEX. R. CIV. P. 166a(c).
Moreover, Brown was the actual buyer of the 528i. C.R. 196 (sale
contract). Garcia could not testify about Brown’s reliance, even though
Brown had granted Garcia a power of attorney. See above, at 26 fn. 8
(discussing incompetency of such testimony). The lack of evidence of
Brown’s reliance also precludes summary judgment.
DTPA unconscionability requires “an act or practice, which to a
consumer’s detriment, takes advantage of the lack of knowledge, ability,
experience, or capacity of the consumer to a grossly unfair degree.” TEX.
BUS. & COM. CODE §17.45(5). Plaintiffs presented no summary judgment
evidence (let alone conclusive evidence) that Coastal Motorcars took
advantage, to Plaintiffs’ detriment, of any lack of knowledge, ability,
experience or capacity of either of them – or that Coastal Motorcars did so to
a grossly unfair degree. Moreover, the conflicting evidence of the vehicle’s
31
value, see above, at 23-27, raises a fact issue as to the “grossly unfair
degree” component of the claim.
Plaintiffs pleaded that the 528i breached an implied warranty of
merchantability because “it would not pass without objection in the trade”
and “was not fit for the ordinary purpose for which such vehicles are used.”
C.R. 9-10. Plaintiffs presented no summary judgment evidence (let alone
conclusive evidence) that the vehicle was not merchantable in those ways, or
in any other way, at the time of the vehicle’s sale. See TEX. BUS. & COM.
CODE §2.314(b) (listing six requirements of merchantable goods). Although
plaintiff Garcia’s affidavit asserts that “[s]hortly after purchase, I began to
experience problems[,]” C.R. 192, she does not identify the problems, show
that they resulted from pre-sale damage, or provide any basis for concluding
that the problems rendered the vehicle unmerchantable.
Plaintiffs asserted a breach of an implied warranty to perform repair
work in a good and workmanlike manner. Under that warranty, “[w]e define
good and workmanlike as that quality of work performed by one who has the
knowledge, training, or experience necessary for the successful practice of a
trade or occupation and performed in a manner generally considered
proficient by those capable of judging such work.” Melody Home Mfg. Co.
v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987). Plaintiffs, who offered no
32
evidence of the “quality” or “manner” of the repair work, presented no
summary judgment evidence (much less conclusive evidence) that this
warranty was breached.
Garcia’s affidavit did state the following:
BMWCC represented that the service work would be
performed in a good and workmanlike manner and was
obligated to repair the vehicle in a good and workmanlike
manner; this has not occurred as some of the problems
continue to persist.
C.R. 192. Because this statement is “unsupported by underlying facts,” it is
conclusory and therefore “not competent summary judgment evidence.”
Badall, 2009 WL 857995 at *2. Moreover, Garcia’s affidavit applies the
wrong standard by treating the warranty as one focused on results instead of
the manner of the work. Melody Home, at 354 (explaining the difference).
Regardless, breach of any repair warranty could not have been the
basis for the trial court’s judgment. Plaintiffs offered, belatedly at the
summary judgment hearing, a damages model that made no reference to
repairs. See above, at 17.
An essential element of a breach of express warranty claim is that the
alleged warranty is “part of the basis of the bargain.” TEX. BUS. & COM.
CODE §2.313(a)(1-3). Plaintiffs did not present evidence (much less
conclusive evidence) of any alleged warranty that was both “part of the basis
33
of the bargain” and breached. Underscoring that is the absence of any
testimony from Brown, the 528i’s actual buyer. See C.R. 196 (sale contract).
Moreover, the basis-of-the-bargain requirement “loosely reflects the
common-law express warranty requirement of reliance.” Henry Schein Inc.
v. Stromboe, 102 S.W.3d 675, 686 fn. 23 (Tex. 2003) (quot. omitted). As
discussed above, at 30-31, Plaintiffs did not conclusively establish reliance.
A consumer’s DTPA claim also requires proof of producing cause.
TEX. BUS. & COM. CODE §17.50(a). A producing cause is “a substantial
factor in bringing about an injury, and without which the injury would not
have occurred[.]” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.
2007). Plaintiffs presented no summary judgment evidence (let alone
conclusive evidence) of producing cause.
A significant omission in the summary judgment record is the lack of
evidence to link the problems that Plaintiffs encountered post-sale to the pre-
sale condition of the 528i – or to link those problems to any specific DTPA
violations. For example, although Garcia’s affidavit speaks of “prior
frame/unibody damage,” C.R. 193, her affidavit provides no further details
about the extent of that damage or how that damage was related to any
problems that she later encountered.
34
2. Breach of contract
“[B]reach of contract and breach of warranty are not the same cause
of action.” Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576
(Tex. 1991). “When a party fails to deliver as promised, a breach of contract
occurs.” Chilton Ins. Co. v. Pate & Pate Enterps. Inc., 930 S.W.2d 877, 890
(Tex. App. – San Antonio 1996, writ den.). “Conversely, when a seller
delivers non-conforming goods, it is a breach of warranty.” Id. “Indeed, the
whole purpose of the law of warranty is to determine what it is that the seller
has in essence agreed to sell.” Southwestern Bell, at 576 (quot. omitted). The
distinction “is crucial because each is a different cause of action with
different remedies.” Chilton, at 890; see also Southwestern Bell, at 576.
Plaintiffs did not allege that Coastal Motorcars failed to deliver the
528i. They acknowledged delivery. C.R. 192 (Garcia aff.). They have only a
claim for breach of warranty, and as discussed above, at 32-34, they have
not established a right to summary judgment on a breach of warranty claim.
To any extent Plaintiffs assert a breach of contract in connection with
services, as opposed to the purchase, they still did not show a right to
summary judgment. “The elements of a breach of contract action are: (1) the
existence of a valid contract; (2) performance or tendered performance by
the plaintiff; (3) breach by the defendant; and (4) damages sustained by the
35
plaintiff as a result of the breach.” Tex. Dept. of Transp. v. Crockett, 257
S.W.3d 412, 416 (Tex. App. – Corpus Christi 2008, pet. den.). Plaintiffs did
not present any summary judgment evidence (let alone conclusive evidence)
of any breach in connection with services. Plaintiffs presented only a
conclusory statement that repair work was not adequately performed. See
above, at 32-33. Plaintiffs also did not present any summary judgment
evidence (let alone conclusive evidence) of damages sustained as a result of
any such breach. Their damage model, belatedly presented at the summary
judgment hearing, made no reference to repairs. See R.R. 2:5-6; see also
above, at 17.
3. Negligence and gross negligence
“Negligence actions in Texas require a legal duty owed by one person
to another, a breach of that duty, and damages proximately caused by the
breach.” Nabors Drilling U.S.A. Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.
2009). Where a duty exists, a person must “act as a reasonable prudent
person would act under the same or similar circumstances regarding any
reasonably foreseeable risk.” Colvin v. Red Steel Co., 682 S.W.2d 243, 245
(Tex. 1984).
Texas does not have a statutory disclosure requirement for pre-sale
repairs to vehicles. As the U.S. Supreme Court has recognized, “reasonable
36
people may disagree about the value of a full disclosure requirement” that
would apply “regardless of its actual impact on the value of the car.” BMW
of N. Amer. Inc. v. Gore, 517 U.S. 559, 570 (1996). The diversity of opinion
is shown in other states’ statutes that set various thresholds based on the cost
of the repairs, on the ratio of the repair costs to the vehicle’s full value, or on
combinations of those measures. See id. at 569 fn. 13.
Plaintiffs did not provide any detail about the prior wreck, the damage
sustained in that wreck, the extent of damage that remained at the time of
sale, or the effect on the use or value of the 528i. See above, at 25-26, 32, 34.
Plaintiffs therefore have not shown the absence of a material fact issue on
breach of duty because they have not shown that reasonable persons would
all agree about the necessity of and extent of disclosure. Nor did Plaintiffs
present summary judgment evidence (let alone conclusive evidence) to
show, in any other manner, breach of a duty to use ordinary care.
Moreover, just as Plaintiffs failed to show entitlement to summary
judgment on producing cause in connection with their DTPA claim, see
above, at 34, for the same reasons, see id., they failed to do so on the
proximate cause element of a negligence claim. As with producing cause, a
necessary component of proximate cause is that the defendant’s act or
37
omission was a substantial factor in bringing about an injury that otherwise
would not have occurred. Ford, 242 S.W.3d at 45 fn. 47.
Because Plaintiffs did not show a right to summary judgment on their
negligence claim, they also did not show a right to summary judgment on
their gross negligence claim. Outside the worker’s compensation context, “a
finding of ordinary negligence is prerequisite to a finding of gross
negligence.” Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App. –
Houston [14th Dist.] 1994, writ den.).
4. Fraud, fraud by nondisclosure, and negligent
misrepresentation
The elements of fraud are: “(1) that 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 positive assertion; (4) the speaker made the
representation with the intent that the other party should act upon it; (5) the
party acted in reliance on the representation; and (6) the party thereby
suffered injury.” In re FirstMerit Bank N.A., 52 S.W.3d 749, 758 (Tex.
2001).
The elements of fraud by nondisclosure are: “(1) the defendant failed
to disclose facts to the plaintiff, (2) the defendant had a duty to disclose
those facts, (3) the facts were material, (4) the defendant knew the plaintiff
38
was ignorant of the facts and the plaintiff did not have an equal opportunity
to discover the facts, (5) the defendant was deliberately silent when it had a
duty to speak, (6) by failing to disclose the facts, the defendant intended to
induce the plaintiff to take some action or refrain from acting, (7) the
plaintiff relied on the defendant’s nondisclosure, and (8) the plaintiff was
injured as a result of acting without that knowledge.” Horizon Shipbldg. Inc.
v. BLyn II Holding L.L.C., 324 S.W.3d 840, 850 (Tex. App. – Houston [14th
Dist.] 2010, no pet.).
The elements of negligent misrepresentation are: “(1) the
representation is made by a defendant in the course of his business, or in a
transaction in which he has a pecuniary interest; (2) the defendant supplies
‘false information’ for the guidance of others in their business; (3) the
defendant did not exercise reasonable care or competence in obtaining or
communicating the information; and (4) the plaintiff suffers pecuniary loss
by justifiably relying on the representation.” Fed. Land Bank Assn. v.
Sloane, 825 S.W.2d 439, 442 (Tex. 1991).
Reliance and causation are elements of each of these claims. As noted
above, Plaintiffs did not establish reliance and producing cause in the
context of their DTPA cause of action. See above, at 30-31 (reliance), 34
(producing cause). Plaintiffs likewise presented no evidence (let alone
39
conclusive evidence) of reliance and causation for the purpose of their fraud,
fraud-by-nondisclosure, and negligent-misrepresentation causes of action.
These causes of action can only be sustained if a misrepresentation or
undisclosed matter is material. See, e.g., Jones v. Zearfoss, _ S.W.3d _, No.
4-14-83-CV, 2015 WL 101592, *2 (Tex. App. – San Antonio 2015, no pet.
hist.). Plaintiffs neither presented summary judgment evidence of materiality
nor established the absence of a fact issue on materiality. For example, even
though Plaintiffs say there was “prior frame/unibody damage” and a “prior
wreck,” C.R. 193 (quoted), they provided no details about the prior wreck,
the damage sustained in that wreck, the extent of damage that remained at
the time of sale, or the effect on the use or value of the vehicle. Without that
information, Plaintiffs could not show that reasonable persons would all
agree about the materiality of any representation or nondisclosure. See
above, at 36-37 (noting differences of opinion as to threshold for mandatory
disclosure).
These causes of action also include culpability requirements. Fraud
requires knowledge or recklessness about a statement and an intent that
another rely on the statement. See above, at 38. Fraud by nondisclosure
requires deliberate silence and an intent to induce another to take action or to
refrain from acting. See above, at 38-39. Negligent misrepresentation
40
requires a lack of reasonable care or competence. See above, at 39. Plaintiffs
neither presented summary judgment evidence to establish those elements,
nor did they establish the absence of a fact issue on those elements.
Plaintiffs may cite a heavily redacted copy of Coastal Motorcars’
interrogatory responses. 11 The unredacted portion of one response says, “I
knew of damage to the vehicle but not how the damages occurred.” C.R.
387. That response, however, does not identify what damage or the severity
of any damage – and raises a fact issue about whether Coastal Motorcars
knew the cause of any damage. Nor does that response establish that any
misrepresentation about or failure to disclose that damage satisfied the
necessary culpability requirements.
“Because this is an appeal from a summary judgment, we are required
to indulge every reasonable inference in favor of the defendant-nonmovant
and resolve all doubts in his favor.” Rizkallah v. Conner, 952 S.W.2d 580,
589 (Tex. App. – Houston [1st Dist.] 1997, no writ). Indulging any
reasonable inference in favor of Coastal Motorcars, one could infer that any
nondisclosure was unintentional or not negligent. See, e.g., id. (evidence
permitted inference that defendant “was merely an incompetent mechanic”
11
Plaintiffs attached heavily redacted interrogatory responses to their motion for
summary judgment. C.R. 386-388. Some unredacted portions started mid-sentence. Id.
41
and did not act knowingly); see also above, at 36-37 (discussing
disagreement about what extent of damage should require disclosure).
5. Unconscionability
Unconscionability is not a stand-alone cause of action. See Currey v.
Lone Star Steel Co., 676 S.W.2d 205, 213 (Tex. App. – Fort Worth 1984, no
writ). The trial court could not, without error, grant summary judgment on a
cause of action that does not exist.
Plaintiffs’ petition alleged that “there was a gross disparity between
the value received by Plaintiffs and consideration paid by Plaintiffs; for this
reason, this transaction was unconscionable.” C.R. 13. As discussed above in
the context of damages, Plaintiffs’ summary judgment evidence did not
show the absence of a genuine issue of material fact concerning any
disparity, let alone a gross disparity. See above, at 23-27. For example, the
lack of evidence of the severity of any problems encountered, of a link
between those problems and the pre-sale condition of the 528i, and the effect
of those problems on the 528i’s value preclude summary judgment on this
claim. See above, at 25-26, 32, 34.
6. Conversion
“The elements of conversion are: (1) the plaintiff owned, had legal
possession of, or was entitled to possession of the property; (2) the defendant
42
assumed and exercised dominion and control over the property in an
unlawful and unauthorized manner, to the exclusion of and inconsistent with
the plaintiff’s rights; and (3) the defendant refused the plaintiff’s demand for
the return of the property.” Crockett, 257 S.W.3d at 416. Plaintiffs did not
present any summary judgment evidence (let alone conclusive evidence) of
either of the first two elements.
Plaintiffs allege that Coastal Motorcars converted “the excess value
paid” for the 528i. C.R. 13. This, however, is a claim for “alleged
indebtedness that may be discharged by the payment of money generally.”
Rente Co. v. Truckers Express Inc., 116 S.W.3d 326, 332 (Tex. App. –
Houston [14th Dist.] 2003, no pet.). Such a claim cannot be sustained on a
conversion theory. Id.
Where a plaintiff alleges conversion of money, the money must have
been “(1) delivered for safekeeping; (2) intended to be kept segregated; (3)
substantially in the form in which it is received or an intact fund; and (4) not
the subject of a title claim by the keeper.” Edlund v. Bounds, 842 S.W.2d
719, 727 (Tex. App. – Dallas 1992, writ den.). Plaintiffs neither alleged nor
presented summary judgment evidence (let alone conclusive evidence) of
any of those four requirements. The sale documents contain no terms that
would satisfy those requirements. See C.R. 196-204.
43
Moreover, Brown took a loan to purchase the 528i. See above, at 3.
Plaintiffs have not shown that they paid the loan in full, let alone what
portion of the loan they have paid. Plaintiffs cannot maintain an action for
conversion of funds that never left their possession. Plaintiffs have not
shown a right to the specific amount of $22,707.43 on a conversion theory.
C.R. 415 (summary judgment order).
For any of those reasons, the summary judgment cannot be sustained
on a conversion cause of action.
7. Quantum meruit, quasi contract, assumpsit, detrimental
reliance, promissory estoppel, unjust enrichment, and
money had and received
Plaintiffs’ motion for summary judgment also alleged, without
specific grounds, a right to summary judgment on their “quantum meruit,
quasi contract, assumpsit, detrimental reliance, promissory estoppel, unjust
enrichment, and money had and received” claims. C.R. 188. Plaintiffs’
petition described the first six theories as means “to collect the reasonable
value of the excess value paid by Plaintiffs to Defendant as well as the value
of Plaintiffs’ out of pocket expenses … .” C.R. 14. An initial problem,
precluding summary judgment, is that Plaintiffs have not shown the absence
of a material fact issue as to the “excess value,” see above, at 23-27, and
44
their belatedly-offered damages model made no references to any other “out
of pocket expenses.” See above, at 17; see also R.R. 2:5-6.
A second problem is that these are all equitable theories. “When a
valid agreement already addresses the matter, recovery under an equitable
theory is generally inconsistent with the express agreement.” Fortune
Production Co. v. Conoco Inc., 52 S.W.3d 671, 684 (Tex. 2000); see also,
e.g., Chilton, 930 S.W.2d at 889 (quantum meruit). The sale contract
identifies each side’s obligations. C.R. 196-204. Plaintiffs are therefore
foreclosed from relying on equitable theories, and a summary judgment
awarding relief on those theories is error.
“To recover under the doctrine of quantum meruit, a plaintiff must
establish that: 1) valuable services and/or materials were furnished, 2) to the
party sought to be charged, 3) which were accepted by the party sought to be
charged, and 4) under such circumstances as reasonably notified the
recipient that the plaintiff, in performing, expected to be paid by the
recipient.” Heldenfels Bros. Inc. v. City of Corpus Christi, 832 S.W.2d 39,
41 (Tex. 1992). Plaintiffs did not present summary judgment evidence (let
alone conclusive evidence) to support any of those four elements. The
evidence contradicts at least the first three elements because Coastal
45
Motorcars provided the 528i to Brown, not the other way around. C.R. 196-
204 (sale documents).
“Unjust enrichment claims are based on quasi-contract.” Fortune, at
683. “Generally speaking, when a valid, express contract covers the subject
matter of the parties’ dispute, there can be no recovery under a quasi-
contract theory,” id. at 684, and no exception is alleged or proven here. The
sale agreement, C.R. 196, precludes any quasi-contract or unjust enrichment
claim.
Moreover, a quasi-contract “is not a contract at all but an obligation
imposed by law to do justice even though it is clear that no promise was ever
made or intended.” Fortune, at 684. 12 Plaintiffs’ motion for summary
judgment neither alleged nor proved, as a matter of law, what obligation the
law should impose. See C.R. 184-190. Plaintiffs presented no summary
judgment evidence (let alone conclusive evidence) to support enforcement of
an implied obligation on any terms that were different from those in the sale
agreement.
Even if an unjust enrichment claim were available, Plaintiffs have not
established the claim as a matter of law. “A party may recover under the
12
See also Amoco Production Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App. – El Paso
1997, no writ): “The unjust enrichment doctrine applies the principles of restitution to
disputes which are not governed by a contract between the contending parties.” (Emph.
added.)
46
unjust enrichment theory when one person has obtained a benefit from
another by fraud, duress, or the taking of an undue advantage.” Heldenfels,
at 41. As discussed above in connection with their DTPA and fraud claims,
Plaintiffs have not established the lack of a material fact issue as to fraud or
the taking of an undue advantage. See above, at 31-32 (DTPA), 38-42
(fraud). Plaintiffs’ own evidence raised a fact issue on a lack of duress, as
the stated reason for entering the transaction was not duress but to “have the
same automobile but with less miles.” C.R. 192.
“The implied contract action for money had and received is a cause of
action for debt not evidenced by a writing.” Amoco, at 164. Because the
parties had a written contract for sale of the 528i, C.R. 196, Plaintiffs cannot
prevail on this theory.
Moreover, a claim for money had and received requires that “the
defendant obtains money which in equity and good conscience belongs to
the plaintiff.” Amoco, at 164. As with their conversion claim, Plaintiffs have
not established what amount of money they have actually paid. See above, at
44. Nor did they present summary judgment evidence (let alone conclusive
evidence) of what portion of the amount paid should, in equity and good
conscience, be returned to them. For example, a jury could reach different
conclusions about the 528i’s value, even if the jury only considered
47
Plaintiffs’ summary judgment evidence. See above, at 23-27. Plaintiffs
therefore have not shown a right to summary judgment on their money-had-
and-received claim.
Plaintiffs petition and summary judgment motion merely allege
“assumpsit” without any further elaboration. C.R. 14, 188. Assumpsit is
“[a]n express or implied promise, not under seal, by which one person
undertakes to do some act or pay something to another” or “[a] common-law
action for breach of such a promise or for breach of a contract[.]” BLACK’S
LAW DICTIONARY (10th ed.), at 148. To any extent Plaintiffs purport to rely
on an express promise, the same reasons that made summary judgment
inappropriate on their DTPA breach-of-warranty and their breach-of-
contract theories make summary judgment inappropriate on an assumpsit
theory. See above, at 32-34 (breach of warranty), 35-36 (breach of contract).
To any extent Plaintiffs purport to rely on an implied promise, the same
reasons that made summary judgment inappropriate on their quantum-
meruit, quasi-contract, unjust-enrichment, and money-had-and-received
theories also make summary judgment inappropriate on an assumpsit theory.
Courts “evaluate a detrimental reliance claim under the same criteria
as a promissory estoppel claim. It is not a distinct cause of action.” Garcia v.
Lucero, 366 S.W.3d 275, 281 (Tex. App. – El Paso 2012, no pet.).
48
“[P]romissory estoppel becomes available to a claimant only in the
absence of a valid and enforceable contract.” Doctors Hosp. 1997 L.P. v.
Sambuca Houston L.P., 154 S.W.3d 634, 636 (Tex. App. – Houston [14th
Dist.] 2004, pet. abated). The sale contract, C.R. 196, precludes any
promissory estoppel claim.
Even setting that problem aside, Plaintiffs have not established a right
to summary judgment on a promissory estoppel claim. “The elements of
promissory estoppel are: (1) a promise; (2) foreseeability of reliance thereon
by the promisor; and (3) substantial reliance by the promisee to her
detriment.” Garcia, at 280. As discussed above in connection with the
DTPA claim, Plaintiffs have not shown the absence of a material fact issue
on reliance. See above, at 30-31.
D. Plaintiffs did not establish a right to summary judgment on
liability for DTPA additional damages.
An award of DTPA additional damages requires that a defendant
acted “knowingly” or “intentionally,” as those terms are defined in the
DTPA. TEX. BUS. & COM. CODE §17.45(9, 13), 17.50(b)(1). Both require
“actual awareness” of the falsity, deception, or unfairness of an act or
practice or “actual awareness” of a breach of warranty. Id. §17.45(9, 13).
49
As discussed above in connection with the fraud claim, the summary
judgment record does not show the absence of a fact issue and a right to
judgment as a matter of law on any such culpability element. See above, at
40-42. For example, the evidence does not establish that Coastal Motorcars
had actual awareness of the extent or cause of any damage to the 528i. See
id. Moreover, a court must “indulge every reasonable inference” in
opposition to the summary judgment, Rizkallah, at 589, and without
conclusive evidence to the contrary, a court must conclude that the record
permits an inference that the conduct was not knowing or intentional. Id.
(evidence permitted reasonable inference that mechanic was merely
“incompetent” as opposed to a knowing violator).
E. Unless Plaintiffs established a right to summary judgment on a
theory that permits recovery of attorney fees, the award of attorney
fees is error.
Plaintiffs’ summary judgment motion not only failed to identify what
liability theories entitled them to attorney fees, they failed to request any
attorney fees at all in the motion. See above, at 21. That alone is fatal to the
attorney fee award.
Even if any of Plaintiffs’ liability theories could be sustained,
Plaintiffs may not recover attorney fees unless the theory is one that will
allow an attorney fee award. DTPA, breach of contract, and quantum meruit
50
claims can support an award of attorney fees. See TEX. BUS. & COM. CODE
§17.50(d) (DTPA); TEX. CIV. PRAC. & REM. CODE §38.001(1-3, 8) (attorney
fees for claims based on services, labor, material, and contracts). Plaintiffs
identified the two corresponding statutes in their petition and no other statute
to authorize an award of attorney fees. C.R. 17. The trial court’s award of
attorney fees cannot stand on any other legal theory that Plaintiffs asserted.
Claims based on “implied or quasi-contract” are not eligible for
attorney fee awards under the statutory provision (§38.001(8)) that permits
attorney fees for contract claims. Amoco, at 165-166. Although the Court has
allowed attorney fees for promissory estoppel claims under that provision,
the more sound and correct rule is that a promissory estoppel claim is
inconsistent with recovery on a contract and therefore will not support an
award of attorney fees. Doctors Hosp., at 639; contrast Corpus Christi Day
Cruise L.L.C. v. Christus Spohn Health Sys. Corp., 398 S.W.3d 303, 314-
315 (Tex. App. – Corpus Christi 2012, pet. den.).
III. The trial court abused its discretion by not setting the summary
judgment aside.
A. Due process requires setting aside the summary judgment.
“Absence of actual or constructive notice of the submission of a
summary judgment motion violates a party’s due process rights under the
Fourteenth Amendment to the United States Constitution.” Garcia v.
51
Escobar, No. 13-13-268-CV, 2014 WL 1514288, *3 (Tex. App. – Corpus
Christi Apr. 15, 2014, pet. den.). Due process requires that notice be
“reasonably calculated, under the circumstances, to apprise interested parties
of the pendency of the action and afford them the opportunity to present
their objections.” Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 84-85
(1988).
Uncontroverted evidence shows that Coastal Motorcars did not have
actual notice of Plaintiffs’ motion for summary judgment or the hearing
date. Coastal Motorcars submitted Allen’s affidavit that denied notice and
explained that the post-office box was a former address that had been
discontinued several months earlier. C.R. 431-432. Coastal Motorcars
submitted Postal Service tracking records showing that the package
containing the motion and notice of hearing was not delivered to the post-
office box. C.R. 436; see also above, at 1-2. The trial court was bound to
accept this evidence as true unless Plaintiffs requested an evidentiary
hearing. Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App. – Austin 2001, no
pet.). 13
13
“On a motion for new trial, the trial court is bound to accept as true the affidavits of the
movant, unless the opponent requests an evidentiary hearing.” Smith, at 818.
52
Plaintiffs’ response included a copy of the envelope used for service.
C.R. 494. The envelope, which had markings showing its return to Plaintiffs’
counsel, see above, at 2, only reinforced that actual notice was not achieved.
Nor did Plaintiffs obtain constructive notice. In responding to the
motion for new trial, Plaintiffs argued that they had constructive notice
because Coastal Motorcars “was negligent in not complying with TEX. CIV.
PRAC. & REM. CODE §30.015(d)[,]” C.R. 475, which states:
If the party’s address changes during the course of a civil
action, the party or the party’s attorney must provide the
clerk of the court with written notice of the party’s new
address.
The Texas Supreme Court has explained, however, that a failure to “keep the
court and parties apprised of [a] correct and current address” is not governed
by a negligence standard. Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex.
2005). “[E]ven assuming there is such a duty,” the Texas Supreme Court
explained, “unless noncompliance was intentional rather than a mistake, due
process requires some lesser sanction than trial without notice or an
opportunity to be heard.” Id. 14
14
Because this rule “turns on an actor’s state of mind[, its] application may require a
different result when the actor is not a lawyer.” Wheeler v. Green, 157 S.W.3d 439, 444
(Tex. 2005) (withdrawal of deemed admissions and leave for late summary-judgment
response).
53
Nothing in the record shows that Coastal Motorcars intentionally
failed to comply. Although §30.015 appears to require each party to provide
a “current residence or business address” to the clerk when filing its “initial
pleading,” TEX. CIV. PRAC. & REM. CODE §30.015(a, c), that statute – which
does not require notice to other parties – is often overlooked. 15 During the
time that Coastal Motorcars was represented by counsel, Coastal Motorcars
was entitled to rely on Stewart for compliance with the requirement. Nothing
in the record indicates that Stewart’s failure to do so was intentional or that
any failure should be attributed to the client. 16 Coastal Motorcars
discontinued the post-office box address three to four months before Stewart
moved to withdraw from the case. See above, at 1-2, 4.
Coastal Motorcars’ compliance with another notice-of-address
requirement indicates that Coastal Motorcars did not intend to avoid service
of legal documents generally, let alone in Plaintiffs’ case. After Coastal
Motorcars sold its Corpus Christi BMW dealership, it notified the Secretary
of State of a new registered office. C.R. 438; see also TEX. BUS. ORG. CODE
15
The statute originally required that the clerk keep the address confidential. TEX. ACTS
(75th Leg.), Ch. 887 (1997).
16
For example, although counsel conducts discovery for his or her client, “a party should
not be punished for counsel’s conduct in which it is not implicated apart from having
entrusted to counsel its legal representation.” TransAm. Natural Gas Corp. v. Powell, 811
S.W.2d 913, 917 (Tex. 1991).
54
§5.202 (requiring notice of such change). Coastal Motorcars did that in
March 2013, well over a year before Plaintiffs filed their motion for
summary judgment. C.R. 184, 438.
Plaintiffs rely on Stewart’s representation that the post-office box was
Coastal Motorcars’ last known address. C.R. 468. Stewart’s representation
cannot be imputed to Coastal Motorcars. When Stewart filed a contested
motion to withdraw, he was acting adversely to Coastal Motorcars. While an
attorney’s statements for a client may sometimes be treated as the client’s
statements, see, e.g., Bay Area Healthcare Group Ltd. v. McShane, 239
S.W.3d 231, 235 (Tex. 2007) (statements in superseded pleadings), the same
is not true when the attorney is taking action against a client by filing a
contested motion to withdraw.
Nor does the record establish that Coastal Motorcars intentionally
used Stewart’s error to avoid service of documents – or that Coastal
Motorcars even knew of the error before summary judgment was rendered.
Stewart’s motion to withdraw was hastily presented. He filed the
motion only one day before it was heard. See above, at 1, 5. Before moving
to withdraw, Stewart had a professional duty that included “giving
reasonable notice to the client” and “allowing time for employment of other
55
counsel[.]” TEX. DISC. R. PROF. CONDUCT 1.15(d). Nothing in the record
indicates that Stewart did so before withdrawing. 17
Although Rule of Civil Procedure 10 required delivery of the motion
“in person or mailed to the party’s last known address by both certified and
regular first class mail[,]” TEX. R. CIV. P. 10, Stewart provided no proof of
delivery. Nothing in the record indicates how or when the motion was
delivered. Compare Tactical Air Defense Servs. Inc. v. Searock, 398 S.W.3d
341, 345-347 (Tex. App. – Dallas 2013, no pet.) (reversing post-answer
default judgment, noting lack of evidence that client received motion to
withdraw).
Stewart did not certify service of the motion on Coastal Motorcars.
C.R. 178 (certificate of service); compare Tactical Air, at 345 (certificate of
service did not show that motion to withdraw was properly sent). At the
hearing on the motion, Stewart said that he “sent copies of the motion” and
“visited with [Allen] on the telephone … .” Supp. R.R. 1:5. Thus, if Stewart
attempted to comply with Rule 10’s delivery requirement, he did so using
17
By contrast, Allen testified, by affidavit, that Coastal Motorcars was “not given
sufficient time to address the withdrawal or possibly seek other counsel.” C.R. 431.
56
the “last known address” that he provided – a post-office box that had been
closed for at least three months. See above, at 1-2, 4. 18
In permitting Stewart’s withdrawal, the trial court instructed
Plaintiffs’ counsel to serve the withdrawal order and a mediation order on
Coastal Motorcars. Supp. R.R. 1:6. Plaintiffs’ counsel responded that he
would do so. Supp. R.R. 1:7. Instead, it appears that Plaintiffs’ counsel
prepared a motion for summary judgment to disadvantage a then-
unrepresented defendant.
When the Postal Service returned the service copy of the motion for
summary judgment and notice of hearing, C.R. 494 (envelope), two weeks
before the hearing, C.R. 436 (tracking record), Plaintiffs could have
contacted Stewart for alternative contact information, could have served
Coastal Motorcars by serving its registered agent, 19 or sought an order
permitting service “by such other manner as the court in its discretion may
direct.” TEX. R. CIV. P. 21a(a)(2). Plaintiffs instead went forward with a
hearing, with their counsel telling the trial court:
18
Plaintiffs argued, to the trial court, that Coastal Motorcars’ motion for new trial
admitted receipt of the motion to withdraw. C.R. 475. Plaintiffs, however, did not identify
any particular statement as the admission. No such admission exists.
19
“The registered agent … is an agent of the entity on whom may be served any process,
notice, or demand required or permitted by law to be served on the entity[.]” TEX. BUS.
ORG. CODE §5.201(b).
57
However, I’ve not heard from them. I sent notice of this
motion and of this hearing to the Defendant at the
address provided by Mr. Stewart. No response is
forthcoming. It’s ripe for a summary judgment … .
R.R. 2:4. Plaintiffs’ counsel did not mention that notice was not received.
The record does not show the presence of notice “reasonably
calculated, under the circumstances” to notify Coastal Motorcars of the
motion for summary judgment and its setting for hearing. Peralta, at 84-85.
Nor does the record show that Coastal Motorcars intentionally failed to
provide information for service of documents. As discussed above, the
record contradicts such an assertion. If these circumstances permit action
adverse to Coastal Motorcars, “due process requires some lesser sanction
than” a summary judgment “without notice or an opportunity to be heard.”
Mathis, at 746 (setting aside post-answer default judgment because
defendant, who did not provide updated address, did not receive notice of
trial setting). 20
20
While Plaintiffs rely on Civil Practice and Remedies Code §30.015 as establishing a
duty to provide a current address, C.R. 475, that statute’s only enforcement provision
provides that “the trial court may assess a fine of not more than $50.” TEX. CIV. PRAC. &
REM. CODE §30.015(e). The statute contains no text that authorizes a default summary
judgment or a post-answer default judgment as a penalty for a failure to comply.
58
The trial court therefore abused its discretion by not setting aside the
summary judgment after Coastal Motorcars’ made its motion for new trial. 21
B. The trial court also abused its discretion by not setting aside the
summary judgment for excusable accident or mistake.
Due process requires setting aside the summary judgment because
Coastal Motorcars had neither actual nor constructive notice. But even if the
Court were to accept Plaintiffs’ constructive notice argument, the trial court
abused its discretion by not setting aside the summary judgment because of
excusable accident or mistake, as requested in Coastal Motorcars’ motion for
new trial.
1. The Court may have to decide whether to apply the
three-part Craddock test or the two-part Carpenter test.
Coastal Motorcars asserted a right for new trial under the three-factor
test in Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124, 126 (Tex.
1939); see also C.R. 424 (mot.). The Texas Supreme Court has described the
test as follows:
21
“The trial court’s decision on a new trial motion is subject to review for abuse of
discretion.” Smith, 53 S.W.3d at 817. A trial court’s discretion is limited to resolving
reasonably and properly disputed fact issues, In re Dillard Dept. Stores Inc., 198 S.W.3d
778, 781 (Tex. 2006), and the trial court has “no discretion in determining what the law is
or applying the law to the facts.” Id. at 782 (quot. omitted). Unless the nonmovant
requests an evidentiary hearing, a trial court has no discretion to resolve disputed fact
issues against a movant for a new trial. See, e.g., Tactical Air, at 348-349; Smith, at 818.
Because that is the situation here, the trial court had no discretion, and its refusal to set
aside the summary judgment is effectively subject to de novo review.
59
(1) the failure to answer was not intentional or the result
of conscious indifference, but the result of an accident or
mistake, (2) the motion for new trial sets up a meritorious
defense, and (3) granting the motion will occasion no
undue delay or otherwise injure the plaintiff.
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex.
2002).
Plaintiffs asserted that the correct standard is a different two-part test
set forth in Carpenter. C.R. 472. The Texas Supreme Court held that the
two-part test applies when a party moves “for leave to file a late summary-
judgment response.” Carpenter, at 688. That court reserved the question of
“whether Craddock should apply when a nonmovant discovers its mistake
after the summary-judgment hearing or rendition of judgment.” Id. at 686.
The two-part Carpenter test requires that: “(1) the failure to respond was not
intentional or the result of conscious indifference, but the result of accident
or mistake, and (2) allowing the late response will occasion no undue delay
or otherwise injure the party seeking summary judgment.” Id. at 688. 22
An examination of Carpenter shows that the first and second elements
of the Carpenter test are the same as the first and third elements of the
22
While purporting to quote Carpenter, Plaintiffs misrepresented the standard to the trial
court by inserting “(unmixed with any negligence on the part of Defendant)” into the first
part of the test. C.R. 472. Carpenter imposes no such requirement. In Wheeler, the Texas
Supreme Court reaffirmed that Carpenter requires “intent or conscious indifference.” 157
S.W.3d at 442.
60
Craddock test. Carpenter described both tests in the same language, only
modifying words to account for the summary judgment context. Compare 98
S.W.3d at 685 (stating three-element Craddock test) with id. at 686 (stating
two-element Carpenter test).
That leaves the question reserved in Carpenter of whether the
remaining Craddock element should apply. Absent both actual and
constructive notice, constitutional due process compels disposing of
Craddock’s second element. Mathis, at 744 (citing Peralta).
But even assuming constructive notice were given, Craddock’s
second element should not be applied. In deciding not to apply that element
to requests for leave to file late summary judgment responses, the Texas
Supreme Court began its explanation with: “First, because our rules do not
mandate a summary-judgment response, a party that fails to timely file one
has breached no legal duty.” Carpenter, at 687. The court’s second reason
was that “the consequences to a party that inadvertently fails to timely
respond to a summary-judgment motion are often similar to those faced by a
party that would otherwise be bound by erroneous or deemed admissions.”
Id. “Each faces the very real prospect of summary disposition without regard
to the underlying merits.” Id.
61
Based on these two considerations, the court reasoned that
Carpenter’s two-part test “fairly balances the parties’ interests and furthers
the policies our rules are intended to serve.” Id. at 687-688.
Those same considerations apply at least where a nonmovant has only
constructive notice of a summary judgment hearing. 23 A nonmovant with
only constructive notice does not have actual knowledge of its need to
respond. Such a nonmovant will not know of any need to plead and prove
matters that require a response, to conduct additional discovery to obtain
supporting evidence, or to move for a continuance to allow additional time
for that discovery. 24 A nonmovant with only constructive notice may receive
any resulting judgment with little or no time to obtain the summary
judgment motion and assemble whatever merits evidence is then available
for a motion for new trial. 25 In those circumstances, to apply Craddock’s
23
The Court probably can avoid the question of whether Craddock should apply where a
nonmovant actually receives notice of a summary judgment motion and hearing.
24
For example, had Coastal Motorcars been aware of the motion and the hearing date,
Coastal Motorcars could have deposed Brown, who had not been deposed, in response to
Plaintiffs’ attempt to have Garcia testify for Brown under a power of attorney. See above,
at 26 fn. 8. Such a deposition may have raised fact issues on such matters as the extent of
Brown’s knowledge about the vehicle’s use and condition, the extent of pre-sale
disclosures, the materiality of and reliance on pre-sale representations, and post-sale
changes in the condition of the 528i.
25
For example, Coastal Motorcars’ sworn motion for new trial states that Coastal
Motorcars did not receive a copy of Plaintiffs’ motion for summary judgment until July
31, 2014, which was the same day that Coastal Motorcars’ motion for new trial was due
and was filed. C.R. 421 (showing July 31 filing date), 423 (copy, without exhibits,
62
additional element will also prevent a nonmovant “from properly presenting
the case to the court of appeals.” TEX. R. APP. P. 44.1(a)(2).
Carpenter’s two-element test is therefore the correct one to apply to
this case.
2. Coastal Motorcars’ motion for new trial satisfied both
tests.
Regardless of whether Craddock or Carpenter applies, either test is
satisfied.
The first element of both tests requires that “the failure to respond was
not intentional or the result of conscious indifference, but the result of
accident or mistake[.]” Carpenter, at 685, 688. Coastal Motorcars satisfied
this element. Allen’s affidavit explained that Coastal Motorcars did not file a
response, and that this “was accidental” and “not because of conscious
indifference” because Coastal Motorcars did not receive a copy of the
motion for summary judgment or notice of hearing. C.R. 431-433. Without
notice, a party cannot intentionally or with conscious indifference fail to
respond. Smith, 53 S.W.3d at 818 (notice of trial date not received). To
contradict Allen’s testimony, Plaintiffs had the burden of requesting an
evidentiary hearing. Id. (quoted above, at 52 fn. 13). Moreover, nothing in
received on July 31 after district clerk was “unable to find the file for several days”); see
also C.R. 416 (showing July 1 judgment date); TEX. R. CIV. P. 329b (requiring the filing
of motions for new trial within 30 days of signing of judgment).
63
the record suggests that Coastal Motorcars intended to avoid service. See
above, at 54-57.
The second Carpenter element and the third Craddock element is that
setting aside the judgment “will occasion no undue delay or otherwise
injure” the party awarded summary judgment. Carpenter, at 685, 688. 26 That
is, the opponent must not be “unduly prejudiced.” Id. at 687. A sworn
motion that denies undue delay or other injury is sufficient to shift the
burden onto an opponent to show that undue delay or other injury would
result. Mathis, 166 S.W.3d at 744. Coastal Motorcars satisfied that
requirement. C.R. 426 (mot.), 429 (verification). Because Plaintiffs did not
request an evidentiary hearing to contest that sworn denial, Smith, at 818, the
trial court was required to credit it. Moreover, nothing in the record
establishes the contrary. Mathis, at 744 (similar observation).
Assuming that Craddock would apply, its remaining element (“the
motion for new trial sets up a meritorious defense”) is also satisfied.
Carpenter, at 285 (quoted). Coastal Motorcars presented evidence that it
disclosed the prior accident, that a CarFax report did not indicate structural
or frame damage, that any damage was repaired before the vehicle was sold
26
A party need not satisfy these elements if the party “has been denied due process
through lack of notice” of a setting. Smith, at 817.
64
at auction, and that any damage did not cause the vehicle to be classified as
“a total loss, a salvage vehicle or a reconditioned vehicle.” C.R. 425, 433,
445. Even assuming Plaintiffs’ motion for summary judgment were
otherwise sufficient, this evidence would set up a defense to: the value of the
vehicle and (as a result) the amount of any damages awardable on Plaintiffs’
claims, see above, at 23-27; the reliance element of a DTPA laundry list
(§17.46(b)) claim, see above, at 30-31; the “taking advantage” and “grossly
unfair degree” elements of a DTPA unconscionability claim, see above, at
31-32; the merchantability of the vehicle at the time of sale for the purpose
of a DTPA breach of implied warranty claim, see above, at 32; the “basis of
the bargain” element of a DTPA breach of express warranty claim, see
above, at 33-34; the producing cause element of any DTPA claim, see
above, at 34; the breach of duty and proximate cause elements of a
negligence claim, see above, at 36-38; the material representation, false
representation, intent to induce reliance, and reliance elements of a fraud
claim, see above, at 38-42; the failure to disclose, materiality, deliberate
silence, intent to induce reliance, and reliance elements of a fraud-by-
nondisclosure claim, see id.; the false information, lack of reasonable care,
and reliance elements of a negligent misrepresentation claim, see above, at
39-42; the gross-disparity-in-value theory that is the basis of Plaintiffs’
65
stand-alone unconscionability claim, see above, at 42; and the excess-value
theory that is the basis of multiple other claims. See above, at 42, 44-45.
Moreover, a trier of fact could consider disclosure of the accident as a factor
that would allow an award of less than the maximum in DTPA additional
damages or no such damages at all. See above, at 28 (discussing
discretionary nature of those damages), 49-50 (discussing sufficiency of
proof of knowing or intentional violation).
Because the damages in this case are unliquidated, setting up a
meritorious defense as to damages – even if only DTPA additional damages
– would require a new trial on all issues. TEX. R. CIV. P. 44.1(b); see also
above, at 17-20. Coastal Motorcars’ motion for new trial, however, set up
additional reasons why Plaintiffs’ motion for summary judgment could not,
and should not, have been granted.
Under either the Craddock test or the Carpenter test, the trial court
erred by overruling Coastal Motorcars’ motion for new trial.
CONCLUSION AND PRAYER FOR RELIEF
The trial court erred by granting the summary judgment and again
erred by not setting it aside. The errors caused the rendition of an improper
judgment and therefore require reversal. TEX. R. CIV. P. 44.1(a).
66
Coastal Motorcars asks that the Court reverse the trial court’s
judgment and remand the case to the trial court for further proceedings on all
issues. Should the Court nonetheless conclude that any part of the trial
court’s judgment can be sustained, Coastal Motorcars alternatively requests
a reversal of the judgment as to all other parts and a remand of those parts
for further trial court proceedings.
Coastal Motorcars also asks the Court for any other relief to which it
is entitled.
Respectfully submitted,
/s/ Brian Miller
Brian Miller
State Bar No. 24002607
ROYSTON RAYZOR
VICKERY & WILLIAMS L.L.P.
Frost Bank Plaza, Suite 1300
802 N. Carancahua St.
Corpus Christi, TX 78401
Tel. No. (361) 884-8808
Fax No. (361) 884-7261
E-mail: brian.miller@roystonlaw.com
Attorney for appellant
Coastal Motorcars Ltd.
67
CERTIFICATE OF SERVICE
A true copy of this document was served using the electronic filing
and service system and as shown below on March 16, 2015.
Via e-mail to dbarre@albmlaw.com
Denny Barre
ANDERSON LEHRMAN
BARRE & MARAIST L.L.P.
Gaslight Square, Suite 1
1001 Third St.
Corpus Christi, TX 78404
Attorney for appellees
/s/ Brian Miller
Brian Miller
68
CERTIFICATE OF WORD-COUNT COMPLIANCE
I certify that this document complies with Rule of Appellate
Procedure 9.4. Excluding the portions listed in Rule 9.4(i)(1), and according
to the word count of the computer program used, this document contains
14,828 words.
/s/ Brian Miller
Brian Miller
69
APPENDIX
Index to Appendix
Document Record Appendix
Cite Page
Clerk’s record excerpts
Motion to Withdraw as Attorney for Defendant (May C.R. 177 1
27, 2014)
Order Granting Motion to Withdraw as Attorney for C.R. 181 3
Plaintiff [sic] (May 28, 2014)
Plaintiffs’ Motion for Summary Judgment (main C.R. 184 4
document only) (June 6, 2014)
Notice of Setting for Hearing on Plaintiffs’ Motion C.R. 407 11
for Summary Judgment (June 6, 2014)
Order Granting Final Summary Judgment Against C.R. 415 13
Defendant (July 1, 2014)
Motion for New Trial and to Set Aside Judgment C.R. 421 15
(main document only) (July 31, 2014)
Affidavit of Art Allen (exhibit to motion) C.R. 431 25
U.S. Postal Service tracking record (exhibit to C.R. 431 30
motion)
Order (granting motion for new trial) (Sept. 18, C.R. 450 31
2014)
Order Withdrawing and Vacating the Order C.R. 459 32
Granting Defendant’s Motion for New Trial (Sept.
25, 2014)
Envelope for service of Plaintiffs’ Motion for C.R. 494 33
Summary Judgment and notice of hearing (exhibit to
response)
Reporter’s Record Excerpts
Hearing on motion to withdraw (May 28, 2014) Supp. 34
R.R. 1:1
Hearing on motion for summary judgment R.R. 2:1 43
Statutes
Excerpts from Texas Business and Commerce Code, 50
Chapter 2
Appx. ii
Excerpts from Texas Business and Commerce Code, 53
Chapter 17
Excerpts from Texas Business Organizations Code, 63
Chapter 5
Excerpts from Texas Civil Practice and Remedies 66
Code, Chapter 30
Excerpts from Texas Civil Practice and Remedies 67
Code, Chapter 38
TEX. ACTS (75th Leg.), Ch. 887 (1997) 68
Appx. iii
NO. 2013-DCV-0520-F
MARY ALICE GARCIA and MARY LOU § IN THE DISTRICT COURT
BROWN §
Plaintiff(s) §
§
VS. § 214TH JUDICIAL DISTRICT
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW OF CORPUS CHRISTI §
Defendant( s) § NUECES COUNTY, TEXAS
MOTION TO WITHDRAW AS ATTORNEY FOR DEFENDANT
ERIC STEWART asks this Court to allow him to withdraw as attorney for Defendant,
COASTAL MOTORCARS, LTD d/b/a BMW OF CORPUS CHRISTI.
1. This case is currently set for trial on September 15, 2014. There are deadlines set
as per the docket control order which is attached hereto as Exhibit "A."
2. There is good cause, as required by Texas Rule of Civil Procedure 10, for the
court to grant this Motion. Defendant and counsel are at an impasse as to how this case should
be handled. The disagreements are such that continued representation is not practical.
3. This withdrawal is not sought for the purpose of delay.
4. A copy of this motion has been delivered to the Defendant and Defendant has
been notified in writing of his right to object to this motion.
5. Defendant's last known address is:
Art Allen
Coastal Motorcars, Ltd, d/b/a/ BMW of Corpus Christi
PO Box 60169
Corpus Christi, Texas 78466
6. Defendant has not consented at this time.
Appx. 1
177
7. For these reasons, Eric Stewart and the firm of HUSEMAN & STEWART ask this
Court to grant his motion to withdraw as attorney for Defendant, COASTAL MOTORCARS,
LTD d/b/a BMW OF CORPUS CHRISTI.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78478
Tel: (361) 883-3563
Fax: (361) 883-0210
ERISTEWART
State Bar No. 24058133
NOTICE OF HEARING
A hearing on Plaintiffs Motion to Withdraw has been set for the 28th day of May 2014, at
1:30 p.m. in 214th District Court, Nueces County Texas.
CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of May, 2014, that a true and correct copy of the
above and foregoing was served in the manner described below to:
VIA FACSIMILE: 361-883-4079
Mr. Denny Barre
ANDERSON LEHRMAN BARRE & MARAIST
Gaslight Square
1001 Third Street, Ste. 1
Corpus Christi, Texas 78404
~
ST~
/
ERIC
Appx. 2
178
NO. 2013-DCV-0520-F
MARY ALICE GARCIA and MARY LOU § IN THE DISTRICT COURT
BROWN §
Plaintiff(s) §
§
VS. § 214rn JUDICIAL DISTRICT
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW OF CORPUS CHRISTI §
Defendant(s) § NUECES COUNTY, TEXAS
ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY FOR PLAINTIFF
On )!/"'! .J.(" , 2014, the Court considered the motion of Eric Stewart and
HUSEMAN & STEWART to withdraw as counsel for Defendant.
Said motion is GRANTED.
SIGNED ~ l!_f!"'! , 2014.
SCANNED
JUL 0 2 2014
PATSY PEREZ. DISTRICT CLERK
NUECES COUNTY
MAY 2 9 2014
.~r,TSY PEREZ, DISTRICT CLERK
NUECES COUNTY
Appx. 3
181
0
CAUSE N2 2013-DCV-0520-F
MARY ALICE GARCIA § IN THE DISTRICT COURT
AND MARY Lou BROWN §
§
§
vs. § 214TH JUDICIAL DISTRICT
§
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW OF CORPUS CHRISTI § NUECES COUNTY, TEXAS
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Now COMES Mary Alice Garcia and Mary Lou Brown ("Plaintiffs"), Plaintiffs
herein, and tiles this Motion for Summary Judgment against Coastal Motorcars, Ltd.
d/b/a BMW of Corpus Christi ("BMWCC" or "Defendant"), Defendant herein, and in
support thereof, Plaintiffs would show the Court as follows:
CURRENT STATUS OF PLEADINGS
1. On February 5, 2013 Plaintiffs tiled its Original Petition against Defendant.
2. On February 27, 2013 Defendant tiled its Original Answer to Plaintiffs' Original
Petition.
3. On March 27, 2013 Defendant tiled its First Amended Answer.
4. The case is set for trial on September 15, 2014.
5. On the date stated in the Certificate of Service contained herein, Plaintiffs sfl§t ~
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Appx. 4
184
BACKGROUND & BASIS FOR SUMMARY JUDGMENT
Plaintiffs are entitled to Summary Judgment against Defendant as a
matter of law for all of the following reasons:
6. On or about October 19, 2011, BMWCC sold Plaintiffs a 2008 BMW 528i,
vehicle identification number WBANU53548C117148 ("vehicle").
7. BMW CC sold the vehicle and other goods and services to Plaintiffs for a total
of payments of $48,534.48 as reflected on the Motor Vehicle Retail Installment
Sales Contract ("contract").
8. The original creditor for the sale of the vehicle was BMWCC.
9. The contract was assigned by BMWCC to Navy Army Community Credit Union,
which is the current owner and holder of the contract.
10. Plaintiffs traded in another 2008 BMW 528i that had more miles so that
Plaintiffs could have the same automobile but with less miles.
11. Shortly after purchase, Plaintiffs began to experience problems with the vehicle,
and on each occasion, Plaintiffs took the vehicle to BMWCC for service.
12. Since purchasing the vehicle October 19, 2011, the vehicle has been in
BMWCC's repair facility a number of times.
13. BMWCC represented that the service work would be performed in a good and
workmanlike manner and was obligated to repair the vehicle in a good and
workmanlike manner; this has not occurred as some of the problems continue
to persist.
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - PAGE 2
Appx. 5
185
14. Because of the repeated problems with the vehicle, Plaintiffs requested that
BMWCC trade Plaintiffs out of the vehicle and in to another one - one that
would be the same make and model with the same options and with similar
mileage.
15. BMWCC declined and said that Plaintiffs could purchase another vehicle from
BMWCC if Plaintiffs would agree to put down an additional $6,000.00.
16. Plaintiffs declined and went to inquire at other local dealerships.
17. On May 4, 2012 Plaintiffs learned, for the first time, that the vehicle had been
involved in a prior wreck, a material fact that BMWCC failed to disclose to
Plaintiffs prior to selling the vehicle to Plaintiffs. In fact, the vehicle had
sustained extensive damage, including frame/unibody damage.
18. BMWCC had actual knowledge that the vehicle had been in a prior wreck and
had frame/unibody damage as it purchased the vehicle at ADESA's auto auction
with full knowledge of such damage for $24,500.00, which BMWCC failed to
disclose to Plaintiffs.
19. Had either the nature or extent of the prior damage been disclosed to Plaintiffs
prior to purchase, Plaintiffs would not have purchased the vehicle under the
terms and conditions purchased. Plaintiffs were induced to purchase the
vehicle as a result of BMWCC's failure to disclose.
20. As a result of Defendant's conduct described herein, Plaintiffs have suffered
damages in excess of the minimal jurisdictional limits, for which Plaintiffs have
sued.
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - PAGE 3
Appx. 6
186
EVIDENCE
11 11
21 . Exhibit 1 Affidavit of Mary Alice Garcia
11 11
22. Exhibit 2 Affidavit of Denny Barre
11 11
23. Exhibit 3 Documents labelled BMW 00001-00020 produced in
response to Plaintiffs' written discovery to Defendant
24. Exhibits 1-3, along with any attachments, are made a part of this pleading for
all purposes, are filed in support hereof, and are incorporated herein by
reference as if fully copied and set forth at length.
25. Plaintiffs also request that the Court refer to and take judicial notice of the
Court's file in this lawsuit.
26. Some of the documents attached to this Motion were produced in the course
of discovery in this lawsuit and are a part of the record in this cause of action,
in the form of deposition testimony and deposition exhibits and/or were
produced by the parties in response to written discovery. Pursuant to TEX. R.
C1v. P. 193. 7 and/or other Texas law, the documents are hereby authenticated
for all purposes herein. Notice pursuant to TEX. R. C1v. P. 193. 7 was provided
to Defendant and was contained in the written discovery requests.
27. Plaintiffs also request that the Court refer to the items contained in TEX. R. C1v.
P. 166a(c)(i) & (ii) when ruling on this Motion, including but not limited to the
following:
27 .1. Affidavit of Mary Alice Garcia
27 .2. Affidavit of Denny Barre
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - PAGE 4
Appx. 7
187
27 .3. Portions of Defendant's pt Amended Responses to Plaintiffs'
Interrogatories
27 .4. Portions of the deposition of ADESA Texas, Inc. d/b/a ADESA Dallas
27 .5. Portions of documents produced by Defendant in response to Plaintiffs'
Requests for Production labelled BMW 00001-00020
28. In accordance with TEX. R. C1v. P. 166a(d), Plaintiffs give their notice of intent
to use the Exhibits and any attachments in support of this Motion for Summary
Judgment against Defendant.
RELIEF REQUESTED
The pleadings of the parties filed herein together with the attached Exhibits
show that there is no genuine issue as to any material fact in this Cause with regard
to Plaintiffs' causes of action against Defendant for violations of the DTPA, breach of
contract, fraud, unconscionability, conversion, negligence, negligent
misrepresentation, gross negligence, common law fraud and fraud by non-disclosure,
quantum meruit, quasi contract, assumpsit, detrimental reliance, promissory
estoppel, unjust enrichment, and money had and received as described above.
Therefore, Plaintiffs are entitled to judgment against Defendant as a matter of law on
each of these causes of action.
Plaintiffs request that in the event that the complete relief requested by them
is denied that the Court determine those material facts that are in good faith actually
controverted and make an Order specifying those facts that appear to be without
substantial controversy. In addition, Plaintiffs request that in the event the complete
relief requested by it is denied, the Court grant Partial Summary Judgment against
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - PAGE 5
Appx. 8
188
Defendant for Plaintiffs as to such allegations and relief as the Court may approve and
Order.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that the Court set a time for
hearing this Motion, and that upon said hearing, the Court in all things grant Plaintiffs'
Motion for Summary Judgment against Defendant, that Plaintiffs be granted all relief
requested in its Original Petition and Motion for Summary Judgment against Defendant
on file herein, and that Plaintiffs have such other and further relief at law or in equity,
both general and special, to which they may show themselves to be justly entitled.
Respectfully submitted,
ANDERSON, LEHRMAN, BARRE &
MARAIST, L.L.P.
Gaslight Square
1001 Third Street, Suite N2 1
Corpus Christi, Texas 78404
(361) 884-4981 Telephone
(361) 883-4079 Telecopier
e-mail: "dbarre@albmlaw.com"
By:
Attorneys for Plaintiffs
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - PAGE 6
Appx. 9
189
CERTIFICATE OF SERVICE
I hereby certify that pursuant to the Texas Rules of Civil Procedure, a true and
correct copy of the foregoing has been served on the following:
Mr. Art Allen, Registered Agent CMRRR N11 7011 1150 0000 8829 0993
COASTAL AUTO ENTERPRISES, INC.
as Registered Agent for
COASTAL MOTORCARS, LTD.
D/B/ A BMW OF CORPUS CHRISTI
Post Office Box 60169
Corpus Christi, Texas 78466
on this the 5th day of June, 2014.
w:\\garcia\msj
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT - PAGE 7
Appx. 10
190
CAUSE N2 2013-DCV-0520-F
MARY ALICE GARCIA § IN THE DISTRICT COURT
AND MARY Lou BROWN §
§
§
vs. § 214TH JUDICIAL DISTRICT
§
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW OF CORPUS CHRISTI § NUECES COUNTY, TEXAS
NOTICE OF SETTING FOR HEARING ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Please take notice that Plaintiffs' Motion for Summary Judgment has been set
for hearing before the 214th District Court of Nueces County, Texas, at the Nueces
County Courthouse, Corpus Christi, Texas on the 1st day of July, 2014 at 1 :30 p.m.
Respectfully submitted,
ANDERSON, LEHRMAN, BARRE &
MARAIST, L.L.P.
Gaslight Square
1001 Third Street, Suite N2 1
Corpus Christi, Texas 78404
(361) 884-4981 Telephone
(361) 883-4079 Telecopier
e-mail: "dbarre@albmlaw.com"
By:
Attorneys for Plaintiffs
Appx. 11
407
, '
CERTIFICATE OF SERVICE
I hereby certify that pursuant to the Texas Rules of Civil Procedure, a true and
correct copy of the foregoing has been served on the following:
Mr. Art Allen, Registered Agent CMRRR N11 7011 1150 0000 8829 0993
COASTAL AUTO ENTERPRISES, INC.
as Registered Agent for
COASTAL MOTORCARS, LTD.
D/B/ A BMW OF CORPUS CHRISTI
Post Office Box 60169
Corpus Christi, Texas 78466
on this the 5th day of June, 2014.
w:\\garcia\notice.msj
Appx. 12
408
CAUSE N2 2013-DCV-0520-F
MARY ALICE GARCIA § IN THE DISTRICT COURT
AND MARY Lou BROWN §
§
§
§
vs. § 214TH JUDICIAL DISTRICT
§
§
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW OF CORPUS CHRISTI § NUECES COUNTY, TEXAS
ORDER GRANTING FINAL SUMMARY JUDGMENT AGAINST DEFENDANT
On this day the Court considered Plaintiffs' Motion for Summary Judgment
against Coastal Motorcars, Ltd. d/b/a BMW of Corpus Christi, Defendant, and after
considering the Motion, any response filed to the Motion, the evidence, and the law
finds that the Motion should be granted. The Court also takes judicial notice of the
Court's file contents and finds that Defendant was properly served with Plaintiff's
Motion for Summary Judgment and notice of this hearing. The Court also finds that
Plaintiff is entitled to the monetary damages set forth below and the reasonable and
necessary attorney's fees set forth below, which fees are authorized by TEX. Bus. &
COM. CODE § 17.50(d) and TEX. C1v. PRAC. & REM. CODE ANN. § 38.001.
IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that Mary Alice Garcia and
Mary Lou Brown have judgment against Coastal Motorcars, Ltd. d/b/a BMW of Corpus
Christi as follows:
1. The sum of $22, 707.43 as economic damages;
2. The sum of $68, 122.29 as additional damages;
3. Prejudgment interest on $22, 707.43 at 5.00% per annum pursuant to TEX.
FINC. CODE §304.104 from February 5, 2013 through the date this judgment is
signed; the amount of prejudgment interest from February 5, 2013 through July
1, 2014 is $1,589.21, and interest continues to accrue at the rate of $3.11 per
diem from July 2, 2014 until the date the Judgment is signed;
Appx. 13
ORDER GRANTING FINAL SUMMARY JUDGMENT AGAINST DEFENDANT - Page 1 of 2
415
'
'
4. The sum of $137, 762.94 as attorney's fees; and, if this cause is not appealed,
the judgment for attorney's fees will be credited with $65,000.00, leaving
$72, 762.94; and, if this cause is appealed to the court of appeals, but the
appeal is not carried to the Supreme Court of Texas by appeal or writ of error,
the judgment for attorney's fees will be credited with $35,000.00, leaving a
recovery of attorney's fees of $102,762.94; and if application for writ of error
is made but such application is denied, dismissed or refused, the judgment for
attorney's fees will be credited with $30,000.00, leaving a recovery of
attorney's fees of $107, 762.94;
5. Postjudgment interest at the rate of 5.00% per annum, from one day after this
judgment is signed and until the judgment is paid in full pursuant to Chapter
304 of the Texas Finance Code and/or other Texas law;
6. All costs of Court are taxed against Coastal Motorcars, Ltd. d/b/a BMW of
Corpus Christi;
7. All writs and processes for the enforcement and collection of this judgment may
issue as necessary; and
8. This Judgment is final, disposes of all claims and all parties, and is appealable.
SIGNED, RENDERED, AND ORDERED ENTERED this 1st day of July, 2014.
w:\\garcia\msj.ord
Appx. 14
ORDER GRANTING FINAL SUMMARY JUDGMENT AGAINST DEFENDANT - Page 2 of 2 416
. '•
Filed
7/31/2014 7:16:37 PM
Patsy Perez
District Clerk
Nueces County, Texas
CAUSE NO. 2013-DCV-0520-F
MARY LOU BROWN and § IN THE DISTRICT COURT
MARY ALICE GARCIA, §
Plaintiffs §
§
vs. § 214TH DISTRICT COURT
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW of CORPUS CHRISTI §
Defendants § NUECES COUNTY, TEXAS
MOTION FOR NEW TRIAL AND TO SET ASIDE JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, COASTAL MOTORCARS, LTD. D/B/A BMW of CORPUS CHRISTI,
Defendant in the above styled and numbered cause, and respectfully requests that the Honorable
Court to grant a new trial in the interest of justice and fairness and/or on the grounds stated below
or set aside the judgment granted on Plaintiffs' Mary Lou Brown's and Mary Alice Garcia's
Motion for Summary Judgment on July 1, 2014, and in support thereof states and assert as
follows:
I.
Introduction/ Craddock Factors Do Not Apply Because Defendant Was Not Properly Served.
Plaintiffs sued Defendant on or about February 5, 2013 regarding the sale of a vehicle by
Defendant to Plaintiffs. The. suit was based upon the sale of a vehicle by Defendant to Plaintiffs
in 2011. At that time, the Defendant owned and operated the BMW Dealership in Corpus
Christi, Texas and was doing business as BMW of Corpus Christi.
In December of 2012, Defendant sold its interest in the auto dealership known as "BMW
of Corpus Christi" and no longer owned or operated said business establishment.
Plaintiffs served Defendant with the original lawsuit in February, 2013 by serving its
Appx. 15
421
Registered Agent, Coastal Auto Enterprises, Inc., the Registered Agent for Defendant as per the
records on file with the Texas Secretary of State. Mr. Art Allen was served as he was the
Registered Agent for Coastal Auto Enterprises. Mr. Allen was served at 4225 South Staples
Street, Corpus Christi, Texas 78415; this was the address listed with the Texas Secretary of State.
On February 27, 2013, Mr. Eric Stewart filed an answer on behalf of Defendant. On or about
May 27, 2014, Mr. Stewart filed a Motion to Withdraw as Attorney of Record for Defendant and
I
I
this Court granted that Motion the next day on May 28, 2014. Thar Motion listed the last known
address of the Defendant as follows:
"Art Allen
Coastal Motor Cars, Ltd, d/b/a BMW of Corpus Christi
P.O. Box 60169
Corpus Christi, Texas 78466"
Plaintiffs had actual and constructive knowledge that Art! Allen was not the Defendant
and not the agent for service of Coastal Motor Cars, Ltd. F~er, Plaintiffs had actual and
constructive knowledge that Coastal Motor Cars, Ltd, was not doing business as BMW of Corpus
Christi, since it had been sold in December of 2012. See the Affidavit of Arthur Ray Allen,
attached hereto and fully incorporated herein by referenced as if set forth at length.
Further, Plaintiffs had constructive knowledge of the new address for Coastal Motor Cars,
Ltd., its agent for service of process, Coastal Auto Enterprises, Inc. and its agent for service of
process Mr. Art Allen. On or about March 2013, Coastal Motor Cars, Ltd., and Coastal
Enterprises Inc. caused to be filed with the Texas Secretary of State its new addresses and
addresses of their registered agents, which were not P. 0. Box 60169 Corpus Christi, Texas
78466. See the Affidavit of Arthur Ray Allen, attached hereto and fully incorporated herein by
referenced as if set forth at length.
Appx. 16
422
In addition, Coastal Motor Cars, Ltd and Coastal Auto Enterprises, Inc, subsequent to the
sale of the BMW dealership in Corpus Christi, Texas in December 4012, cancelled said P.O. Box
,i
60169, Corpus Christi, Texas 78466, confirming that there was no/more mail arriving regarding
i
' I
the business or the new owners and after confirming that the newjowner did not want the P.O.
Box. This was accomplished in January 2014, some six (6) months prior to Plaintiffs attempted
service of their Motion for Summary Judgment. Jn fact, counsel fior Plaintiffs was fully aware
that this was not Defendant's address for service as reflected hy t~e fact that the United States
Postal Service, as stated on its website, presumably delivered th~ unclaimed envelope back to
!
counsel/or Plaintiffs on June 17, 2014 at 9:52 a.m., noting th(l.t whomever owned the post
i
office box had moved and left no forwarding address; nevertheless and despite such
knowledge that the address was not a good address for service or; any type of mailing, there is
absolutely no indication that Plai.ntif/s or their counsel checked with the Texas Secretary of
State (i.e., the public records maintained by the State in regard to entities in Texas) as to the
correct address/or service and as is the proper method and procedure for locating the address
of an entities Registered Agent in Texas. It is asserted that the correct address was at all times
available to Plaintiffs and their counsel if they had just taken a look. See the Affidavit of
Arthur Ray Allen, attached hereto and fully incorporated herein by referenced as if set forth at
length.
Neither Coastal Motor Cars, Ltd, Coastal Auto Enterprises, Inc., Mr. Art Allen nor any of
their agents or representatives were ever served nor did they jointly and/or severally otherwise
receive a copy of the Motion for Summary Judgment or notice of any hearing date. (Until the
District Clerk of Nueces County, unable to find the file for several days, furnished the Motion
without Exhibits only to Defendant's undersigned attorney on July 31, 2014). See the Affidavit of
Appx. 17
423
Arthur Ray Allen, attached hereto and fully incorporated herein by referenced as if set forth at
length.
Plaintiffs' Filing ofMotion Was Ca/.culated to Give Unfair Advantage
On June 6, 2014, just nine (9) days subsequent to the Defendant's original attorney
withdrawing from the matter, and Plaintiffs knowing that no new attorney had made an
appearance on behalf of Defendant, filed their Motion for Summary Judgment Further,
Plaintiffs evidently made no effort to consult with the Secretary of State regarding the Limited
Partnership's new address. Lastly, Plaintiffs could not have received notification that the Motion
and hearing date were served as the P.O. Box at that time was no longer rented to or under the
control of Defendant. See the Affidavit of Arthur Ray Allen, attached hereto and fully
incorporated herein by referenced as if set forth at length.
Failure to Obtain Service Changes the Factors that Must Be Proved/or Granting ofa New
Trial
The Courts abhor default judgments. Moreover, when a Defendant has been properly
served, in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (I'ex. 1939), reversed the
denial of a post answer default judgment. The "Craddock" requirements have repeatedly been
held to apply to post-answer default judgments. Ivy v. Carrell, 407 S.W.2d 212, 214-15 (I'ex.)
The factors established in Craddock v. Sunshine Bus Lines. Inc.. 133 S.W.2d 124, 126 {!'ex.
1939), as follows:
a. Demonstrate the failure to appear was not intentional or the result of
conscious indifference, but was a mistake or accident;
b. Set up (not necessarily prove) a meritorious defense; and
c. Allege that the granting of a new trial will not result in a delay or prejudice
to plaintiff.
Appx. 18
424
' I ~
Defendant's representative's affidavit establishes that the Defendant was never served
with the Motion for Summary Judgment or the hearing date.
Proof of lack of notice satisfies the first prong of the Craddock test because without
notice, a party cannot intentionally or with conscious indifference fail to appear. Texas Sting,
Ltd v. R.B. Foods, Inc., 82 S.W.3d 644, 651-52 (I'ex. App. -San Antonio 2002, pet, denied).
Furthermore, having established that the failure to appear. was due to a lack of notice,
Defendant is not required to establish the remaining "Craddock" factors to be entitled to a
new trial. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); Lopez v. Lopez, 757 S.W.2d
721, 722 (Tex. 1988).
Despite Any Craddock Factors Except Notice Having To Be Satisfied, Defendant Can Prove
the Remaining
Nevertheless and to the extent necessary, Defendant also asserts that it has a meritorious
defense to the Plaintiffs' claims. When Plaintiffs purchased the vehicle in question, the fact that
the rear bumper had been repaired was specifically disclosed, and Defendant also provided the
Plaintiffs with a Car Fax report that revealed the vehicle had been in an accident in 2009 and that
it had no frame damage. See the Affidavit of Arthur R.ay Allen, attached hereto and folly
incorporated herein by referenced as if set forth at length.
Plaintiffs' complaints are that the vehicle suffered ''unibody damage". The damage to the
vehicle was evidently repaired prior to the vehicle being offered for sale at auction and being
purchased by Defendant. Further, the damage to the vehicle did not cause it to be classified as a
"total loss", a salvage vehicle or a "reconditioned vehicle". Further, there was no "knowing"
violation as the fact that the vehicle was in an accident was revealed. See the Affidavit ofArthur
Ray Allen, attached hereto and fully incorporated herein by referenced as ifset forth at length.
Appx. 19
425
Finally, Defendant asserts that the granting of a new trial on the Motion for Summary
Judgment will not result in a delay or prejudice to Plaintiffs as no witnesses or other valuable
evidence has been lost or will be lost by the granting of a new trial and the matter had, prior to
the granting of the Motion for Summary Judgment, been. set for trial on the merits. In support of
this request for a new trial, please see the Affidavit of Art Allen, fully incorporated herein by
referenced as if set forth at length.
n.
Denial of Due Process.
Defendant incorporates the facts and assertions contained in section I above, and thereby
further respectfully asserts that Defendant was denied due process by not being provided with
notice of Plaintiff's Motion and/or notice of the hearing thereon that resulted in the granting of
Plaintiffs' Motion for Summary for Summary Judgment and an entry of Judgment against
Defendant, and upon such basis Defendant respectfully requests that the Order granting of
Plaintiffs' Motion for Summary for Summary Judgment and the entry of Judgment against
Defendant be set aside in its entirety. See the Affidavit ofArthur Ray Allen, attached hereto and
fully incorporated herein by referenced as ifset forth at length.
DI.
Evidence Factually Insufficient
Defendant incorporates the facts and assertions contained in section I above, and hereby
further respectfully asserts that the evidence presented was factually insufficient to support the
Order granting of Plaintiffs' Motion for Summary for Summary Judgment and the entry of
Judgment against Defendant in this cause and is against the great weight and preponderance of
the evidence presented, and upon such basis Defendant respectfully requests that the Order
Appx. 20
426
granting of Plaintiffs' Motion for Swnmary for Summary Judgment and the entry of Judgment
against Defendant be set aside in its entirety. See the Affidavit of Arthur Ray Allen, attached
hereto and fully incorporated herein by referenced as if set forth at length.
IV.
Evidence Factually Insufficient
Defendant incorporates the facts and assertions contained in section I above, and hereby
further respectfully asserts that the evidence presented was legal~y insufficient to support the
Order granting of Plaintiffs' Motion for Summary for Summary Judgment and the entry of
Judgment against Defendant in this cause, and upon such basis Defendant respectfully requests
that the Order granting of Plaintiffs' Motion for Swnmary for Summary Judgment and the entry
of Judgment against Defendant be set aside in its entirety. See the Affidavit ofArthur Ray Allen,
attached hereto and folly incorporated herein by referenced as if set forth at length.
v.
Faimess and Justice
Defendant incorporates the facts and assertions contained in section 1 above, and by way
of further pleading hereby makes a general request for the setting aside of the Order granting of
Plaintiffs' Motion for Summary for Summary Judgment and the entry of Judgment against
Defendant in this cause, and upon such basis Defendant respectfully requests that the Order
granting of Plaintiffs' Motion for Summary for Summary Judgment and the entry of Judgment
against Defendant be set aside in its entirety. See the Affidavit of Arthur Ray Allen, attached
hereto and fully incorporated herein by referenced as if set forth at length
Prayer
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays (a) that this
Appx. 21
427
Motion be granted in its entirety, and that the Order granting of Plaintiffs' Motion for Summary
for Summary Judgment and the entry of Judgment against Defendant be set aside in its entirety
and that Defendant be granted a new trial/hearing on all matters and issues; and (b) that
Defendant be granted such relief, at law and/or in equity, special and/or general, to which
Defendant may be justly entitled.
Respectfully submitted,
N . 955560 - Fed. Ad. No. 7939
FOR PLAINTIFF
Appx. 22
428
STATE OF TEXAS §
1
COUNTYOFtt~{, -~
VERIFICATlON ofi' MOT!ON FOR NEW TIDAL OF COASTAL MOTOR
CARS, LTD. D/B/A BMW-OF .CORPUS CJllUSTI BY[ ART ALLEN
R!EPRESENTATIVE
; .
OF' DEFENDANT:'
Before M.e, the undersi~ed authority on this the 31st day of .July, 2014 personally
.appeared Al:t Allen, Pr~ident of Coastal Auto Enterprises, lnc., General Partner of
Defendant Coastal Moto~ Cars, Ltd.? known to me and/0r idel1tifi~ by valid Government
issued photo identificati41n and sw-0te and affirmed that each an:d every statem.ent and
allegation stated h1 Defe~da,nt's Motion for N¥w Trial in Cauae l':lo,2013-0CV-0520-F,
Mary Alice Garcia and 'Mary Lou Brown vs. Coastal Motor Cars; Ltd. dlb/a BMW of
Carpus Christi, 214'h l;Jistrict Court of Nueces County, w~ within his personal
knowledge and that they }vere true and correct. '
i
Signed and Notarized thi$ 31st d~yofJuly,2()14
!
Art Allen, President
~
N6ta.ry Public - St~e of Texas ·
Coastal Auto Enterprisesj Inc., as Printed Name and Seal
General Partner of Defendant
Coastal Mo~or Cars, Ltd. ·
Appx. 23
429
''.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrwnent was served upon
all counsel of record pursuant to the Texas Rules of Civil Procedure by the method indicated
below on this 31st day of July, 2014.
Mr. Denny Barre
Anderson, Lehrman, Barre & Maraist, LLP
1001 Third Street, Suite 1
Corpus Christi, Texas 78404
J"'iD :fiastr JA.884:4~
ti/ .f' C/11.L.Lll..:
JO/tl tJ;).q{) l?..,273;_
Appx. 24
430
. ..,,,
(~
0
'
CA(JSE NO. 2013-DCV-0520-F
MARY LOU BROWN and § IN THE DISTRICT COURT
MARY ALICE GARCIA, §
Plaintiffs §
§
vs. § 214TH DISTRICT COURT
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW of CORPUS CHRISTI §
Defendants § NUECES COUNTY, TEXAS
STATE OF TEXAS §
§
COUNTY OF HARRIS §
AFFIDAVIT OF ARTHUR RAY ALLEN
BEFORE ME, the undersigned authority, personally appeared on the date stated below,
Arthur Ray Allen a.k.a. "Art Allen'', personally known to me and/or identified by valid
government issued identification and swore and/or affirmed that he had personal knowledge of
the following facts and that they were true and correct:
"My name is Arthur Ray Allen (also known as 'Art Allen'), I am over the age of eighteen
(18), of sound mind and otherwise competent to make this affidavit. I am the President,
Secretary and a Director of Coastal Auto Enterprises, Inc., the General Partner of Coastal Motor
Cars, Ltd., the 'Defendant'' in Cause No. 2013DCV-0520-F, styled Mary Lou Brown and Mary
Alice Garcia v. Coastal Motor Cars, Ltd., in the 214th District Court of Nueces County, Texas.
Mary Lou Brown and Mary Alice Garcia being referred to hereinafter as 'Plaintiffs.' I am the
agent for service of process for Coastal Auto Enterprises, Inc., who is and at all pertinent times
was the agent for servic~ for Coastal Motor Cars, Ltd.
Defendant was formerly represented by Mr. Eric Stewart. In May of2014, Mr. Stewart's
assistant and I were making arrangements for my deposition. With no true reason, Mr. Stewart
stated he was going to withdraw; Defendant did not consent to the.withdrawal and asserts that it
was not given sufficient time to address the withdrawal or possibly seek other counsel. On or
about July 15, 2014 I was informed that a Judgment was taken against the Defendant when I
received an e-mail from Denny Barre, counsel for Plaintiffs. Although he pmportedly had my e-
mail address and used it for providing notice of the alleged Judgment, Mr. Barre never sent me a
copy of the Motion for Swnmary Judgment or Notice of any hearing via this same e-mail that he
used for notice of the Judgment. Neither I nor the Defendant had a chance to file a response or
answer to the Motion for Summary Judgment, and I understand that service was sent to the
Defendant at a Post Office Box in Corpus Christi that was cancelled in February of2014.
Appx. 25
"Exhibit I" 431
0
My permari.ent address and address on my Texas driver's licenses has continuously been
715 Upper Broadway Unit 1401, Corpus Christi, Texas. I was not served personally or at this
address and had I been I would have had the Defendant file a response or would have
immediately hired an attorney to do so.
Plaintiffs had actual and constructive knowledge that Art Allen was not the Defendant
and not the agent for service of Coastal Motor Cars, Ltd. Further, Plaintiffs had actual and
constructive knowledge that Coastal Motor Cars, Ltd, was not doing business as BMW of Corpus
Christi, since it had been sold in December of 2012.
Further, Plaintiffs had constructive knowledge of the new address for Coastal Motor Cars,
Ltd., its agent for service of process, Coastal Auto Enterprises, Inc. and its 'agent for service of
process Mr. Art Allen based on it being of record with the Texas Secretary of State. In fact, on or
about March 2013, Coastal Motor Cars, Ltd., and Coastal Enterprises Inc. caused to be filed with
the Texas Secretary of State its new addresses and addresses of their registered agents, which
were not P.O. Box 60169 Corpus Christi, Texas 78466.
In addition, Coastal Motor Cars, Ltd and Coastal Auto Enterprises, Inc, subsequent to the
sale of the BMW dealership in Corpus Christi, Texas in December 2012, cancelled said P.O. Box
60169, Corpus Christi, Texas 78466, confirming that there was no more mail arriving regarding
the business or the new owners and after confirming that the new owner did not want the P.O.
Box. This was accomplished in January 2014, some six (6) months prior to Plaintiffs attempted
service of their Motion for Summary Judgment. In fact, it is asserted that counsel for Plaintiffs
was fully aware that this was not Defendant's address for service as reflected by the fact that the
United States Postal Service, as stated on its website, presumably delivered the unclaimed
envelope back to counsel for Plaintiffs on June 17, 2014 at 9:52 a.m., noting that whomever
owned the post office box had moved and left no forwarding address; nevertheless and despite
such knowledge that the address was not a good address for service or any type of mailing, there
is absolutely no indication that Plaintiffs or their counsel checked with the Texas Secretary of
State (i.e., the public records maintained by the State in regard to entities in Texas) as to the
correct address for service and as is the proper method and procedure for locating the address of
an entity's Registered Agent in Texas. It is asserted that the correct address was at all times
available to Plaintiffs and their counsel, if they had just bothered to take a look.
Neither Coastal Motor Cars, Ltd, Coastal Auto Enterprises, Inc., Mr. Art Allen nor any of
their agents or representatives were ever served nor did they jointly and/or severally otherwise
receive a copy of the Motion for Summary Judgment or notice of~y hearing date.
The Defendant's failure to answer or file a response to the Motion for Summary
Judgment was accidental because I, as Registered Agent, was not served personally or at a
current address and I did not have knowledge of the Motion for Summary Judgment or the
Appx. 26
"Exhibit l" 432
.
'
hearing thereon, and the failure to answer or file a response was not because of conscious·
indifference on my part or the part of Defendant. :
Defendant also asserts that it has a meritorious defense to ~he Plaintiffs' claims. When
Plaintiffs purchased the vehicle in question, the fact that the rear bi.imper bad been repaired was
specifically disclosed to Plaintiffs, and Defendant also provided ~e Plaintiffs with a Car Fax
report that revealed the vehicle had been in an accident in 2009 andI that it had no frame damage
(as reported by Car Fax). :
Plaintiffs' complaints are that the vehicle suffered ''unibody:damage". The damage to the
vehicle was repaired prior to the vehicle being offered for sale at auction and being purchased by
I
Defendant. Further, the damage to the vehicle did not cause it to be classified as a "total loss", a
I
salvage vehicle or a "reconditioned vehicle". Further, there was n,o ''knowing" violation as the
fact that the vehicle was in an accident was revealed. Had Plaintiff~ inquired as to the exact type
of damage, Defendant could have researched the information iri their files and. would have
provided same to Plaintiffs.
Finally, Defendant asserts that the granting of a new trial; on the Motion for Summary
Judgment will not result in a delay or prejudice to Plaintiffs as no witnesses or other valuable
evidence has been lost or will be lost by the granting of a new trial and the matter had, prior to
the granting of the Motion for Summary Judgment, been set for trial on the merits."
Defendant further respectfully asserts that Defendant was denied due process by not being
provided with notice of Plaintiff's Motion and/or notice of the hearing thereon that resulted in the
granting of Plaintiffs' Motion for Summary for Summary Judgment and an entry of Judgment
against Defendant, and upon such basis Defendant respectfully requests that the Order granting
of Plaintiffs' Motion for Summary for Summary Judgment and the entry of Judgment against
Defendant be set aside in its entirety.
Defendant further asserts that Defendant was denied due process by not being provided
with notice of Plaintiffs Motion and/or notice of the hearing thereon that resulted in the granting
of Plaintiffs' Motion for Summary for Summary Judgment and an entry of Judgment against
Defendant, and upon such basis Defendant respectfully requests that the Order .granting of
Plaintiffs' Motion for Summary for Swnmary Judgment and the entry of Judgment against
Defendant be set aside in its entirety.
Defendant further respectfully asserts that the evidence presented was factually
insufficient to support the Order granting of Plaintiffs' Motion for Summary for Summary
Judgment and the entry of Judgment against Defendant in this cause and is against the great
weight and preponderance of the evidence presented, and upon such basis Defendant respectfully
Appx. 27
"Exhibit 1" 433
. '
requests that the Order granting of Plaintiffs' Motion for Summary for Summary Judgment and
the entry of Judgment against Defendant be set aside in its entirety.;
Defendant further respectfully asserts that the evidence presented was legally insufficient
to support the Order granting of Plaintiffs' Motion for Summary for Summary Judgment and the
entry of Judgment against Defendant in this cause, and upon such basis Defendant respectfully
requests that the Order granting of Plaintiffs' Motion for Summary for Summary Judgment and
1
the entry of Judgment against Defendant be set aside in its entirety.
Defendant further makes a general request for the setting aside of the Order granting of
Plaintiffs' Motion for Summary for Summary Judgment and the entry of Judgment against
Defendant in this cause, and upon such basis Defendant respectfully requests that the Order
granting of Plaintiffs' Motion for Summary for Summary Judgm~nt and the entry of Judgment
against Defendant be set aside in its entirety. ·
The documents attached hereto as "Exhibit A" (and fully incorporated herein by reference
as if set forth at length) being USPS.com USPS Tracking dated 7/31/2014 [2 pages] is a true and
copy of the tracking detail relating to the mailing sent by Plaintiffs:(and/or Plaintiffs' counsel) in
regard to the Motion for Swnmary Judgment and the hearing thereon and is a true and correct
copy of what appears on the Official Website for the United :States Postal Service, being
usps.com.
The documents attached hereto as "Exhibit B" (and fully incorporated herein by reference
as if set forth at length) being the Statement of Change of Registered Office/Agent for Coastal
Motorcars, Ltd dated March 25, 2013 [1 page], Statement of Change of Registered Office/Agent
for Coastal; Auto Enterprises, Inc. dated March 25, 2013 [I page], Change of Registered
Agent/Registered Office filed April 7, 2003 [2 pages]. Statement of Change of Registered Office
of Coastal Motorcars, Ltd. filed February 4, 2005 [I page] are true and correct copies of
documents relating to the entities referenced therein on file with the Texas Secretary of State and
as are viewed on the Official website for the Texas Secretary of State and as were caused to be
filed with the Texas Secretary of State by the entities named therein.
The documents attached hereto as "Exhibit C" (and fully incorporated herein by reference
as if set forth at length) being an Acknowledgement of Disclosure by Dealer "BMW000020 [l
page], and CARFAX Vehicle History Report dated 5/3/2011 "BMW000021 - BMW000024" [4
pages] are documents produced in the course and scope of discovery in the lawsuit and are a part
of the record in this cause of action, in the form of deposition testimony and/or deposition
exhibits and/or were produced by the parties in response to written discovery, and it is asserted
that they are further authenticated for all purposes by Texas law."
Further, Affiant sayeth not."
Appx. 28
"Exhibit 1" 434
. ..
.
0 I
!
Signed ~d Notmzed tltlk 31st day of July, 2014
i
attfll ..
Art Allen, President for i
/--
N~ State of Texas
~
Coastal Auto Enterprisesl Inc., Printed Name and Seal
General Partner of Defendant
Coastal Motor Cars, Ltd,. l
Appx. 29
"Exhibit 1" 435
JSPS.com® - USPS Tracking™ Page 1 of2
English USPS Mobil• Register I Slijn In
iit!IUSPS.COM. Search USPS.com or Track Packages Subl'
Quick Tools Ship a Pacl\age Send Mail Manage Your Mell Shop Business Solutions
~ Customer Service i
USPS Tracking™ ; '-XJ. Have questions? We're here to help. .,
--~·-·····------'----··--···- ....---------..---·-·-·"··-·-· ..---···--_]
......... - ....................... -.. - ........................ --··----··" -· -··-1
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Tracking Number: 70111150000088290993
Product & Tracking Information Available Actions
Postal Product: Features:
Certified Mall ..
CORPUS
June 17, 2014, 9:52 am Oelivered
CHRISTI, TX 78404
Your item was deliverod at 9:52 lllTI on June 17, 2014 In CORPUS CHRISTI, TX 78404.
CORPUS
June 16, 2014, 9:54 pm Departed USPS Fecitlty
CHRISTI, TX 78469
t:ORPUS
June 16, 2014, 12:10 pm Moved, Left no Address
CHRISTI, TX 78466
CORPUS
June 10, 2014 , 9:12 am Available for Pickup
CHRISTI, TX 78466
CORPUS
June 7, 2014 , 9:32 am Available for Pickup
CHRISTI, TX 78466
CORPUS
June 7, 2014, 9:32 am Available for Plekup
CHRISTI, TX 78466
Out for oenvery CORPUS
June 7, 2014 , 9:11 am
CHRISTI, TX 78411
June 7, 2014 , 9:01 am CORPUS
Sorting Complete
CHRISTI, TX 76411
June 7, 2014, 6:26 am Arrived at UnM CORPUS
CHRISTI, TX 78411
Jurni 6, 2014 , 9:22 pm ArrlVed at USPS Facility CORPUS
CHRISTI. TX 78469
Track Another Package
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"Exhibit A" Appx. 30
436
1ttps://tools.usps.com/go/TrackConfirmAction!input.action?tRef=qt&tLc=l&tLabels=7011115000... 7/31/2014
Filed
7/31/2014 7:16:37 PM
Patsy Perez
District Clerk
Nueces County, Texas
CAUSE NO. 2013-DCV-0520-F
MARY LOU BROWN and § IN THE DISTRICT COURT
I
MARY ALICE GARCIA, §
Plaintiffs §
§
vs. § 214TH DISTRICT COURT
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW of CORPUS CHRISTI §
Defendants § NUECES COUNTY, TEXAS
ORDER
On the I <3 day of.Se,``,l4C.3-014, came on to be heard and considered
Defendant's Motion For New Trial in the above styled and numbered cause, and this Court
hereby ORDERS that said Motion be GRANTED, that the order Granting Plaintiffs' Motion for
Swnmary Judgment and all relief granted therein, be· set aside and held for naught. Further that
upon notice of at least 21 days to Defendant's new counsel of record, another hearing on
Plaintiffs' Motion for Summary Judgment may be held.
SCANNED
SEP 2 5 2014
PATSY PEREZ, DISTRICT CLERK
NUECES COUNTY
Appx. 31
450
CAUSE N2 2013-DCV-0520-F
MARY ALICE GARCIA § IN THE DISTRICT COURT
AND MARY Lou BROWN §
§
§
§
vs. ,§ 214rH JUDICIAL DISTRICT
§
§
§
COASTAL MOTORCARS, LTD. D/B/A §
BMW OF CORPUS CHRISTI § NUECES COUNTY TEXAS
I
ORDER WITHDRAWING AND VACATING THE ORDER
GRANTING DEFENDANT'S MOTION FOR NEW TRIAL
On this date the Court considered Plaintiffs' Motion to Withdraw and Vacate the
Order Granting Defendant's Motion for New Trial filed in this cause. The Court, after
examining its file along with the motion and any response as well as considering any
evidence and the argument of counsel, is of the opinion and finds that Plaintiffs'
Motion is well taken, that Plaintiffs were not provided notice of any hearing that was
set for 8:30 a.m. on September 18, 2014, that Defendant's Motion for New Trial was
overruled by operation of law on September 15, 2014, and that good causes exists
to withdraw and vacate the Order Granting Defendant's Motion for New Trial that was
entered on September 18, 2014.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Order Granting
Defendant's Motion for New Trial that was entered on September 18, 2014 is
withdrawn and vacated.
SIGNED, ORDERED, AND ENTERED this 25" day of 4LL-, '2014.
w:\\garcia\vacate.ord
SCANNED
SEP 2 5 2014
Appx. 32
PATSY PEREZ, DISTRICT CLERK
NUECES COUNTY 459
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ATTORNEYS AT LAW
GASLIGHT SQUARE
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CORPUS CHRISTI, TEXAS 784()~
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Appx. 33
494
"·
Pcf:S 1/7<. S_r· r:)tc~ Ll<.::11(_/ o/ /·/y_):
.o:--"-:~ ;-c:c__--,.:::_--ococ-"-.:;.--::-"'"-~-, 1~-=·~--:8'C~-;=_:_,-""--"-'0-<."='-?``:-.:,3ci c'-'~,d"<=->; deletions by <<- Text ->>
Changes in tables are made but not highlighted.
CHAPTER 887
H.B. No. 2261
COURTS—CIVIL ACTIONS—ADDRESSES OF PARTIES
AN ACT relating to providing the court with certain information regarding a party in a civil action.
Be it enacted by the Legislature of the State of Texas:
SECTION 1. Chapter 30, Civil Practice and Remedies Code, is amended by adding Section 30.015 to read as follows:
<< TX CIV PRAC & REM § 30.015 >>
<<+Sec. 30.015. PROVISION OF CURRENT ADDRESS OF PARTY IN CIVIL ACTION. (a) In a civil action, each party
or the party’s attorney must provide the clerk of the court with written notice of the party’s name and current residence or
business address.+>>
<<+(b) The notice required by Subsection (a) may not be required from any party or party’s attorney if such party has not
appeared or answered in the civil action.+>>
<<+(c) The notice required by Subsection (a) must be provided at the time the party files its initial pleading with the court or
not later than the seventh day after the date the clerk of the court requests the information.+>>
<<+(d) If the party’s address changes during the course of a civil action, the party or the party’s attorney must provide the
clerk of the court with written notice of the party’s new address.+>>
<<+(e) If the party or the party’s attorney fails to provide the notice required by Subsection (a), the trial court may assess a
fine of not more than $50.+>>
<<+(f) It is a defense to a fine assessed under this section that the party or the party’s attorney could not reasonably obtain
and provide the information required by Subsection (a).+>>
<<+(g) Information provided to a clerk of a court under this section is confidential and may not be disclosed to the public
without the express authorization of the court.+>>
<< Note: TX CIV PRAC & REM § 30.015 >>
SECTION 2. This Act takes effect September 1, 1997, and applies only to suits filed on or after the effective date of this Act.
SECTION 3. The importance of this legislation and the crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in
each house be suspended, and this rule is hereby suspended.
Passed by the House on April 25, 1997, by a non-record vote; the House concurred in Senate amendments to H.B. No.
2261 on May 24, 1997, by a non-record vote; passed by the Senate, with amendments, on May 22, 1997, by a viva-voce
vote.
Approved June 18, 1997.
Effective September 1, 1997.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Appx. 68
COURTS—CIVIL ACTIONS—ADDRESSES OF PARTIES, 1997 Tex. Sess. Law Serv....
TX LEGIS 887 (1997)
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Appx. 69