Opinion
NUMBERS 13-15-00341-CV
03-03-2016
RICARDO MUNOZ AND ARMANDO HERRERA, Appellants, v. J.E. SAENZ AND ASSOCIATES, INC., Appellee.
On appeal from the County Court at Law No. 7 of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
Ricardo Munoz and Armando Herrera (appellants) filed suit against J.E. Saenz & Associates, Inc. (Saenz) for breach of contract, fraud, negligence, malpractice, and deceptive trade practices in connection with a land survey Saenz conducted for appellants. Nine years later, Saenz filed a no-evidence motion for summary judgment; the trial court granted the motion. On appeal, appellants argue that the trial court: (1) erred in granting Saenz's no-evidence motion for summary judgment; (2) erred by not granting Munoz's motion for new trial; and (3) violated appellants' right to due process by failing to hold an oral hearing on appellants' motion to compel certain depositions. We affirm.
I. BACKGROUND
In April of 2006, appellants initiated this lawsuit against Saenz. Appellants sought financing from Sharyland Mortgage Company ("Sharyland") to build duplex apartments on property they had purchased. Sharyland hired Saenz to provide a survey of appellants' land. Saenz submitted a survey to Sharyland that included a building that appellants claim is nonexistent. Appellants were denied financing by Sharyland allegedly due to Saenz's allegedly faulty report. The case then came to this Court on an interlocutory appeal, after which the case was remanded to the trial court. See J.E. Saenz & Assocs., Inc. v. Munoz, No. 13-10-00139-CV, 2011 WL 193113, at *2 (Tex. App.—Corpus Christi Jan. 13, 2011, no pet.) (mem. op.).
Several years later, on March 9, 2015, Saenz filed a no-evidence motion for summary judgment, asserting that there was no evidence on at least one or more elements for each of appellants' causes of action. At the time, appellants had pending a motion to compel certain depositions. On March 23, 2015, appellants filed their response to the motion for summary judgment but provided only a copy of the land survey at issue, nothing more. On May 11, 2015, the trial court granted the no-evidence motion for summary judgment. Appellants filed a motion for new trial that was overruled by operation of law. This appeal ensued.
II. DISCUSSION
In three issues on appeal, appellants argue that: (1) the trial court erred by granting Saenz's no-evidence motion for summary judgment; (2) the trial court erred by failing to grant appellants' motion for new trial; and (3) the trial court violated their right to due process by not setting an oral hearing on their motion to compel certain depositions.
A. Standard of Review
A no-evidence motion for summary judgment is essentially a pretrial directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). The trial court must grant a motion for no-evidence summary judgment if the respondent does not produce summary judgment evidence raising a genuine issue of fact. See TEX. R. CIV. P. 166a(i); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App.—Austin 1998, no pet.). In our analysis, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id.
A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.King Ranch, 118 S.W.3d at 750-51. In summary, there is no genuine issue of fact if the evidence is less than a scintilla. See id. There is less than a scintilla of evidence when the evidence is "so weak as to do no more than create a mere surmise or suspicion of a fact." Id.
A trial court's decision to grant or deny a motion for new trial is reviewed for abuse of discretion. See Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 187 (Tex. App.—Dallas 2000, pet. denied).
B. No-Evidence Motion for Summary Judgment and Motion for New Trial
In issues one and two, appellants argue that the trial court erred by granting Saenz's motion for no-evidence summary judgment and by denying appellants' motion for new trial.
In the no-evidence motion for summary judgment, Saenz challenged the existence of any evidence for every element on each of appellants' four claims. The only evidence that appellants produced in response to Saenz's motion for no-evidence summary judgment was the land survey conducted by Saenz. Therefore, the survey is the only piece of evidence that we may consider to determine if appellants raised at least a scintilla of evidence on each element of their claims. See id. Appellants argue that the survey provided at least a scintilla of evidence for each of their claims.
However, in its motion, Saenz challenged the existence of any evidence on the five elements necessary to prove breach of contract. Viewing the evidence in the light most favorable to appellants, we agree that the survey is no evidence regarding whether: (1) a valid and enforceable contract existed; (2) appellants are the proper party to bring the suit; (3) appellants performed, tendered performance, or for some other reason were excused from performing their contractual duties; (4) Saenz actually breached the contract; or (5) Saenz caused the injury sustained by appellants. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007); Doss v. Homecomings Fin. Network, Inc., 210 S.W.3d 706, 713 (Tex. App.—Corpus Christi 2006, pet. denied). Furthermore, because appellants claim to be the third-party beneficiary of the alleged contract between Sharyland and Saenz, appellants would need to produce evidence that Sharyland intended to secure a benefit for appellants and that Sharyland entered into the contract directly for appellants' benefit. See Basic Capital Mgmt. v. Dynex Comm'l, Inc., 348 S.W.3d 894, 900 (Tex. 2011). But the survey does not provide any evidence on this issue. Even if we assume without deciding that there was evidence of a contract, we conclude there was no evidence of a breach of contract.
Saenz also challenged the existence of any evidence concerning the four elements of negligence. Viewing the evidence in the light most favorable to appellants, we agree that nothing in the survey constitutes evidence that: (1) Saenz owed a legal duty to appellants; (2) Saenz breached said duty; (3) the breach proximately caused appellants' injury; or (4) appellants actually suffered damages as a result of the breach. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). We conclude that the survey constitutes no more than a mere scintilla of evidence in respect to the elements of a negligence claim.
Saenz also challenged the existence of any evidence on all six elements of appellants' fraud claim. Viewing the evidence in the light most favorable to appellants, we find that the survey provides no evidence that: (1) Saenz made a material representation; (2) the representation was false; (3) at the time it was made, Saenz knew the representation was false or made the representation recklessly without any knowledge of its truth; (4) Saenz made the representation with the intent that appellants should act upon it; (5) appellants relied upon Saenz's representation; or (6) appellants suffered an injury as a result of Saenz's representation. See Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). Appellants argue that including a non-existent building in a survey is evidence by itself of misrepresentation. However, appellants provided no evidence to the trial court that the contested building was in fact nonexistent. We conclude that the survey does not constitute more than a mere scintilla of evidence concerning the elements of appellants' fraud claim.
Lastly, Saenz also challenged the existence of any evidence on all the essential elements to prove a violation of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). See TEX. BUS. & COM. CODE §17.50(a)(1) (West, Westlaw through 2015 R.S.). Viewing the evidence in the light most favorable to appellants, the survey is no evidence that: (1) appellants are consumers under the DTPA; (2) Saenz is a proper party to sue under the DTPA; (3) Saenz committed any of the numerous violations contained within the "laundry list" of 17.46(b) of the DTPA; (4) appellants relied upon the alleged deceptive act to their detriment; (5) Saenz committed breach of an express or implied warranty; (6) Saenz committed an unconscionable act; (7) Saenz's actions were a producing cause of appellants' damages; or (8) appellants actually suffered damages. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478-79 (Tex. 1995). We conclude that appellants produced no evidence regarding the elements of their DTPA claim.
We address all eight elements of the DTPA claim that the parties addressed in their briefs. However, more simply stated, a general DTPA claim only has three basic elements: "(1) the plaintiff was a consumer; (2) the defendant either engaged in false, misleading, or deceptive acts (i.e., violated a specific laundry-list provision of the DTPA) or engaged in an unconscionable action or course of action; and (3) the DTPA laundry-list violation or unconscionable action was a producing cause" of the plaintiff's injury. Bus. Staffing, Inc. v. Jackson Hot Oil Serv., 401 S.W.3d 224, 236 (Tex. App.—El Paso 2012, pet. denied); see Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). --------
In summary, in response to Saenz's no-evidence motion for summary judgment, appellants filed the land survey as their only piece of evidence. However, as set out above, the survey does not constitute evidence for any of the elements of appellants' four claims. Therefore, the trial court did not err by granting Saenz's motion for no-evidence summary judgment and denying appellants' motion for new trial. We overrule appellants' first and second issues.
C. Due Process
In their third issue, appellants claim they were not afforded due process because the trial court did not set a hearing on their motion to compel certain depositions and their motion for sanctions. Appellants claim that, by not setting a hearing, the trial court did not afford them an opportunity to be heard at a "meaningful time" in a "meaningful manner." Appellants claimed that Saenz was purposefully trying to delay depositions by making their witnesses unavailable. However, the case had been pending for nine years and yet the appellants had not taken a single deposition or engaged in any formal discovery. It was only one week after Saenz filed a motion to dismiss for want of prosecution that appellants filed a motion to compel certain depositions.
Even though due process does require an opportunity to be heard, appellants cite no case law for the propositions that a trial court must hold an oral hearing on every discovery motion or that failure to hold such a hearing violates a litigant's right to procedural due process. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (observing that "not every hearing called for under every rule of civil procedure necessarily requires an oral hearing," unless required by the express language of the rule). The trial court did hold a hearing on the motion for no-evidence summary judgment. Appellants were heard; the trial court simply disagreed with what they had to say. We overrule appellants' third issue.
III. CONCLUSION
We affirm the trial court's judgment.
Nora L. Longoria
Justice Delivered and filed the 3rd day of March, 2016.