Opinion
No. 14-06-00055-CV.
Judgment rendered and Opinion filed January 25, 2007.
On Appeal from the County Court at Law No. 1 and Probate Court Brazoria County, Texas, Trial Court Cause No. CI031973.
Panel consists of Chief Justice HEDGES and Justices YATES and SEYMORE.
OPINION
Appellant BDB Interests, L.C., doing business as Gulf Coast Nissan and Steve Blanchard Nissan ("Gulf Coast"), appeals from a summary judgment granted in favor of Arcadia Financial Ltd. ("Arcadia") for breach of contract. Gulf Coast claims no evidence exists that Gulf Coast breached its contract with Arcadia or that an alleged breached caused Arcadia damages. We reverse and remand.
I. Factual and Procedural Background
Gulf Coast, a car dealer, entered into a "Master Dealer Agreement" ("MDA") with Arcadia, a financing company, under which Gulf Coast agreed to assign retail sales installment contracts arising from car sales ("Customer Obligations") to Arcadia. Under certain circumstances outlined in the MDA, however, Arcadia could demand Gulf Coast to repurchase Customer Obligations. This appeal concerns a breach of contract action by Arcadia against Gulf Coast for failure to repurchase a Customer Obligation under the MDA.
On September 3, 2002, Robert C. Jackson and his wife, Sarah M. Jackson, acting as his attorney-in-fact under a durable power of attorney, purchased a car from Gulf Coast ("Jackson contract"). Mr. Jackson was not present during this transaction. Mrs. Jackson financed the car, and, in its role as an agent for Servco Life Insurance Company ("Servco"), Gulf Coast included in the financing agreement an option to purchase credit life insurance that would cover any remaining payments on the vehicle if the policyholder died. Mrs. Jackson chose to purchase the insurance in Mr. Jackson's name for $1,098.61, which Gulf Coast added to the sale price and included in calculating payments under the financing agreement. Though the record contains no copy of the Servco insurance policy, the parties appear to agree the policy had a sixty-five-year age limit, and they do no dispute that Mr. Jackson was seventy-three years old at the time of the purchase. Mrs. Jackson testified that Gulf Coast never mentioned an age limit for the policy or that her husband may have exceeded such limit. Gulf Coast does not dispute this claim but maintains Mrs. Jackson withheld her husband's age. Mrs. Jackson asserts that during the closing, she gave Gulf Coast a copy of Mr. Jackson's Texas driver's license. Gulf Coast admits it had possession of the license but claims it did not realize during the closing that Mr. Jackson exceeded the age limit for the policy. Mrs. Jackson never received a copy of a credit life insurance policy. After the closing, pursuant to the MDA, Gulf Coast assigned the Jackson contract to Arcadia. In return, Arcadia paid Gulf Coast the required consideration under the MDA, including the amount earmarked for the insurance.
Gulf Coast offers no proof in support of this contention and in the trial court claimed such issue "is relevant . . . only in that Mrs. Jackson held a durable power of attorney for her husband, Robert."
On November 19, 2002, less than three months after the sale, Mr. Jackson died from "Advanced Alzheimer's" disease. On November 30, 2002, without notifying Mrs. Jackson, Gulf Coast made out a check to Arcadia refunding the $1,098.61 premium for Mr. Jackson's insurance policy. The following month, on December 2 or 3, 2002, Mrs. Jackson went to Gulf Coast to collect on the insurance policy. According to Mrs. Jackson, the finance manager at Gulf Coast informed her for the first time that no policy ever issued for Mr. Jackson because he exceeded the policy's age limit. Gulf Coast concedes it never forwarded the premium to an insurance company to pay for a policy on Mr. Jackson. Mrs. Jackson also claims the finance manager said she would send the insurance premium back to Arcadia. After her visit to Gulf Coast, Mrs. Jackson said she repeatedly contacted Gulf Coast to confirm whether the finance manager had in fact sent the premium to Arcadia, but Gulf Coast employees "put [her] off many, many times." According to Mrs. Jackson, Gulf Coast failed to notify her it had sent the insurance premium to Arcadia or otherwise had not sent the premium to the insurance company to purchase the policy. Arcadia received the refund check on February 4, 2003 and applied the amount to reduce the principle balance on Mrs. Jackson's account.
Mrs. Jackson continued making payments to Arcadia through September 2003 but subsequently defaulted. In February 2004, Arcadia informed Gulf Coast that, according to its records, Mrs. Jackson had purchased a credit life insurance policy from Servco, but such policy had been cancelled because Mr. Jackson exceeded the age limit. Arcadia said Mrs. Jackson repeatedly told its representatives that Servco never contacted her in writing to inform her it cancelled the policy, and, as a result, she refused to make further payments on the Customer Obligation. Arcadia therefore demanded under the MDA that Gulf Coast repurchase the Jackson contract, alleging the following circumstances in the MDA had occurred: (1) the car buyer asserted a valid claim or defense against Arcadia that the buyer could assert against Gulf Coast, (2) certain warranties Gulf Coast made to Arcadia under the MDA proved untrue, and/or (3) Gulf Coast took, or failed to take, action affecting the validity or enforceability of the Jackson contract in the reasonable judgment of Arcadia.
After Gulf Coast refused to repurchase the Jackson contract, Arcadia sued Gulf Coast for breach of the MDA under the above provisions. Gulf Coast filed a no-evidence motion for summary judgment, alleging Arcadia put forth no evidence of breach or damages. Arcadia responded with a traditional motion for partial summary judgment, contending no fact issues existed on the issues of breach and damages. The trial court denied Gulf Coast's no-evidence summary judgment and granted Arcadia's summary judgment without specifying any grounds.
Gulf Coast now contends the trial court erred in granting summary judgment for Arcadia because no evidence exists that Gulf breached the MDA or that Arcadia incurred any damages as a result of Gulf Coast's alleged breach.
II. Standard of Review
The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant must conclusively establish all essential elements of his cause of action as a matter of law to be entitled to summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant's favor. See id.
When the trial court does not specify the basis for its summary judgment, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). In other words, the appealing party must show each independent ground alleged is insufficient to support the summary judgment granted. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
Gulf Coast complains only that the trial court erred in granting Arcadia's summary judgment and fails to complain that the court denied its own motion. Accordingly, Gulf Coast has failed to preserve error on this issue, and, upon a finding of reversible error, we cannot render judgment for Gulf Coast, but can only remand the entire case to the trial court. See W. Indem. Ins. Co. v. Am. Physicians Ins. Exch., 950 S.W.2d 185, 191 (Tex.App.-Austin 1997, no writ); Pine v. Salzer, 824 S.W.2d 779, 780 (Tex.App.-Houston [1st Dist.] 1992, no writ); see also Judge David Hittner Lynne Liberato, Summary Judgments in Texas, 47 S. TEX. L. REV. 409, 493 (2006).
III. Analysis
The elements in a breach of contract claim include: (1) the existence of a valid contract, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff was damaged as a result of the breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The parties do not dispute the existence of a valid contract or performance. Gulf Coast argues, rather, no evidence exists that it breached the MDA by failing to repurchase the Jackson contract or that Arcadia suffered any damages from an alleged breach. Arcadia responds that there is "ample evidence . . . that Gulf Coast made misrepresentations to Arcadia regarding the purchase of a credit life policy with the premium financed by Arcadia, and direct evidence that this misrepresentation resulted in a breach of the [MDA]. We address the breach and damages elements in turn.
A. Breach of Contract
Section 6 of the MDA enumerates various circumstances under which Gulf Coast must repurchase Customer Obligations from Arcadia. In its motion, Arcadia claimed Gulf Coast breached its obligation to repurchase the Jackson contract after the circumstances in sections 6(b), (c), and (d) occurred. We must determine whether one of these provisions constitutes a proper basis for the trial court to have granted summary judgment for breach of contract. See Joe, 145 S.W.3d at 157.
1. Section 6(b)
Section 6(b) requires Gulf Coast to repurchase a Customer Obligation if:
A Buyer (as defined on a Customer Obligation) or any person obligated on a Customer Obligation asserts a valid claim or defense against Arcadia which such person could assert against the Dealer as the seller of the goods and services obtained pursuant to the Customer Obligation or the goods or services obtained with the proceeds from the Customer Obligation. . . .
(emphasis added). Arcadia does not point to and we find no summary judgment evidence indicating that Mr. or Mrs. Jackson, or any other person potentially obligated on the contract, filed a claim or defense against Arcadia. The evidence shows only that Mrs. Jackson defaulted on her payments to Arcadia. Moreover, even if Mrs. Jackson's default somehow constitutes an assertion of a defense, the evidence does not show such defense is "valid" as a matter of law. Therefore, according to the plain language of the contract, we hold that summary judgment for breach of contract under Section 6(b) would have been improper. See Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985) ("Language used by parties in a contract should be accorded its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated.").
2. Section 6(c)
Section 6(c) requires repurchase of a Customer Obligation if "[a]ny representation or warranty made by the Dealer, including those contained in Section 5, with regard to such Customer Obligation, proves to be untrue in any material respect." We address each Section 5 warranty raised by Arcadia.
a. Section 5(b) Warranties
Section 5(b) provides, "Each Customer Obligation is and shall remain free from defenses except as otherwise provided by law. . . ." After recounting Gulf Coast's conduct during the sales process in its motion for summary judgment and briefs to this court, Arcadia alleges Gulf Coast breached Section 5(b). However, Arcadia fails to assert which defenses Mrs. Jackson or another party has or may raise. The only defense we find in the record to which Arcadia could implicitly refer is Mrs. Jackson's cross-claim against Gulf Coast for fraud in response to Gulf Coast's third-party petition against her in this lawsuit. Fraud constitutes a contract defense under Texas law. See Formosa Plastics Corp. USA v. Presidio Eng'rs Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998) ("[A] party is not bound by a contract procured by fraud."); Dennis v. Galbreth, 228 S.W.2d 579, 581 (Tex.Civ.App.-Fort Worth 1950, no writ) ("[F]raud is a defense which is cognizable . . . and annuls all contracts infected with it. . . .). Yet in its motion for summary judgment, Arcadia did not set forth any evidence of Mrs. Jackson's fraud claim nor did it allege with any specificity that Mrs. Jackson or other party could raise fraud or another defense in the future. See TEX. R. CIV. P. 166a(c) (stating trial court shall grant summary judgment where competent evidence "referenced or set forth in the motion or response" shows there is no genuine issue as to any material fact); Lawrence v. Lawrence, 911 S.W.2d 443, 446 (Tex.App. — Texarkana 1995, writ denied) ("The reviewing court is to consider only the evidence before the trial court at the time of the summary judgment motion hearing."). Further, though the pleadings underlying Mrs. Jackson's fraud claim were on file with the trial court at the time of the summary judgment hearing, Arcadia never pointed out such pleadings to the trial court, and, even had it done so, these pleadings in themselves do not constitute competent summary judgment evidence on which Arcadia may rely. See TEX. R. CIV. P. 166a(c); Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) ("Generally, pleadings are not competent evidence, even if sworn or verified."); Garner v. Long, 106 S.W.3d 260, 268 (Tex.App.-Fort Worth 2003, no pet.) (holding that pleadings filed in trial court by movant for summary judgment did not constitute competent evidence on which non-movant could rely to show material fact issues existed precluding summary judgment). Accordingly, we hold that Arcadia failed to meet its burden of proof in showing a breach of contract under Section 5(b) as a matter of law, and summary judgment on such ground would have been improper.
b. Section 5(k) Warranties
Section 5(k) provides, "The Buyer and any Co-Buyer and Guarantor, each has legal capacity to contract and the Customer Obligation is legal, valid and enforceable against the Buyer and any Co-Buyer and Guarantor. . . ." Arcadia contends Gulf Coast breached the warranties in Section 5(k), but it fails to explain in concrete terms why either Mr. or Mrs. Jackson lacked legal capacity to contract. The only evidence we find that may establish a breach under Section 5(k) is the disputed fact that Mr. Jackson later re-signed all the closing documents in his individual capacity. The parties do not dispute that Mr. Jackson was not present during the closing. Nor do the parties differ over whether Mrs. Jackson at least initially signed Mr. Jackson's name on the "Buyer" lines of the closing documents pursuant to the durable power of attorney and signed her own name on the "Co-Buyer" lines. However, Mrs. Jackson testified that, at some point after she closed the deal, her husband went to Gulf Coast and re-signed all the documents in his individual capacity as the "Buyer," although she did not explain why he did so. Gulf Coast, on the other hand, maintains, "Though the contract bears the names of both Robert and Sarah Jackson, we dealt only with Sarah Jackson." Whether Mr. Jackson signed in his individual capacity or through Mrs. Jackson as his attorney-in-fact proves relevant to the issue of legal capacity because Mrs. Jackson admitted her husband had been diagnosed with dementia at the time of the closing, and he eventually died from Alzheimer's disease.
Regarding durable powers of attorney, the Texas Probate Code states:
All acts done by an attorney in fact or agent pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal's successors in interest as if the principal were not disabled or incapacitated.
TEX. PROB. CODE ANN. § 484 (Vernon 2003) (emphasis added). "An appointment of an attorney-in-fact creates an agency relationship." Tyler v. State, 137 S.W.3d 261, 266 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Generally, "[a]n agent acting within the scope of her apparent authority binds a principal as though the principal herself had performed the action taken." Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984) (emphasis added). Neither Gulf Coast nor Arcadia challenge Mrs. Jackson's initial signing of the papers for her husband as exceeding the scope of her authority as attorney-in-fact under Mr. Jackson's power of attorney. Therefore, if Mrs. Jackson's initial signature of Mr. Jackson's name controls, he became legally bound as the "Buyer" on the contract as though he had signed the papers and "as if [he] were not disabled or incapacitated," and no breach of Section 5(k) is apparent. See TEX. PROB. CODE ANN. § 484; Ames, 672 S.W.2d 450. In contrast, if Mr. Jackson later re-signed the documents in his individual capacity, it becomes less clear whether the "Buyer" on the Customer Obligation had legal capacity to contract under Section 5(k), given his diagnosis of dementia. See In re Estate of Robinson, 140 S.W.3d 782, 793B94 (Tex.App.-Corpus Christi 2004, pet. denied) (noting that whether party has mental capacity to contract is generally a fact question); Fox v. Lewis, 344 S.W.2d 731, 739 (Tex.Civ.App.-Austin 1961, writ ref'd n.r.e.) (same). Accordingly, because fact issues remain over whether Mr. Jackson signed the contract individually or through his wife as attorney-in-fact, and thus whether the "Buyer" in the Customer Obligation had legal capacity to contract, summary judgment for breach of contract under Section 5(k) would have been improper.
c. Section 5(o) Warranties
Section 5(o) provides, "The Buyer is not acting on behalf of or for the benefit of another when purchasing the property. . . ." A review of the summary judgment record reveals no evidence showing the "Buyer" acted on behalf or for the benefit of another when purchasing the car. This is true irrespective of the capacity in which Mr. Jackson's signature appeared on the documents. If Mrs. Jackson in fact signed his name under the power of attorney, the law presumes Mr. Jackson himself signed as the Buyer without incapacity, and no evidence suggests he did so on behalf or for the benefit of another party. See Ames, 672 S.W.2d 450. If Mr. Jackson in fact went to Gulf Coast and re-signed the documents in his individual capacity, he acted only for himself; Arcadia presented no evidence otherwise. Therefore, we hold that summary judgment for breach under Section 5(o) would have been improper.
3. Section 6(d)
Section 6(d) calls for repurchase of a Customer Obligation where A[t]he Dealer has taken or takes any action or fails to take any action of any kind which affects the validity or enforceability of the Customer Obligation in the reasonable judgment of "cadia." The summary judgment evidence suggests Gulf Coast agreed to procure credit life insurance for Mr. Jackson, which gave rise to various common-law duties, breach of which could have affected the validity or enforceability of the Jackson contract. Though Gulf Coast only admits serving as an agent for Servco, under Texas law, one can act as the agent both of the insurer and the insured. See McKillip v. Employers Fire Ins. Co., 932 S.W.2d 268, 270 (Tex.App.-Texarkana 1996, no writ); Don Chapman Motor Sales, Inc. v. Nat'l Sav. Ins. Co., 626 S.W.2d 592, 597 (Tex.App.-Austin 1981, writ ref'd n.r.e.). "This dual role requires the agent to collect the premium from the insured, deliver the policy for the carrier, and procure insurance for the insured from the carrier." McKillip, 932 S.W.2d at 270. A creditor or insurance agent may undertake to procure insurance by an express agreement between the parties or by an obligation imposed in a financing agreement. Wesson v. Jefferson Sav. Loan Ass'n, 641 S.W.2d 903, 905 n. 1 (Tex. 1982). "It is established in Texas that an insurance agent who undertakes to procure insurance for another owes a duty to a client to use reasonable diligence in attempting to place the requested insurance and to inform the client promptly if unable to do so." May v. United Serv. Ass'n of Am., 844 S.W.2d 666, 669 (Tex. 1992). "A suit will lie for a breach of the obligation to procure insurance." O.R. Mitchell Motors, Inc. v. Joe Marotta Sons, Inc., 358 S.W.2d 741, 743 (Tex.Civ.App.-San Antonio 1962, no writ); see also Jack Criswell Lincoln Mercury, Inc. v. Tsichlis, 549 S.W.2d 255, 258 (Tex.Civ.App. — Beaumont 1977, no writ) (noting that breach of duties accompanying agreement to procure insurance gives rise to both breach of contract and tort claims). Moreover, "[t]he failure of an agent . . ., even after the exercise of reasonable diligence to procure insurance, to notify the insured of the agent's inability to obtain insurance, will likewise impose liability upon [the agent]." Powell v. Narried, 463 S.W.2d 43, 45 (Tex.Civ.App.-El Paso 1971, writ ref'd n.r.e.). Liability may be imposed where an agent induces a customer to rely on his performance of the undertaking to procure insurance, and the customer reasonably but detrimentally assumes such insurance covered the risk causing the loss. May, 844 S.W.2d at 669.
We find the present case analogous to Mitchell Motors, where the court held a car dealer breached its agreement to procure credit life insurance for a car buyer by failing to use reasonable diligence to procure a policy and failing to promptly notify the buyer of its inability to do so. 358 S.W.2d at 742B43. There, the court found the dealer agreed to procure credit life insurance for the buyer by explicitly adding an insurance premium to the sales price of the car, which the dealer factored into the financing payments. Id. at 742; see also G.F.C. Corp. v. Williams, 231 S.W.2d 565, 568 (Tex.Civ.App. — Dallas 1950, no writ) (holding that lender's inclusion of insurance premium in car note constituted agreement to procure insurance); Wesson, 641 S.W.2d at 905 (approving G.F.C. Corp.'s reasoning); Parsons v. Watley, 492 S.W.2d 61, 63B64 (Tex.Civ.App.-Eastland 1973, no writ) (holding that car dealer's offer in car note to procure credit life insurance coupled with acceptance by car buyer's signature on insurance provision constituted agreement to procure insurance). However, the dealer failed to procure the insurance, never told the buyer of such failure, and the financing company to which the dealer assigned the sales contract simply applied the insurance premium to the balance on the buyer's account. Mitchell Motors, 358 S.W.2d at 742B43.
Here, Gulf Coast agreed to procure credit life insurance for Mrs. Jackson by offering her the option to purchase the insurance in the financing agreement, accepting her payment for the insurance, and factoring such amount into her financing payments. However, unlike Mitchell Motors, several fact issues remain which preclude a finding that Gulf Coast breached such an agreement as a matter of law and thus took, or failed to take, action affecting the validity or enforceability of the Jackson contract under MDA Section 6(d). First, aside from Mrs. Jackson's testimony and the closing documents themselves, the summary judgment record is devoid of evidence describing the exact representations Gulf Coast made to Mrs. Jackson during the sales process. Second, the evidence is unclear as to whether Gulf Coast used reasonable diligence in attempting to procure the insurance. The evidence does not reveal whether Gulf Coast ever attempted to contact Servco or another insurance company to secure a policy. Gulf Coast admitted only that it never forwarded the premium to Servco or other insurance companies. Third, the record before us in inadequate to determine as a matter of law whether Gulf Coast promptly notified Mrs. Jackson of its inability to procure the insurance. Gulf Coast first told Mrs. Jackson no policy had issued when she came to the dealership, which occurred over two months after she bought the car and almost two weeks after her husband died. However, though Gulf Coast apparently knew Mr. Jackson failed to qualify for the insurance coverage when it made out a refund check to Arcadia for the premium eleven days after he died, the record is silent as to when Gulf Coast first discovered such information. Finally, fact issues remain relating to whether Mrs. Jackson reasonably assumed she was covered by insurance. Because Gulf Coast did not inform her she had no insurance coverage until two months after the closing when her husband died, she appears to have acted reasonably in assuming she had insurance coverage for this time. However, after Gulf Coast told her no policy existed and that it planned to refund the insurance fee to Arcadia, she continued making payments for nearly one year and then abruptly stopped because, according to her testimony, she "paid for an insurance policy and . . . assumed the . . . policy would take care of the vehicle."
Similarly, fact issues remain regarding whether Mrs. Jackson acted with due diligence as a party to the procurement agreement. See Via Net v. TIG Ins. Co., No. 05-0785, ___ S.W.3d ___, 2006 WL 3759389, at *4 (Tex. Dec. 22, 2006) (holding that due diligence in contractual arrangements, including agreements to provide insurance, requires that each party protect its own interests, which may include asking a contract partner for information needed to verify contractual performance). The record does not show that Mrs. Jackson asked for a copy of an insurance policy (information verifying contractual performance) during the closing of the sale or in the three-month period before her husband died. However, she testified that, after learning from Gulf Coast that no policy had been purchased and that it would refund the insurance premium to Arcadia, she repeatedly yet unsuccessfully requested that Gulf Coast confirm whether its manager in fact refunded the insurance premium to Arcadia (information verifying contractual performance).
Because fact issues remain as to whether Gulf Coast in fact breached an agreement to procure insurance with Mrs. Jackson, we cannot hold as a matter of law that Gulf Coast took, or failed to take, action affecting the validity or enforceability of the Jackson contract. Thus, we hold that summary judgment for breach under Section 6(d) would have been improper.
B. Causation and Damages
Gulf Coast additionally asserts that Arcadia did not suffer any damages because Arcadia is a secured creditor and may pursue various remedies against Mrs. Jackson for defaulting. Gulf Coast argues that any actions or omissions it may have made as to the Jackson contract did not cause or contribute to Arcadia's damages. Gulf Coast maintains, rather, that Mrs. Jackson's own representations, actions, and fraudulent conduct resulted in her default on the Customer Obligation and thereby caused Arcadia's damages. Arcadia counters that it suffered damages amounting to "not less than the unpaid principal balance on the [Jackson] Contract, plus accrued and unpaid interest, and loan fees, in the amount of $40,592.24." Arcadia says such damages arose from Gulf Coast's failure to repurchase the Jackson contract in alleged breach of the MDA.
Arcadia's alleged damages derive from language in the MDA designating the amount Gulf Coast must pay Arcadia "[i]n any case of repurchase . . . of a Customer Obligation under . . . Section 6." Thus, whether Arcadia is entitled to damages depends directly on whether Gulf Coast improperly refused to repurchase the Jackson contract where Section 6 of the MDA obligated it to do so. As such, we cannot rule as a matter of law whether Arcadia is entitled to damages given our above findings that summary judgment on the various grounds for breach of the MDA was improper. See generally Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 782B83 (Tex.App.-Dallas 2005, pet. denied) (declining to review admissibility of evidence offered to show causation and damages in breach of contract claim because no evidence of breach existed). Accordingly, we hold that summary judgment on the causation and damages issues in Arcadia's breach of contract claim would have been improper.
IV. Conclusion
We conclude the trial court improperly granted summary judgment for breach of contract in favor of Arcadia because Arcadia failed to meet its burden to establish a breach as a matter of law under any MDA provision on which the trial court potentially relied.
We further conclude the trial court improperly granted summary judgment in favor of Arcadia on the issues of causation and damages given that such issues are highly interrelated with the issue of breach and our above findings relating to breach.
We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.