Nationwide Coin and Bullion Reserve, Inc., Turner M. Jones, Lawrence Kuykendall, Larry Andrews, Donald Fogo and Melinda Jones v. June Thomas

Motion to Abate Denied; Affirmed in Part, Reversed in Part, Remanded, and
Opinion filed November 17, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00632-CV
NO. 14-19-00633-CV
NATIONWIDE COIN AND BULLION RESERVE, INC., TURNER M.
JONES, LAWRENCE KUYKENDALL, LARRY ANDREWS, DONALD
FOGO, AND MELIDA JONES, Appellants
V.
JUNE THOMAS, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause Nos. 2018-89093
OPINION
In this suit under the Texas Deceptive Trade Practices–Consumer Protection
Act (“the DTPA”),1 Plaintiff June Thomas sued Nationwide Coin and Bullion
1
See TEX. BUS. & COM. CODE ANN. §§ 17.41–.63.
Reserve, Inc. and four individuals associated with the company, alleging that the
defendants violated the DTPA in connection with her purchase of collectible coins
from Nationwide for investment purposes. Nationwide and the individual defendants
appeal the denial of their motion to compel arbitration, and in addition, Nationwide
appeals the denial of the summary judgment rendered against it. We conclude that
the appellants failed to establish, or to raise a fact question regarding, the existence
of an arbitration agreement, but Thomas failed to conclusively establish that
Nationwide violated the DTPA. We accordingly (1) affirm the trial court’s denial of
the motion to compel arbitration, (2) deny the appellants’ motion to abate the appeal
for an evidentiary hearing on the existence of an arbitration agreement, (3) reverse
the summary judgment against Nationwide, and (4) remand the case for further
proceedings.
I. BACKGROUND
In early 2017, Texas corporation Nationwide Coin & Bullion Reserve, Inc.
mailed Tennessee resident June Thomas a brochure advertising its collectible coins
as an investment opportunity. Thomas called the telephone number on the brochure,
and after speaking with Nationwide’s Texas agents, agreed to purchase some coins.
Between March and July of 2017, Thomas made nine purchases from Nationwide at
a total cost of $167,300. She also made three additional purchases of coins that she
resold to Nationwide for the amount she paid for them.
A year after her first purchase, Thomas called Nationwide to ask the company
to repurchase a “1987 Chinese Gold Panda Coin” she had bought from Nationwide
for $30,000. She spoke with Lawrence Kuykendall, who said he could not help her
with the sale of the coin. She found Kuykendall’s behavior suspicious and had her
friend Greg Marnane call the company. Marnane allegedly spoke with Nationwide’s
“compliance director” Donald Fogo. The day after Marnane’s call, Turner M. Jones
2
of Nationwide phoned Thomas and told her not to have Marnane call again. Jones
offered to buy back the Gold Panda Coin for $31,500 but told Thomas the deal would
be off if “any authorities” became involved.
About two weeks later, Thomas had her coin collection appraised by James
Miller. Miller concluded that, as of April 3, 2018, the collection’s wholesale value
was about $27,633 and its retail price would be somewhere between $35,295 and
$43,970.
Later that month, Nationwide’s attorney Todd Collins wrote to Thomas,
“[Nationwide] is ready and willing to purchase the [Chinese Gold Panda] coin, but
we will need you to sign the Purchase Agreement and return the coin in order to
conclude the sale.” The document enclosed with the letter was not a purchase
agreement, but a copy of an invoice showing that Thomas purchased and paid for
the coin on the same date. According to Nationwide’s chief financial officer Gina
Wells, the terms and conditions of the sale were printed on the back of the invoice.
These terms included an arbitration provision and a caution that Nationwide “does
not guarantee that any client buying for investment purposes will be able to sell for
a profit in the future.”
Thomas refused to sign the invoice and instead asserted claims under the
DTPA against Nationwide and its agents Turner M. Jones, Lawrence Kuykendall
(whom Thomas sued both under that name and under Kuykendall’s assumed name
of “Larry Andrews”), Donald Fogo, and Melida Ramirez a/k/a Melida Jones. We
refer to the individual defendants collectively as “the Jones Parties.”
Thomas moved for traditional summary judgment, and Nationwide and the
Jones Parties combined their response to the summary-judgment motion with their
own motion to compel arbitration. The parties disputed whether a valid arbitration
3
agreement existed, and without holding an evidentiary hearing, the trial court denied
the motion.
The same day that Nationwide and the Jones Parties filed their interlocutory
appeal of the order denying arbitration, the trial court granted Thomas’s summary-
judgment motion as to Nationwide, awarding Thomas $202,600 in actual damages2
and $405,200 as treble damages under the DTPA, together with interest and costs.
In the same order, the trial court severed Thomas’s claims against the Jones Parties
into a separate suit so that the summary judgment against Nationwide became final.
The record does not show that the trial court ruled on the summary-judgment motion
as it pertains to the Jones Parties.
Nationwide appealed the judgment against it, and we granted the parties’
motion to consolidate the two appeals. The Jones Parties joined Nationwide in
asking us to reverse the trial court’s denial of the motion to compel arbitration, and
Nationwide additionally argues that the trial court erred in granting Thomas
summary judgment and ordering Nationwide to pay her damages.
After the case was submitted on the briefs, Nationwide and the Jones Parties
moved to abate the appeal and remand the cases to the trial court for an evidentiary
hearing on the motion to compel arbitration. We ordered the motion taken with the
case.
II. DENIAL OF MOTION TO COMPEL ARBITRATION
In the trial court, a party seeking to compel arbitration bears the burden to
establish that an arbitration agreement exists and that the claims presented fall within
its scope. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (per
2
Although the judgment does not identify the injuries on which the damages were based,
Thomas had asked in her summary-judgment motion for $142,600 as economic damages and
$60,000 as mental-anguish damages.
4
curiam) (orig. proceeding), abrogated on other grounds by In re Halliburton Co., 80
S.W.3d 566 (Tex. 2002) (orig. proceeding). If there is conflicting evidence as to the
material facts necessary to determine the issue, the trial court is to conduct an
evidentiary hearing to resolve the dispute. In re Poly-Am., L.P., 262 S.W.3d 337,
354 (Tex. 2008) (orig. proceeding); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d
266, 269 (Tex. 1992). In an appeal from the denial of a motion to compel arbitration,
we apply the abuse-of-discretion standard, deferring to the trial court’s factual
determinations if they are supported by evidence and reviewing legal determinations
de novo. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018), cert. denied, 139
S. Ct. 184, 202 L. Ed. 2d 40 (2018). Before addressing the evidence, however, we
first must address Thomas’s arguments that the evidence cannot be considered.
A. Thomas’s Objections
The motion to compel arbitration rested entirely on the affidavit of Gina
Wells, to which were attached copies of invoices and of the “Terms and Conditions,”
which Wells attested appeared on the reverse of each invoice. The Terms &
Conditions include a section entitled “Arbitration Forum,” and provides that “All
claims and disputes arising under or relating to this Agreement are to be settled by
binding arbitration in the State of Texas, County of Harris.” In the opening paragraph
of the affidavit, the notary public states, “After being duly sworn, [Wells] stated that
that she has read this affidavit, has personal knowledge of the factual statements
contained herein, and that such factual statements are true and correct.”
Thomas objected to the following paragraphs of Wells’s affidavit:
5. There were numerous communications between Plaintiff and
Nationwide Coin regarding sales transactions. These communications
took place by telephone. These communications took place over
interstate phone lines. For each transaction, there was one or more
telephone communications by the sales person with Plaintiff, and then
5
a separate telephone communication by personnel in the Verification
Department with Plaintiff.
6. Prior to completing any of the sales transactions with Plaintiff,
Nationwide’s Verification Department contacted Plaintiff to review
Nationwide’s [Terms & Conditions]. More specifically, for each sales
transaction, Plaintiff was contacted by the Verification Department at
Nationwide via telephone. For each sales transaction, the Verification
Department specifically advised Plaintiff as to the location of the
[Terms & Conditions] on the reverse of the invoice, advised that the
transaction would only be made pursuant to the [Terms & Conditions],
and that if Plaintiff failed to agree to the [Terms & Conditions], the
transactions would not go forward. During each of these verification
calls, Plaintiff was specifically informed of the arbitration provision of
the [Terms & Conditions], as well as the risk involved. And, during
each of these verification calls, Plaintiff specifically agreed that the
transactions would be subject to Nationwide’s [Terms & Conditions].
8. Plaintiff never objected to the [Terms & Conditions] associated
with any of the transactions. Moreover, Plaintiff continued to purchase
coins subject to the [Terms & Conditions] on multiple occasions. In
total, Plaintiff entered into twelve (12) separate sales transactions with
Nationwide, each of which included the very same [Terms &
Conditions].
On appeal, Thomas re-urges her trial objections to Wells’s affidavit on the
grounds that Wells’s testimony (1) is not based on personal knowledge of the facts
recited, (2) is hearsay, (3) lacks a predicate, and (4) is conclusory. She also re-urges
her objection that the Terms & Conditions attached to the affidavit is
unauthenticated.
But, to preserve error for formal defects, one must both object and obtain a
ruling, or except to the trial court’s failure to rule. See Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 164 (Tex. 2018) (per curiam). The trial court did not rule on
Thomas’s objections, and Thomas did not except to the failure to rule. Her objections
to defects of form are therefore waived. See, e.g., Wash. DC Party Shuttle, LLC v.
iGuide Tours, 406 S.W.3d 723, (Tex. App.—Houston [14th Dist.] 2013, pet. denied)
6
(en banc) (lack of personal knowledge is a defect of form); Okpere v. Nat’l Oilwell
Varco, L.P., 524 S.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied) (hearsay is a defect of form); Ortega v. Cach, LLC, 396 S.W.3d 622, 628
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (insufficient foundation is a defect
of form); Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317
(Tex. 2012) (defects in the form of a document’s authentication are formal defects).
Because the trial court did not rule on the formal objections, they have not been
preserved for review, and we do not address them.
On the other hand, an objection that an affidavit is conclusory raises a defect
of substance, which can be raised for the first time on appeal. Pipkin v. Kroger Tex.
L.P., 383 S.W.3d 655, 670 (Tex. App.–Houston [14th Dist.] 2012, pet. denied). But,
a conclusory statement “expresses a factual inference without providing underlying
facts to support that conclusion.” Leonard v. Knight, 551 S.W.3d 905, 911 (Tex.
App.—Houston [14th Dist.] 2018, no pet.). For the most part, the paragraphs of
Wells’s affidavit to which Thomas objected do not express factual inferences; they
express facts. Thomas asserts that Wells’s statements are conclusory because, for
example, Wells and Thomas have never spoken and Wells does not name any person
as having spoken to Thomas. But, Thomas’s assertion is merely a restatement of her
objections that Wells lacked personal knowledge of the facts to which she attested
and failed to lay a sufficient foundation.
The sole exception is Wells’s statement, “Moreover, Plaintiff continued to
purchase coins subject to the [Terms & Conditions] on multiple occasions.” This is
Wells’s conclusion (which may or may not be correct), but it is not “conclusory,”
because Wells has identified the facts on which that conclusion is based.
We therefore include both Wells’s affidavit and its attachments in our scope
of review.
7
B. Existence of an Enforceable Arbitration Agreement
Over the course of this appeal, Nationwide and the Jones Parties have shifted
their views as to what the evidence shows. In their opening brief, they argued that,
under the Texas Arbitration Act (“the TAA”),3 they conclusively established that a
valid arbitration agreement exists, and that Thomas’s claims fall within its scope. In
their reply brief, they argued that the Federal Arbitration Act (“the FAA”)4 preempts
the TAA, and that under the FAA, they conclusively established that an arbitration
agreement exists. They also argued for the first time that if there is a fact issue about
whether the parties agreed to arbitration, then we must remand the case for the trial
court to conduct an evidentiary hearing. Finally, after the case was submitted,
Nationwide and the Jones Parties filed a motion to abate the appeal, arguing that an
evidentiary hearing is mandatory because the evidence does not conclusively
establish their right to arbitration but instead creates a question of fact about whether
an arbitration agreement exists. We accordingly address the threshold questions of
whether the evidence is sufficient to raise a question of fact about the existence of
an arbitration agreement enforceable under either the TAA or the FAA. If not, then
Nationwide and the Jones Parties are entitled neither to reversal of the trial court’s
order denying arbitration nor to an evidentiary hearing, and we instead will affirm
the trial court’s ruling.
1. The evidence fails to raise a question of fact regarding the existence
of an agreement enforceable under the TAA.
By its terms, the TAA “ does not apply to . . . an agreement for the acquisition
by one or more individuals of property . . . in which the total consideration to be
furnished by the individual is not more than $50,000” unless the arbitration
3
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.001–.098.
4
See 9 U.S.C. §§ 1–16.
8
agreement is in writing and “the agreement is signed by each party and each party’s
attorney.” TEX. CIV. PRAC. & REM. CODE ANN. § 171.002(a)(2), (b). Each of
Thomas’s purchases was for less than $50,000, but it is undisputed that there is no
written arbitration agreement signed by Thomas and her counsel. Thus, an
enforceable agreement to arbitrate exists, if at all, only under the FAA.
This is not to say that the FAA preempts the TAA’s application based solely
on the fact that the TAA imposes signature requirements that the FAA does not. The
FAA preempts the TAA only if state law would “refuse to enforce an arbitration
agreement that the FAA would enforce, either because (1) the TAA has expressly
exempted the agreement from coverage, . . . or (2) the TAA has imposed an
enforceability requirement not found in the FAA.” In re D. Wilson Constr. Co., 196
S.W.3d 774, 780 (Tex. 2006) (orig. proceeding) (citations omitted, emphasis added).
We therefore next determine whether an enforceable arbitration agreement exists
under the FAA.
2. The evidence fails to raise a question of fact regarding the existence
of an agreement enforceable under the FAA.
The FAA provides that “[a] written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation
of any contract.” 9 U.S.C. § 2. The arbitration provision on which Nationwide and
the Jones Parties rely appears only on the back of the invoice provided to Thomas
after each transaction was completed. As explained in Hatch v. Jones—a case that
is virtually indistinguishable from this one—this is insufficient to create a binding
agreement to arbitrate. See Hatch v. Jones, 4:18-CV-4146, 2019 WL 6137389, at *4
9
(S.D. Tex. Oct. 30, 2019), report and recommendation adopted, 2019 WL 6135119(S.D. Tex. Nov. 15, 2019).
The plaintiff in that case sued Nationwide and three of the four Jones Parties
based on evidence that is nearly identical to the evidence presented here. There, as
here, Nationwide, Jones, Kuykendall, and Ramirez sought to compel arbitration
based on the affidavit of Gina Wells and “on the Terms & Conditions that appear on
the back of the invoice/packing slip that was included in each shipment of coins.”
Hatch, 2019 WL 6137389, at *1. There, as here, Wells attested that the plaintiff
agreed to the terms and conditions by phone. The Hatch court pointed out, however,
that under Texas law, “an order or other offer to buy goods for prompt or current
shipment shall be construed as inviting acceptance either by a prompt promise to
ship or by the prompt or current shipment of conforming or non-conforming goods.”
Id. at *4 (quoting TEX. BUS. & COM. CODE ANN. § 2.206(a)(2)). “Additional terms
are construed as proposals for addition to the contract.” Id. (quoting U.S. Money
Reserve, Inc. v. Kagan, No. 18-CV-577, 2019 WL 1313469, *3 (W.D. Tex. Jan. 29,
2019)) (alteration in original) (citing TEX. BUS. & COM. CODE ANN. § 2.207(b)).
Thus, the Hatch court concluded that “the sales contract was formed upon the
promise to ship, or at the latest the shipment of, the coins for each transaction.” Id.
Including an arbitration provision in the invoices sent to the purchaser after the
contract was formed was insufficient to bind the purchaser. Id. at *4; See also
Stewart & Stevenson, LLC v. Galveston Party Boats, Inc., No. 01-09-00030-CV,
2009 WL 3673823, at *7–9 (Tex. App.—Houston [1st Dist.] Nov. 5, 2009, no pet.)
(mem. op.).
To avoid this result, Nationwide and the Jones Parties cite a number of cases
addressing circumstances in which an arbitration agreement was held to bind a non-
signatory. But, the general rule is that parties must sign arbitration agreements to be
10
bound by them. See, e.g., In re Rubiola, 334 S.W.3d 220, 224 (Tex. 2011) (orig.
proceeding). The question of whether the agreement must be signed is one of intent.
Huckaba v. Ref-Chem, L.P., 892 F.3d 686, 689–90 (5th Cir. 2018). “If a written draft
of an agreement is prepared, submitted to both parties, and each of them expresses
his unconditional assent thereto, there is a written contract.” Phillips v. Carlton
Energy Group, LLC, 475 S.W.3d 265, 277 (Tex. 2015); Simmons & Simmons
Constr. Co. v. Rea, 155 Tex. 353, 357–58, 286 S.W.2d 415, 418 (1955). Here,
however, there is no evidence that a written contract was submitted to Thomas before
both parties had performed the contract.
On the other hand, there is evidence that Nationwide and its agents considered
Thomas’s signature necessary. Cf. ABB Kraftwerke Aktiengesellschaft v.
Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 292 (Tex. App.—Corpus Christi
2003, pet. denied) (“As long as the parties give their consent to the terms of the
contract, and there is no evidence of an intent to require both signatures as a
condition precedent to it becoming effective as a contract, signatures are not a
required.”). When Nationwide and Thomas were discussing Nationwide’s
repurchase of the 1987 Chinese Gold Panda Coin, Nationwide’s counsel wrote to
Thomas as follows:
My understanding is you and [Nationwide] agreed several weeks ago
that [Nationwide] would repurchase a 1987 Chinese Gold Panda coin
for $31,500.00. The coin is more specifically described in the attached
invoice . . . .
[Nationwide] is ready and willing to purchase the coin, but we will need
you to sign the Purchase Agreement and return the coin in order to
conclude the sale.
The “Purchase Agreement” was merely the invoice with the Terms & Conditions on
the reverse, and Thomas refused to sign it. Thomas’s evidence that Nationwide’s
11
counsel asked her to sign the Terms & Conditions, and that she refused to do so, is
uncontroverted.
On this record, we cannot conclude that the trial court abused its discretion in
denying the motion to compel arbitration. Because there is evidence only of an oral
agreement, and of Thomas’s later refusal to enter into a written agreement to
arbitrate, the trial court could decide the issue summarily, without holding an
evidentiary hearing.
We accordingly overrule Nationwide’s and Jones Parties’ common issue, and
we deny their joint motion to abate the appeal for an evidentiary hearing.
III. SUMMARY JUDGMENT
We turn now to Nationwide’s appeal of the summary judgment rendered
against it. We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d
313, 316 (Tex. 2019) (citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009)). A party seeking traditional summary judgment
bears the burden to prove that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort,
289 S.W.3d at 848. To determine if the movant met this burden, we consider the
evidence in the light most favorable to the non-movant, indulging every reasonable
inference in favor of the non-movant, and resolving any doubts against the motion.
City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
Thomas asserted three “laundry-list” claims under section 17.46(b) of the
DTPA and one claim for unconscionability. See Helena Chem. Co. v. Wilkins, 47
S.W.3d 486, 501 (Tex. 2001) (“Section 17.46(b) is a laundry list of specifically
prohibited acts.”). She moved for summary judgment on all four claims. Because
12
Thomas’s first two laundry-list claims both concern deception through affirmative
misrepresentations, we address them together.
A. Affirmative Misrepresentations
Under the DTPA, prohibited “false, misleading, or deceptive acts or practices”
include “representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not have or
that a person has a sponsorship, approval, status, affiliation, or connection which the
person does not” and “representing that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model, if they are of
another.” TEX. BUS. & COM. CODE ANN. § 17.46(b)(5), (b)(7). In her summary-
judgment motion, however, Thomas does not identify any false statements about the
coins’ “sponsorship, approval, characteristics, ingredients, uses, benefits, or
quantities,” or any false representations about the standard, quality, grade, style, or
model of the coins. The only representations to which she refers are those described
below.
First, Thomas described an unsolicited brochure she received from
Nationwide in the mail. In the brochure, Nationwide advertised “A Golden
Opportunity” to purchase “$5 Gold American Eagles,” which Nationwide described
as “the most sought after and profitable group of coins in American history.”
Nationwide made an “Exclusive At Cost Offer” to sell its “Very Limited Supply” of
these coins for $115 each. There is no evidence any of these statements were
inaccurate. Thomas’s own evidence showed that she bought five of these coins, and
when they were appraised in April 2018, the least valuable of them had a retail value
of $150–$255, which is more than the price at which the coins were offered for sale
in the brochure. She produced no evidence that the brochure’s representations about
the “$5 Gold American Eagles” were false.
13
Second, Thomas attested that “[Nationwide and its employees] told me that I
should expect to be able to sell [the coins] for more than for [sic] what I purchased
them soon, if not immediately.” But, Thomas’s only evidence of the coins’ value
was an appraisal performed a year later. An appraisal from this later date does not
conclusively establish that Thomas could not have profitably sold the coins “soon”
or “immediately” after she purchased them. Cf. Enzo Invs., L.P. v. White, 468
S.W.3d 635, 647 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (affirming
judgment notwithstanding the verdict because the business-valuation expert opined
on the business’s value as of the wrong date).
Third, Thomas related that “[o]n several occasions, [Nationwide] and its
employees assured [her] their coins were a much better investment than traditional
savings or investment accounts.” Nationwide produced evidence that it repurchased
three coins that Thomas asked it to, and offered to repurchase a fourth coin at a
higher price. Thus, there is at least a question of fact as to whether the coins were a
“better investment.”
Fourth, Thomas stated that “[o]n several occasions, [Nationwide] and its
employees suggested that I mortgage my home to buy more coins from them.” This
is a mere statement of opinion, not an actionable statement of fact. There is no
evidence that the suggestion was inaccurate, or that Thomas acted on the suggestion,
or that the mere making of the suggestion damaged her in any way. Moreover, such
suggestions are not representations about Nationwide’s “goods or services” so as to
be encompassed by sections 17.46(b)(5) or (b)(7) of the DTPA as alleged.
Fifth, Thomas attested that in early March 2018 she spoke to Kuykendall at
Nationwide about repurchasing the “1987 Chinese Gold Panda Coin” she purchased
from Nationwide for $30,000 in 2017. She stated, “When I told Larry that I wanted
[Nationwide] to buy-back the coin, the tone of the conversation changed. Larry cried
14
on the phone discussing a death and problems with his mother and that he could not
help with the sale at that time.” Once again, there is no evidence that the statement
was false. Moreover, Thomas admits that on March 20, 2018, Turner Jones of
Nationwide telephoned her and offered to repurchase the coin for the full $30,000
Thomas paid for it “and offered [her] an additional $1,500.00 for my trouble. Jones
also stated that if ‘any authorities got involved the deal would be off.’” Thomas
rejected the offer, and she did not accept the written offer from Nationwide’s counsel
a month later to repurchase the coin. Thomas further stated that Jones also told her
that “[Nationwide]/he would buy back the rest of the coins but that [Thomas] would
have to wait five years to recoup all [her] money.” But, again, these statements do
not establish that Nationwide’s representations about the coins at the time of sale
were inaccurate. Moreover, Thomas herself cannot identify whether Jones’s offer to
purchase Thomas’s entire collection and pay for it over a period of five years was
made on his own behalf or on behalf of Nationwide.
Sixth, Thomas states several times in her affidavit that Nationwide and its
employees “convinced” her of various things, but she does not identify what actually
was said, so there is no way to determine whether Nationwide’s statements were
inaccurate.
In sum, Thomas failed to satisfy her burden as the summary-judgment movant
to conclusively establish that Nationwide misrepresented the coins’ characteristics,
ingredients, uses, benefits, quantities, standard, quality, grade, style, or model. See
TEX. BUS. & COM. CODE ANN. § 17.46(b)(5), (b)(7). We accordingly reverse the
summary judgment as to her claims under these statutory provisions.
B. Failure to Disclose
In her remaining laundry-list claim, Thomas alleged that Nationwide and the
Jones Parties violated the DTPA’s prohibition against “failing to disclose
15
information concerning goods or services which was known at the time of the
transaction if such failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have entered had the
information been disclosed.” Id. §17.46(b)(24). But, again, Thomas does not identify
what information about the coins Nationwide or the Jones Parties failed to disclose.
It appears to be Thomas’s position that, at the time of her purchases,
Nationwide misrepresented the coins’ value, but her only evidence of the coins’
value is an appraisal performed a year later. Thomas produced no evidence of the
coins’ market value at the time of purchase.
Viewing the evidence in the light most favorable to the non-movants, we
conclude that Thomas failed to conclusively establish that Nationwide or the Jones
Parties failed to disclose material information concerning the coins with the intent
to induce Thomas into a transaction that she would not otherwise have entered. We
therefore reverse the summary judgment as to this claim.
C. Unconscionability
Thomas’s remaining DTPA claim is for unconscionability. The DTPA
provides that a consumer may maintain an action if “any unconscionable action or
course of action by any person” is “a producing cause of economic damages or
damages for mental anguish.” Id. § 17.50(a)(3). An “‘[u]nconscionable action or
course of action’ means 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.”). Id. § 17.45(5).
But, as with her claim of failure to disclose, Thomas’s unconscionability claim
is unsupported by evidence. Thomas contends that Nationwide caused her damages
“the moment she bought the first coins” because Nationwide sold her the coins “at
16
grossly inflated prices”; however, there is no evidence of any coin’s market value at
the time of sale. There is evidence of the coins’ value a year after Thomas purchased
them, but we cannot infer the coins’ value at the time of purchase from that evidence
because Thomas was the summary-judgment movant, and thus, all inferences must
be drawn in Nationwide’s favor.
We sustain the first issue in Nationwide’s separate appeal. Because Thomas
failed to conclusively establish that Nationwide is liable to her under the DTPA, we
reverse the summary judgment in Thomas’s favor without addressing Nationwide’s
remaining issues.
IV. CONCLUSION
Having considered the evidence concerning Nationwide and the Jones Parties’
motion to compel arbitration and Thomas’s traditional motion for summary
judgment under the standard of review applicable to each, we conclude that none of
the movants satisfied their respective burdens. Thus, we affirm the order denying the
motion to compel arbitration, reverse the order granting summary judgment, and
remand the case to the trial court for further proceedings consistent with this opinion.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jewell, and Hassan.
17