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using the phrase "breached any duty or was the ‘proximate or producing’ cause" to refer to challenges to breach and causation, but not breach
Summary of this case from Kenyon v. Elephant Ins. Co.Opinion
No. 05-09-00020-CV
Opinion Filed August 24, 2010.
On Appeal from the Dallas County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. 04-13622-B.
Before Justices RICHTER, LANG, and MURPHY.
MEMORANDUM OPINION
Raising two issues, Preston National Bank (PNB) appeals a summary judgment granted in favor of Park Place Motorcars Mid Cities, Ltd. and Park Place Acquisition G.P., LLC ("Park Place"). In its first issue, PNB argues the trial court erred in granting the motion for summary judgment "on the grounds of judicial estoppel" because "the claims were properly assigned to [PNB] and [PNB] had standing to assert such claims." In its second issue, PNB contends the trial court erred in granting the motion for summary judgment because Park Place "failed to specify the grounds for the no evidence summary judgment either legally or factually." For the reasons below, we affirm the trial court's judgment. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Alonzo Perales purchased a new 2001 Mercedes S600 from Park Place. On March 1, 2002 Perales borrowed $118,116.48 from PNB to refinance the automobile. Perales had the vehicle serviced at Park Place approximately thirty times over a period of two and a half years. In June of 2004, the engine of the vehicle failed.
The record is unclear about the exact date the engine failed. In Perales's oral deposition, Perales testified that he drove the car to San Antonio and "around town" between June 2, 2004 and June 29, 2004, a period "immediately before the engine failure." Perales also testified in his deposition that the engine failed before Perales filed for bankruptcy on June 2, 2004.
On June 2, 2004, Perales filed a voluntary petition for bankruptcy under Chapter 13. When Perales filed the initial disclosure schedules with the bankruptcy court, he listed the Mercedes as his personal property, but marked "none" as to the categories of assets entitled "other liquidated debts owing debtor including tax refunds," and "other contingent or unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to set off claims." Further, in those schedules, as well as his Chapter 13 plan, Perales identified PNB as a creditor that held the Mercedes as its collateral. The Chapter 13 plan was confirmed by an order dated August 4, 2005. Perales signed a document, dated September 10, 2005, entitled "Assignment Without Recourse" in which he assigned his rights to the Mercedes to PNB.
The record contains an "Assignment Without Recourse" that states it was "executed as of the 10th day of September 2005." However, in Perales's oral deposition, he testifies that the "Assignment Without Recourse" was signed "right after the bankruptcy" and the "correct date would have been 2004."
On March 31, 2008 the "Schedule B (Personal Property)" was amended to include a claim "against Park Place Motors for improper maintenance and servicing of 2001 Mercedes S600, resulting in complete engine breakdown" under the category, "other liquidated debts owing debtor including tax refunds." The estimated value of the claim was listed as $49,000.
On November 22, 2004, PNB brought suit against Park Place alleging negligence, gross negligence, and breach of contract. Thereafter, on July 7, 2005 and December 7, 2005, Park Place amended its petition to include causes of action for breach of express and implied warranties pursuant to sections 2.313 and 2.314 of the Texas Business and Commercial Code, and for violations of the deceptive trade practices act, section 17.41 of the Texas Business and Commercial Code. In response to each amended petition, Park Place filed a general denial. On August 4, 2008, Park Place filed a motion for summary judgment on the grounds that the "summary judgment evidence conclusively establishes that Plaintiff's claims and causes of action alleged herein are barred by the doctrine of judicial estoppel . . ." because the bankruptcy filings did not "identify the claims asserted" against Park Place. The motion also included a section entitled "No Evidence Motion for Summary Judgment" in which Park Place argued PNB "has no evidence" that Park Place "violated or breached any duty in this case" or was "the proximate or producing cause" of any alleged damages. In PNB's response to the motion for summary judgment, it argued "substantive factual disputes" exist and "Res Judicata law and principles do not apply" because "plaintiff is not the debtor, did not file any sworn statements, [and] was not a party to the [b]ankruptcy," so it could not be precluded from bringing suit against Park Place. On September 30, 2008, the court granted the motion for summary judgment without identifying the grounds on which summary judgment was granted. PNB timely filed its notice of appeal.
II. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
We address PNB's second issue where PNB contends that the trial court erred in granting summary judgment because Park Place "failed to specify the grounds for the no evidence summary judgment either legally or factually."
A. Standard of Review and Applicable Law
Pursuant to rule 166a(i) of the Texas Rules of Civil Procedure, a party may move for summary judgment on the ground that "there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex. R. Civ. P. 166a(i). A no-evidence motion must specifically identify the elements of the claims for which it contends there is no evidence. Tex. R. Civ. P. 166a(i); Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex. App.-Dallas 2004, no pet.). If the no-evidence motion for summary judgment is not specific in challenging a particular element, the motion is legally insufficient as a matter of law and may be challenged for the first time on appeal. See Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 563 (Tex.App.-Dallas 2004, pet.denied); see also Callaghan Ranch.Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993)).
To defeat a no-evidence motion for summary judgment, the non-movant must bring forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 833 (Tex. App.-Dallas 2006, no pet.); Gen. Mills Restaurants, Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.-Dallas 2000, no pet.). Accordingly, our inquiry focuses on whether the non-movant produced more than a scintilla of probative evidence to raise a fact issue on the challenged elements. King Ranch, Inc. v. Chapman, 118 S.W.3d 743, 751 (Tex. 2003).We review de novo the trial court's decision to grant summary judgment and consider the evidence in the light most favorable to the non-movant. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the non-movant failed to produce more than a scintilla of probative evidence to raise a fact issue, we must affirm summary judgment. RTLC AG Prods., 195 S.W.3d at 829.
B. Application of Law to Facts
The record before us reflects that PNB brought suit against Park Place for gross negligence, negligence, breach of contract, breach of express and implied warranties, and violations of the deceptive trade practices act. Thereafter, Park Place moved for summary judgment on both traditional summary judgment and no-evidence grounds. In the part of the motion for summary judgment that asserted a no-evidence motion for summary judgment, Park Place specified that there was no evidence that it had breached any duty or that Park Place's acts and omissions were the proximate or producing cause of PNB's alleged damages. Nothing in the record indicates that PNB responded to Park Place's no-evidence motion contention that the causation and breach of duty elements of PNB's claims were unsupported by evidence.
An essential element of a breach of contract or negligence claim is a party's breach of duty. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 24-25 (Tex. 1994) (gross negligence and negligence require evidence of breach a duty); Esty v. Beal Bank S.S.B, 298 S.W.3d 280, 299 (Tex.App.-Dallas 2009, no pet.) (breach of contract requires evidence of breach of contractual duty). Further, a claim based on negligence, breach of warranty, or violations of the deceptive trade practices act require a showing of either proximate or producing causation. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999) (liability for breach of warranty requires "showing of proximate causation"); Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 478 (Tex. 1995) (deceptive trade practices act violation requires evidence of producing causation); Moriel, 879 S.W.2d at 24-25 (gross negligence and negligence require evidence of proximate causation).
By asserting that PNB had no evidence that Park Place breached any duty or was the "proximate or producing" cause of any alleged damages, Park Place specifically challenged one or more essential elements of each of PNB's claims. See Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 521 (Tex. App.-Dallas 2007, no pet.) (no-evidence motion for summary judgment was legally sufficient because it challenged the breach of duty element of plaintiff's breach of contract and breach of fiduciary claim); Lampasas v. Spring Center, 988 S.W.2d 428, 436-437 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (no-evidence motion for summary judgment that asserted "there was no evidence of any duty, breach or causation" was legally sufficient in a case involving negligence, premise liability, and res ipsa loquitur because "all claims" were "composed of the element or elements that were specifically challenged."); see also Chen v. Mestermaker, 2004 WL 1064805, at *3 (Tex.App.-Houston [1st Dist.] May 13, 2004, no pet.) (mem.op.) (no-evidence motion for summary judgment that asserted "Chen could not produce any evidence to show that he had either breached any duty that he had owed to Chen or that Chen had sustained any damages as a result of Mestermaker's alleged actions or omissions" was legally sufficient in a case involving, among other causes of actions, breach of fiduciary duty, violations of deceptive trade practices act, and negligence per se). Consequently, we conclude Park Place's no-evidence motion for summary judgment that challenged the breach and causation elements of all of PNB's claims was legally sufficient. See Bradford Partners II,, 231 S.W.3d at 521.
Further, we conclude summary judgment was proper as to Park Place's no-evidence motion for summary judgment because PNB did not offer any evidence of the challenged elements in its response. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Patino v. Complete Tire, Inc., 158 S.W.3d 655, 659 (Tex. App.-Dallas 2005, pet. denied). Because the trial court's order does not specify the grounds on which the summary judgment was granted and at least one theory presented to the trial court and preserved for appellate review was meritorious, we affirm the summary judgment. See Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
III. CONCLUSION
The trial court did not err in granting summary judgment. The trial court's judgment is affirmed.