Opinion
No. 05-02-01867-CV.
Opinion Filed October 30, 2003.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 00124599
AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Pete Flint Craver, III and Dawn Marie Craver appeal the summary judgment granted in favor of Plano Home Inspection, Inc. (PHI) and Tom Tidwell. Appellants sued appellees for violations of the Texas Deceptive Trade Practices-Consumer Act (DTPA) and breach of contract after appellants purchased a home inspected by Tidwell. In a single point of error, appellants contend the trial court erred in granting summary judgment. The background of the case and the evidence adduced at trial are well known to the parties, thus we do not recount the facts in detail. We issue this opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in this case is well settled. We affirm the trial court's judgment.
According to appellants, appellees violated the DTPA when Tidwell "held himself out to be an expert," and they relied upon his opinion that the heating and air conditioning system in the house purchased by them needed only minor repairs. In their motion for summary judgment, appellees alleged, among other things, that they were entitled to judgment as a matter of law because appellants could not produce any evidence that appellees engaged in a false, misleading, or deceptive act by representing their service to have characteristics that it did not have. In response, appellants relied on their affidavits which state that Tidwell told them "he was qualified" and there was nothing wrong with the HVAC system that "a little duct tape couldn't fix." Appellants did not produce any evidence concerning Tidwell's qualifications to inspect the HVAC system. Nor do appellants point to any such evidence on appeal. Because appellants failed to produce any evidence showing that Tidwell was not qualified to inspect HVAC systems, appellants failed to meet their burden as the nonmovant to produce evidence sufficient to create a fact issue on each challenged element. See Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.) (no-evidence summary judgment reviewed under legal sufficiency standard used to review a directed verdict). Thus, we cannot conclude the trial court erred by granting summary judgment on appellants' DTPA claims against appellees.
Appellants' original petition alleges appellees violated the DTPA by (1) representing goods and services to have characteristics and/or benefits that they did not have; (2) making false or misleading statements of fact concerning the reason for, existence of, or amount of price reductions; (3) failing to disclose information concerning goods or services which was known, but not disclosed in order to induce them into purchasing goods or services from appellees; and (4) engaging in unconscionable actions. On appeal, however, appellants address only their complaint that Tidwell represented himself to be an expert when he was not, and they therefore relied on his opinion about the extent of the HVAC defects. Thus, we limit our discussion to that complaint.
With respect to any purported breach of contract claim, we first note that appellants did not allege a breach of contract claim in their original petition. Nevertheless, in their motion for summary judgment, appellees alleged they were entitled to judgment as a matter of law on a breach of contract claim. They did not, however, explain the purported breach of contract. In their response, appellants' only reference to a breach of contract claim was a single sentence, "As to breach of contract, it should be clear by now that the Plaintiffs contracted for a service which was not properly rendered."
On appeal, appellants again fail to adequately address any purported claim for breach of contract. Appellants brief does contain a paragraph discussion on "the issue of the disclaimer or waiver of warranty issue." It is not clear, however, whether appellants are addressing this issue with respect to a breach of contract claim or with respect to the DTPA claims. In the warranty discussion, appellants cite a single unpublished case. Appellants do nothing more than conclude that the waiver of warranty contained in the contract should be disregarded because Tidwell "told appellants that he knew what he was doing, and they had nothing to be worried about." Appellants do not offer any legal analysis or discussion regarding a breach of the contract. Appellants have failed to provide us with argument that is sufficient to make their appellate complaint viable. See McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. denied); Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 840 (Tex.App.-Dallas 2000, no pet.); Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex.App.-Houston [1st Dist.] 1995, no writ); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of error due to inadequate briefing). By failing to adequately brief their complaint, appellants have waived this issue on appeal. We overrule appellants' point of error.
Accordingly, we affirm the trial court's judgment.