Opinion
No. 13-03-052-CV
Memorandum Opinion Delivered and Filed August 12, 2004.
On appeal from the 275th District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
MEMORANDUM OPINION
Appellant, Hector Moron d/b/a Diversco, appeals from the trial court's order granting summary judgment in favor of appellee, Computer Curriculum Corporation ("CCC"). Moron filed suit against CCC alleging negligence, tortious interference with contractual relations, conspiracy, and violation of the Texas Deceptive Trade Practices Act. On appeal, appellant asserts that the trial court erred by: (1) striking Moron's summary judgment evidence; (2) granting CCC's no-evidence summary judgment motion; and (3) granting CCC's traditional summary judgment motion. We affirm.
I. Summary of Facts
On November 24, 1998, Moron was awarded a contract in the amount of $1,497,490 for the sale of 1,000 computers to the Edcouch-Elsa Independent School District. At the time, CCC, a software vendor, licensed an educational program called SuccessMaker to the school district. After Moron was awarded the contract, the school district requested that he forward an exemplar computer to CCC for compatibility testing. CCC determined that the computer provided by Moron was incompatible with its software. On January 13, 1999, CCC notified the school district that a PCI 128 SoundBlaster card would have to be installed to enable the computers provided by Moron to run SuccessMaker.
By this time, Moron had already delivered three hundred computers to the school district. Moron agreed to install the PCI 128 card on the remaining seven hundred computers, but insisted that the school district bear the cost of replacing the soundcards for the three hundred computers already shipped. Moron also sent three different soundcards to CCC for compatibility testing. On February 10, 1999, CCC sent Moron the results of these tests, which found that two cheaper varieties of soundcard did not allow the computers to run CCC's software, but once again verified that a PCI 128 card, the CT-4700, was compatible. Ultimately, the school district rescinded its contract with Moron. Moron alleges that the school district rescinded the contract as a direct result of CCC's actions, giving rise to the claims underlying this suit.
CCC moved for summary judgment on no-evidence and traditional grounds. The order granting CCC's motion failed to specify the grounds on which summary judgment was granted.
II. Evidence
By his first issue, Moron complains that the trial court erred in striking his summary judgment evidence. Moron submitted several items as attachments to his response to CCC's motions for summary judgment, which were struck by the trial court.
It is unnecessary for this Court to reach this issue since, as we conclude below, Moron would not succeed in his challenge to the summary judgment motion had his evidence been admitted. See TEX. R. APP. P. 47.1. Also, several documents which he asserts were unfairly stricken do not relate to his defense of the summary judgment action against him and thus do not require further discussion. See id.
III. No-evidence Motion for Summary Judgment
CCC filed a no-evidence motion for summary judgment on all causes of action alleged by Moron. By his second issue on appeal, Moron argues that the trial court erred in granting CCC's no-evidence motion for summary judgment. As an initial matter, Moron argues that the trial judge should have construed CCC's no-evidence summary judgment motion as a traditional motion for summary judgment. Moron asserts that CCC's no-evidence motion for summary judgment failed to strictly comply with rule 166a(i) of the Texas Rules of Civil Procedure because CCC incorporated evidence into it by reference.
Due to the substantially lower burden of proof on the movant in a no-evidence motion for summary judgment, this Court is aware of the possibility of ambiguously or deceptively labeled no-evidence motions blind-siding unsuspecting litigants. See Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.-Corpus Christi 2001, no pet.). To prevent such confusion, a better practice is to either file two separate motions, or to clearly delineate between the two motions in a single filing. Id.
CCC complied with this Court's recommendation by filing two separate summary judgment motions. CCC's no-evidence summary judgment motion was clearly labeled as "Defendant Computer Curriculum Corporation's No-evidence Motion for Summary Judgment." Furthermore, CCC properly enumerated the specific elements upon which it claimed there was no-evidence such as to raise a genuine issue of material fact, pursuant to rule 166(i). See TEX. R. CIV. P. 166a(i).
Moron's claim that CCC's incorporation by reference of evidence contained in CCC's summary judgment motion transformed the no-evidence motion into a traditional motion for summary judgment is without merit. As the Texas Supreme Court has held, the mere existence of evidence in a no-evidence summary judgment is not sufficient to allow the court to disregard the motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (if no-evidence motion attaches evidence, that evidence shall not be considered but motion should not be disregarded or treated as traditional motion).
Turning to the primary point in contention under his second issue, Moron asserts that the trial court should not have granted CCC's no-evidence summary judgment motion because he produced at least a scintilla of evidence supporting liability for each claim he has alleged.
Upon appellate review, a no-evidence motion is treated under the same legal sufficiency standard as a pre-trial directed verdict. Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.); see also TEX. R. CIV. P. 166a(i). The evidence is to be reviewed, as in a traditional summary judgment motion, "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." Branton, 100 S.W.3d at 646; KMPG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1995). A trial court's ruling should be affirmed if any of the theories advanced in the relevant motion are meritorious. State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
In a no-evidence summary judgment motion, the movant must assert that there is no evidence of an essential element of a particular claim or defense which the nonmovant would have the burden of proving at trial. Branton, 100 S.W.3d at 647. By definition, the movant does not produce any evidence. TEX. R. CIV. P. 166a(i). Rather, the nonmovant must produce sufficient evidence to raise a genuine issue of material fact as to the challenged elements. Id.; Branton, 100 S.W.3d at 647. Any quantum of evidence greater than a scintilla is considered sufficient to raise a genuine issue of material fact. Branton, 100 S.W.3d at 647. More than a scintilla of evidence exists when the proffered evidence "would enable reasonable and fair-minded people to differ in their conclusions." Id. Conversely, less than a scintilla of evidence exists when the proffered evidence merely "create[s] a . . . surmise or suspicion of a fact" as to the material elements. Id.
Negligence
Moron alleged CCC was negligent because cheaper alternative soundcards existed that would have been equally compatible in Moron's computers. In order to recover under a theory of negligence, Moron must establish that CCC owed him a duty, the breach of which proximately caused his injury. Southwest Key Program v. Gil-Perez, 81 S.W.3d 269, 273-74 (Tex. 2002). Proximate cause incorporates two elements: foreseeability and cause in fact. Id. at 274. The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger his negligence creates. Id. To establish cause in fact, or "but for" causation, a party must show that the other party's "negligence was a substantial factor in bringing about [the] injury and without which no harm would have been incurred." Id. While examining the record to determine if there is sufficient evidence of causation, we must view the evidence in a light that tends to support the finding of causation and disregard all evidence and inferences to the contrary. Id.; see Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).
Moron initially claimed that the soundcard originally installed in the computers would function properly with CCC's software. Moron, however, has dropped this contention upon appeal.
In his attempt to provide more than a scintilla of evidence establishing proximate cause, Moron points to three items: (i) CCC's approval of a "different" soundcard that could be installed in Moron's computers; (ii) Moron's claim in his own affidavit that a different soundcard would suffice; and (iii) a web page of specifications for systems capable of running CCC's software.
Moron claims that CCC's report stating a CT-4700 soundcard passed compatibility testing demonstrates that there is an alternative soundcard. However, the evidence shows that the CT-4700 is actually a model of the PCI 128 soundcard. In the testing report, the soundcard is described as "Creative Technologies, Ltd. model CT-4700 PCI 128 SoundBlaster." The report also notes "Vendor supplied three [soundcards]: CT-4520, CT-4670 and the PCI 128 (CT-4700)" and elsewhere refers to the soundcard in question as both the PCI 128 and CT-4700.
Insofar as Moron's affidavit asserts that the CT-4700 represents an alternate compatible soundcard, he is incorrect. A party must do more than assert factually-unsupported conclusions in order to raise a genuine issue of fact and must provide admissible evidence having probative force in order to defeat the motion. See Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 261 (Tex. App.-Corpus Christi 1997, writ denied). Moron's claim that non-PCI 128 cards were compatible is thus not competent summary judgment evidence because it lacks probative force. See id. It is also not a statement made from personal knowledge, as Moron has failed to conduct any tests for compatibility and has instead relied on his erroneous interpretation of test results published by CCC. See TEX. R. CIV. P. 166a(f).
Moron also asserts that CCC's own website lists hardware specifications that require less than a PCI 128 soundcard. The information contained in the website printout is equally non-probative. The specifications listed in the page are clearly only applicable to the certified hardware companies listed at the top of the page: Dell, Apple, and Compaq. The computers provided by Moron were produced by a clone manufacturer, not one of the name brand manufacturers.
As Moron has failed to produce competent evidence of proximate cause sufficient to establish negligence, the trial court's decision to grant the no-evidence motion for summary judgment on the ground of negligence is affirmed.
Tortious Interference
Moron also argues that the trial court erroneously granted the no-evidence motion with regard to tortious interference. In his petition, Moron alleges that CCC tortiously interfered with a contract between himself and the school district. To establish a claim for tortious interference with a contract, one must prove: (i) the existence of a contract subject to interference; (ii) a willful and intentional act of interference; (iii) the act was a proximate cause of plaintiff's damages; and (iv) actual damages or loss. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996).
Moron supports his claim that CCC engaged in a willful and intentional act of interference because the school district breached its contract after a "unilateral decision by CCC to require [Moron] to place a particular sound card in its computers" (emphasis in original). Moron, however, has provided no admissible evidence that actually supports such a proposition and relies again on the conclusory statements in his own affidavit. He is mistaken on two grounds: (1) as the CT-4700 was a PCI 128 soundcard, there is no evidence of any other soundcard passing the compatibility test; and (2) CCC did not require use of PCI 128 soundcards specifically, but rather noted that of the soundcards tested, only the PCI 128 would be compatible. As Moron provided no evidence of CCC's willful and intentional act of interference, we conclude that the trial court did not err in granting summary judgment for CCC on Moron's tortious interference claim.
Conspiracy
Moron further alleges that the trial court improperly granted CCC's no-evidence summary judgment motion with respect to Moron's civil conspiracy claim. To establish a claim for civil conspiracy, a plaintiff must prove the existence of: (i) two or more persons; (ii) an object to be accomplished; (iii) a meeting of the minds of the object between the persons; (iv) one or more unlawful, overt acts; and (v) damages as a proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); see Ernst Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001). It also requires evidence of a specific intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996).
Moron offers a timeline as evidence of a "meeting of the minds" between CCC and the school district. This timeline shows that CCC informed the school district that in order to operate its software, the computers provided by Moron would have to be equipped with a different soundcard. The school district then requested that Moron install new soundcards on the computers he had already delivered and, after his refusal, rescinded the contract. While this information might constitute more than a scintilla of evidence that the school district decided to rescind its contract as a result of CCC's tests, such information does nothing to establish specific intent by CCC and the school district to accomplish any unlawful purpose. See Juhl, 936 S.W.2d at 644. We therefore conclude that the trial court did not err in granting CCC's motion for summary judgment on Moron's civil conspiracy claim.
Business Disparagement
Moron alleges that the trial judge improperly granted CCC's no-evidence summary judgment motion with respect to Moron's business disparagement claim. The essential elements for establishing a claim of business disparagement are: (i) publication of disparaging words by the defendant; (ii) falsity; (iii) malice; (iv) lack of privilege; and (v) special damages. See Halbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987); Allied Capital Corp. v. Cravens, 67 S.W.3d 486, 492 (Tex. App.-Corpus Christi 2002, no pet.).
We have determined that Moron failed to produce any evidence of an alternate compatible soundcard. There is also no evidence in the record to show that CCC made any false statements that disparaged Moron's business. See Allied, 67 S.W.3d at 492-93. Accordingly, as Moron has failed to establish the element of falsity, the trial court did not err in granting summary judgment for CCC on this claim.
Deceptive Trade Practices Act
Moron argues that the trial judge improperly granted CCC's no-evidence summary judgment motion with respect to Moron's deceptive trade practices claim. Moron alleges that CCC violated the Texas Deceptive Trade Practices Act, see TEX. BUS. COM. CODE ANN. § 17.46 (Vernon 2002), by: (i) falsely representing that CCC would properly test Moron's computer; (ii) breaching both express and implied warranties that CCC would perform its testing in a workmanlike manner; (iii) misrepresenting the standard of CCC's services; (iv) disparaging the goods, services or business of Moron by false or misleading representations, and (v) acting unconscionably.
CCC's motion alleged that there was no evidence on any of these claims. We agree. There is no evidence in the record to suggest that CCC failed to properly test Moron's computer, that any warranties were breached, that the standard of services were misrepresented, or that CCC made any false or misleading statements regarding Moron's computers. Thus, we conclude that CCC did not act unconscionably and the trial court did not err in granting CCC's no-evidence summary judgment motion on deceptive trade practices grounds.
Having affirmed all elements of the trial court's decision to grant CCC's no-evidence motion for summary judgment, we overrule Moron's second issue.
IV. Traditional Motion for Summary Judgment
By his third issue, Moron argues that the trial court erred in granting CCC's traditional motion for summary judgment. CCC's traditional motion relied on the same grounds as the no-evidence motion but included evidence in support of its claims. We review the granting of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc. 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.-Corpus Christi 2000, pet. denied). The moving party has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166 a(c); Branton, 100 S.W.3d at 646. If the movant's summary judgment motion and proof facially establishes its right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
We have affirmed the trial court's decision to grant CCC's no-evidence motion for summary judgment. If Moron has failed to raise a quantum of evidence greater than a scintilla sufficient to defeat CCC's no-evidence claim, see Branton, 100 S.W.3d at 646, he has clearly also failed to raise an issue of material fact sufficient to defeat CCC's traditional summary judgment motion. See City of Houston, 589 S.W.2d at 678. Accordingly, Moron's third issue is overruled.
The decision of the trial court is affirmed.