Opinion
05-22-00751-CV
01-31-2024
NIKOLAY VLADOV, TEODORA ARSOVA, AND ELENA ARSOVA, Appellants v. AUTOHAUS, LLC D/B/A EWING AUTOMOTIVE GROUP ANDMERCEDES BENZ OF PLANO, Appellee
On Appeal from the County Court at Law No. 2 Collin County, Texas Trial Court Cause No. 002-02979-2020
Before Justices Molberg, Reichek, and Smith
MEMORANDUM OPINION
CRAIG SMITH JUSTICE
This case arises from repair services by appellee Autohaus, LLC d/b/a Ewing Automotive Group and Mercedes Benz of Plano (Autohaus) to two vehicles owned by appellants Nikolay Vladov, his wife Teodora Arsova, and their daughter Elena Arsova. Appellants sued Autohaus for violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), breach of implied warranty of merchantability, and fraud and fraudulent inducement. Autohaus filed a combined no-evidence and traditional motion for summary judgment, which the trial court granted. In eleven issues, appellants contend Autohaus was not entitled to summary judgment. We affirm the trial court's order.
Background
Appellants owned a 2005 Mercedes Benz SL500 and a 2007 Mercedes Benz S550. Autohaus serviced both vehicles on multiple occasions.
Elena held title to the SL500; Teodora held title to the S550.
In April 2019, Autohaus replaced the SL500's transmission valve body. In November 2019, appellants returned, complaining that the transmission "hunt[ed] for gear when shifting from 1st to 2nd." Autohaus performed, at no cost, an "adaption, SHIFT 1-2." Autohaus also advised that the SL500 needed "springs for clutch packs." Autohaus offered to discount its $4,000 estimate for the repair by $750, which was the approximate labor expense for the earlier valve body replacement. Appellants opted not to have Autohaus make the repair.
In June 2020, appellants took the S550 to Autohaus due to problems with its ME control unit and a power window. Although Autohaus advised that it was unable to duplicate the ME control unit problem, it replaced the unit at Vladov's request and Vladov paid $1,380 for the repair. Autohaus remedied the window problem, at no cost, by performing an update on the door control module and replacing the pins for the front window motor. Autohaus also advised that it had determined the S550's rear struts were leaking and there was some oil in the coolant system due to a leaking oil filter housing. Autohaus service manager Daniel Adams informed Vladov that it would cost $4,208 to repair the struts and $2,224 to repair the oil leak. Vladov did not have Autohaus make the repairs. He did not believe the struts were leaking and concluded that somebody at Autohaus had intentionally poured oil into the S550's coolant system.
Appellants then brought this suit, asserting claims under the DTPA. Specifically, appellants alleged that Autohaus (1) made false and misleading statements about the SL500 and S550 repairs and that the vehicles required other repairs, (2) breached an implied warranty of merchantability with respect to the April 2019 SL500 repair, and (3) committed an unconscionable action or course of action by purposefully contaminating the S550's coolant system with old motor oil and then seeking payment to repair the damage.
Autohaus filed a combined traditional and no-evidence summary judgment motion. Appellants then amended their petition twice, adding common law claims for breach of implied warranty of merchantability and fraud and fraudulent inducement and revising their request for damages. Autohaus supplemented its summary judgment motion, and appellants filed a response. Autohaus sought a no- evidence summary judgment on the claims against it and sought traditional summary judgment on the grounds that (1) Vladov lacked standing as to the DTPA claims because he was not a consumer and (2) appellants were not entitled to both out of pocket and diminution in value damages. Following a hearing, the trial court entered an order granting Autohaus's motion and ruling that appellants take nothing on their claims against Autohaus. Appellants appeal the trial court's summary judgment ruling.
Appellants' second amended petition repeats identical breach of implied warranty allegations twice. It is unclear if, in doing so, appellants intended to assert both a DTPA and common law claim. For purposes of this appeal, we assume they did.
Standard of Review
We review a trial court's decision to grant summary judgment de novo. See Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). If the trial court grants summary judgment without specifying the grounds for its ruling, we must affirm the judgment if any of the grounds on which judgment is sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). If a party moves for summary judgment on both traditional and no-evidence grounds, we generally address the no-evidence motion first. See id. If the challenge to the no-evidence motion fails, we need not consider the traditional motion. Id.
A movant may obtain a no-evidence summary judgment, after adequate time for discovery, when "there is no evidence of one or more of the essential elements of a claim on which [the nonmovant] would have the burden of proof at trial." JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (citing Tex.R.Civ.P. 166a(i)). When a no-evidence motion is properly filed, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact on each challenged element. Id. A nonmovant raises a genuine issue of material fact if it produces more than a scintilla of evidence establishing the existence of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the nonmovant fails to produce more than a scintilla of evidence, there is no need to determine whether the movant established it was entitled to summary judgment on that claim under traditional grounds. Id.
DTPA Claims
The DTPA serves "to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection." Tex. Bus. & Com. Code Ann. § 17.44(a). The elements of a DTPA cause of action are that (1) the plaintiff is a consumer; (2) the defendant violated a specific DTPA provision; and (3) the violation was a producing cause of the plaintiff's damages. Id. § 17.50(a); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). "Producing cause" means "a substantial factor which brings about the injury and without which the injury would not have occurred." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995). Thus, there must be evidence that the consumer was adversely affected by the defendant's improper conduct. See id. (citing Home Sav. Ass'n v. Guerra, 733 S.W.2d 134, 136 (Tex. 1987)).
According to appellants' second amended petition and summary judgment response, the following misrepresentations by Autohaus constituted false, misleading, or deceptive acts under section 17.46 of the DTPA:
(1) the SL500 transmission had been repaired in April 2019 and additional recommended repairs in November 2019 were not covered by warranty;
(2) the S550's rear struts were leaking with an estimated repair cost of $4,208 in June 2020; and
(3) the oil found in the S550's coolant system in June 2020 was due to a leak in the oil filter housing.See Tex. Bus. & Com. Code Ann. §§ 17.50(a)(1); 17.46(a), (b)(5) (representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have), (b)(7) (representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another), (b)(13) (knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service). Although not alleged in the petition, appellants' summary judgment response also complained that Autohaus misrepresented that it followed Mercedes-required procedures to diagnose and repair the S550's ME control unit and power window in June 2020.
Appellants also alleged that Autohaus breached an implied warranty of merchantability. See id. § 17.50(a)(2). The DTPA does not create warranties, but provides a cause of action separate and apart from a common law cause of action with different damages and remedies. Nghiem v. Sajib, 567 S.W.3d 718, 722 (Tex. 2019). For goods to breach the implied warranty of merchantability, they must be "unfit for the ordinary purposes for which they are used because of a lack of something necessary for adequacy." Gen. Motors Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex. 1998) (per curiam) (quoting Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 443-44 (Tex. 1989)); see also Tex. Bus. & Com. Code Ann. § 2.314(b)(3). The goods must have been defective at the time they left the defendant's possession. Plas-Tex, 772 S.W.2d at 444. Appellants alleged that, following the SL500's August 2019 valve body replacement, the transmission "was not fit for the ordinary purpose for which it was to be used, was not merchantable, and would not pass without objection in the trade under its contract description due to several defects, including but not limited to the transmission was not properly repaired."
Appellants alleged that Autohaus engaged in unconscionable conduct. See Tex. Bus. & Com. Code Ann. § 17.50(a)(3). An unconscionable action or course of action is "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree." Id. § 17.45(5). To prove an unconscionable action or course of action, a plaintiff must show that the defendant took advantage of the plaintiff's lack of knowledge and "that the resulting unfairness was glaringly noticeable, flagrant, complete and unmitigated." Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 677 (Tex. 1998) (quoting Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex. 1985)). According to appellants' second amended petition, Autohaus engaged in an unconscionable action or course of action by "purposefully contaminating the S550's coolant system with old motor oil and then seeking money to repair the damage [it] created."
With respect to its DTPA claims, appellants sought economic damages and, asserting that Autohaus's conduct was both knowing and intentional, mental anguish damages and treble damages. To recover mental anguish damages and treble damages under the DTPA, a plaintiff must prove that the defendant acted with actual awareness that its conduct was unfair or deceptive or that an act, practice, condition, defect, or failure constituted a breach of warranty. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1); St. Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex. 1998); Blue Star Op. Co. v. Tetra Tech., Inc., 119 S.W.3d 916, 920-21 (Tex. App.-Dallas 2003, pet. denied).
Specifically, the DTPA defines "knowingly" as "actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer's claim or, in an action brought under Subdivision (2) of Subsection (a) of Section 17.50, actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty . . . ." Tex. Bus. & Com. Code Ann. § 17.45(9). "Intentionally" means "actual awareness of the falsity, deception, or unfairness of the act or practice, or the condition, defect, or failure constituting a breach of warranty giving rise to the consumer's claim, coupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception or in detrimental ignorance of the unfairness." Id. § 17.45(13).
1. Autohaus's No-Evidence Summary Judgment Motion Specifically Challenged Elements of Appellants' DTPA Claims
A no-evidence motion for summary judgment must specifically identify the essential element or elements of a claim for which there is no evidence. Hansen, 525 S.W.3d at 695. The motion may challenge "distinct factual allegations and theories of recovery" so long as the challenge is "specific and connected to a particular element of a cause of action or defense to meet the requirements" of rule 166a. See Jose Fuentes Co. v. Alfaro, Inc., 418 S.W.3d 280, 284 (Tex. App.-Dallas 2013, pet. denied) (citations omitted). If the motion is not specific in challenging a particular element, the motion is legally insufficient as a matter of law. Coleman v. Prospere, 510 S.W.3d 516, 519 (Tex. App.-Dallas 2014, no pet.).
In their first issue, appellants assert that the trial court erred in granting Autohaus's no-evidence summary judgment motion because the motion failed to specify the elements of the DTPA claims that Autohaus was challenging and attacked a "non-element." Asserting that knowing and/or intentional conduct is not a required element of a DTPA claim, appellants direct the Court to portions of the motion arguing that appellants had no evidence to support their allegations that Autohaus "knowingly or intentionally" misled appellants about the quality of certain repairs or that Autohaus committed unconscionable misconduct by "intentionally" tampering with the S550.
The motion, however, also specifically challenged elements of each DTPA claim. With respect to the DTPA claim for false, misleading, or deceptive acts or practices and the common law claim for fraud and fraudulent inducement, both of which are based on the same alleged misrepresentations, the motion challenged the claims' shared elements that (1) a misrepresentation occurred and (2) an injury occurred due to the alleged misrepresentation. We understand the latter to challenge the causation element of the claims. See Tex. Bus. & Com. Code A nn. §17.50(a)(1). With respect to appellants' claim for breach of implied warranty of merchantability, the motion asserted that "[t]here is no evidence that a purported breach of warranty was a producing cause of damages to [appellants]." See id. § 17.50(a)(2). With respect to the claim for unconscionable conduct, the motion stated that appellants "cannot establish unconscionable conduct as a matter of law." See id. § 17.50(a)(3). And, with respect to damages for the DTPA claims, Autohaus's no-evidence summary judgment asserted, among other things, that appellants could not prove knowing or intentional conduct as a matter of law. See id. § 17.50(b).
In this case, there is no relevant distinction between appellants' DTPA breach of warranty claim and their common law breach of warranty claim. The DTPA claim requires evidence of producing cause and the common law claim requires evidence of proximate cause, see Pavelka v. Foxworth-Galbraith Lumber Co., No. 10-07-00246-CV, 2008 WL 3113601, at *2 (Tex. App.-Waco Aug. 6, 2008, pet. denied) (mem. op.), but "[a]n act or defect that is not a producing cause cannot, as a matter of law, constitute a proximate cause." Otis Spunkmeyer, Inc. v. Blakely, 30 S.W.3d 678, 691 (Tex. App.-Dallas 2000, no pet.) (citing Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999)); Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98-99 (Tex. App.-Houston [1st Dist.] 2007, no pet.). Accordingly, our analysis of the DTPA claim applies to the common law claim as well.
Accordingly, we conclude that the motion sufficiently identified specific essential elements of each section 17.50(a) DTPA claim that Autohaus challenged. We overrule appellants' first issue.
2. Appellants Failed to Raise a Genuine Issue of Material Fact on Each Challenged Element of Appellants' DTPA Claims
Appellants raise several issues in which they contend there was sufficient evidence to raise a genuine issue of material fact on essential elements of their DTPA claims. In their second issue, appellants assert that there was evidence of Autohaus's deceptive acts. In their fifth issue, appellants assert that there was summary judgment evidence to support each element of their breach of warranty claim. And, in their sixth issue, appellants contend there was evidence of unconscionability.
Appellants' response to Autohaus's no-evidence summary judgment motion largely relied on statements in a declaration by Vladov. The declaration describes at length procedures that Vladov asserted Autohaus did not follow. For example, Vladov averred that Autohaus, as a Mercedes repair facility, was required to maintain and use a computer and software system known as the Star Diagnostic System/XENTRY System. "Whenever a Mercedes is brought into a dealership, it is connected to the SDS/XENTRY System via a laptop which automatically connects the car to the system and generates a document called a Quick Test Log" that identifies any issues with the vehicle by displaying fault codes. According to Vladov, if a "technician does not follow these mandatory procedures, then the entire service is jeopardized because the problem was not accurately diagnosed, repaired, or documented so that future repairs can be done correctly and any applicable warranty for the parts or repairs is voided."
Vladov further stated that Autohaus charged $1,828.86 for a valve body replacement to the SL550 and "installed it incorrectly" by "not perform[ing] the 'adaptation' that is required to 'marry' the new valve body to the [SL500] computer." According to Vladov, quick test logs performed by Autohaus confirm that the valve body was not installed correctly. Autohaus did not perform the required adaptation until seven months later, in November 2019, when appellants returned the car for service. Autohaus also advised at that time that the SL500 needed "springs for clutch packs." Vladov concluded without facts in support that all of the transmission work could and should have been repaired in one visit but Autohaus sought to fix only one problem at a time to increase the repair bill.
According to Vladov, Autohaus's representation that a filter housing leak was the source of oil in the S550's coolant system was, "by all accounts, physically impossible." As support, Vladov cited the deposition testimony of Chris Manning, an Autohaus employee, indicating that the coolant system is a closed system. Vladov also complained that Autohaus neither released "inspection documents/logs confirming leaking 'oil cooler housing'" nor warned appellants of potential engine damage from driving the S550 with mixed oil and coolant. Manning, however, testified that the coolant system is "a closed system, unless there's a - a leak present," and the summary judgment evidence shows that Autohaus sent Vladov at least one related inspection report via text message.
Autohaus contends that appellants cannot defeat summary judgment on their claims because the repairs at issue, as well as the Mercedes-required procedures for diagnosing and remedying problems, are complex and a subject for expert witness evidence. Based on the subject matter and on this record, we agree.
Whether expert testimony is required to prove a particular issue is a question of law that we review de novo. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006); FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex. 2004). In determining whether expert testimony is required, we consider whether the conduct at issue involves matters beyond jurors' common understanding. Mack Trucks, 206 S.W.3d at 583; Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113, 119-20 (Tex. 2004). Generally, matters involving specialized or technical knowledge, equipment, or techniques require expert evidence. FFE Transp., 154 S.W.3d at 90-91; Rangel v. Lapin, 177 S.W.3d 17, 22-23 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) ("highly technical matters of design and engineering require scientific, technical, and/or specialized knowledge"); see Hill v. Sonic Momentum JVP, LP, No. 01-20-00367-CV, 2021 WL 3501540, at *4 (Tex. App.-Houston [1st Dist.] Aug. 10, 2021, pet. denied) (mem. op.) (stating, in case involving damage to vehicle, that Texas courts require expert testimony "[i]n similar circumstances involving mechanical maintenance"). Further, proof of causation cannot turn on speculation, see Mack Trucks, 206 S.W.3d at 578, 583, and expert testimony is required where the connection between a defendant's conduct and the plaintiff's harm is beyond the common understanding of a layperson. See Alexander, 146 S.W.3d at 119.
Our review of the record demonstrates that the evidence appellants relied on to raise fact issues on their DTPA claims clearly involves complicated, technical matters related to the vehicles' mechanical maintenance that are not within the common understanding of laypersons. See Hill, 2021 WL 3501540, at *4; e.g., FFE Transp., 154 S.W.3d at 91 ("The upper coupler assembly, kingpin, and base rail of a refrigerated trailer are specialized equipment, and the proper inspection and maintenance of those parts involve techniques unfamiliar to the ordinary person."); Poteet v. Kaiser, No. 2-06-397-CV, 2007 WL 4371359, at *3-5 (Tex. App.-Fort Worth Dec. 13, 2007, pet. denied) (mem. op.) (combustion process of a heating furnace is a matter beyond a juror's common understanding; with no expert evidence to show faulty furnace system was source of soot, appellants failed to present evidence that misrepresentations regarding cleaning of HVAC units caused their damages); Simmons v. Briggs Equip. Tr., 221 S.W.3d 109, 114-15 (Tex. App.- Houston [1st Dist.] 2006, no pet.) (expert testimony required to establish whether condition, if any, of hydraulic hose in rail-car mover should have been detected or repaired before fire and whether defendant actually did or failed to do anything to cause fire); Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex. App.-Amarillo 1999, pet. denied) (performance of mechanical work on turbine aircraft engines is not within the experience of a layperson); compare Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex. 1987) (expert testimony was unnecessary in breach of implied warranty to repair case because jurors "had sufficient knowledge to find that the failure to connect washing machine pipes would not be considered good and workmanlike").
Appellants did not rely on Vladov's declaration simply to show that the vehicles were not "fixed" or to identify Autohaus documents. They relied on his statements as evidence of Autohaus's misrepresentations, unconscionable conduct, and that alleged misrepresentations and defects were a substantial factor bringing about damages to appellants and without which the damages would not have occurred. The evidence included Vladov's explanation of the Mercedes-required protocols for diagnosing and repairing the vehicles, his conclusions that Autohaus did not follow the protocols, and his interpretation of Autohaus quick test logs. He also offered opinions, among others, regarding the SL500 valve body replacement, whether other transmission repairs, diagnosed seven months later, could and should have been performed at the same time, how oil could become mixed with coolant in the S550's "closed" coolant system, and that Autohaus personnel must have placed the oil in the coolant. These matters, involving the mechanical maintenance of the SL500 and S550, are beyond jurors' common understanding and require expert evidence. See Hill, 2021 WL 3501540, at *4.
Having reviewed the summary judgment record, we also conclude that, with respect to appellants' complaints regarding the S550's rear struts, ME control unit, and power window, there was no summary judgment evidence to show that any alleged misrepresentations or breaches of warranty were a producing cause of economic damages to appellants. First, Vladov did not believe Autohaus's report that the rear struts were leaking, opted not to have them repaired, and, therefore, did not incur any allegedly unnecessary expense. Second, to the extent Autohaus misrepresented that it followed certain Mercedes diagnosing and repair procedures with respect to the ME control unit and power window, Vladov (1) directed Autohaus to replace the ME control unit after it advised him that it had been unable to duplicate his problem, (2) knew of no problem with the ME Control Unit repair, and (3) acknowledged that Autohaus fixed the power window and did not charge appellants for the repair. Under these circumstances, we conclude that there is no evidence that any misrepresentation by Autohaus regarding these repairs was a producing cause of economic damages to appellants.
Finally, we conclude that there is no summary judgment evidence to show that Autohaus knowingly or intentionally committed a DTPA violation as required for appellants to recover mental anguish damages. In order to recover mental anguish damages, appellants must prove that Autohaus acted with actual awareness that its conduct was false, unfair, or deceptive or that an act, practice, condition, defect, or failure constituted a breach of warranty. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1); Bossier Chrysler-Dodge II, Inc. v. Riley, 221 S.W.3d 749, 758 (Tex. App.-Waco 2007, pet. denied). Actual awareness is more than conscious indifference to another's rights or welfare. St. Paul Surplus Lines Ins., 974 S.W.2d at 54. The defendant must know that what he "is doing is false, deceptive, or unfair." McLeod v. Gyr, 439 S.W.3d 639, 652 (Tex. App.-Dallas 2014, pet. denied) (quoting St. Paul Surplus Lines Ins., 974 S.W.2d at 53-54). "In other words, [the defendant] must think to himself at some point, 'Yes, I know this is false, deceptive, or unfair to him, but I'm going to do it anyway.'" St. Paul Surplus Lines Ins., 974 S.W.2d at 54. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. Tex. Bus. & Com. Code Ann. § 17.45(9), (13).
Appellants need not prove that they have suffered economic damages in order to recover mental anguish damages. See Latham v. Castillo, 972 S.W.2d 66, 69 (Tex. 1998). Nor is expert testimony required to prove mental anguish damages in cases in which recovery is allowed. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (mental anguish may be established from "the claimants' own testimony, that of third parties, or that of experts"). However, to recover mental anguish damages, appellants must prove that Autohaus knowingly or intentionally committed a DTPA violation. See Tex. Bus. & Com. Code Ann. 17.50(b)(1).
As evidence that Autohaus's conduct was knowing and intentional, appellants relied on statements in Vladov's declaration that Autohaus "purposefully contaminated" the S550's coolant system and misrepresented that (1) it had replaced parts that it had not, (2) it had performed Mercedes-required tests and procedures that it did not, and (3) the S550 required additional repairs that it did not need. As discussed above, whether Autohaus misrepresented repairs or the need for repairs and whether certain tests and procedures were required is a matter for expert testimony. Appellants failed to direct the trial court to factual support in the summary judgment record for Vladov's conclusory statement that Autohaus purposefully damaged the S550's coolant system or to demonstrate that Autohaus misrepresented its repairs, including whether it followed Mercedes-required tests and procedures, or recommended unnecessary repairs. Without such support, there is no evidence from which to infer that Autohaus committed the alleged DTPA violations and did so with actual awareness that what it was doing was false, deceptive, or unfair. See Ramirez v. GEICO, 548 S.W.3d 761, 773 (Tex. App.-El Paso 2018, pet. denied) (plaintiff's conclusory statement that insurer delayed medical payments to plaintiff's chiropractor, without factual evidence regarding payments, did not constitute more than a scintilla of evidence that insurer purposely engaged in delay payment scheme to force plaintiff to stop medical treatment); see also Ryland Group. Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam) (expert witness affidavit stating that builder's failure to notify that untreated wood was used for decking "amount[ed] to a concealment of a known violation of the specifications and industry practice" was conclusory, no evidence that builder had actual knowledge about use of untreated wood, and failed to raise fact issue on willful and intentional misconduct in support of affirmative defense).
In its summary judgment motion, Autohaus identified appellants' lack of evidence on essential elements of each of their DTPA claims. Because appellants failed to present more than a scintilla of evidence establishing the existence of these elements, including by not responding to Autohaus's motion with necessary expert testimony, we conclude that the trial court properly granted the no-evidence summary judgment motion on appellants' DTPA claims for false, misleading, or deceptive acts, breach of implied warranty of merchantability, and unconscionable action or course of action. See Tex. R. Civ. P. 166a(i). We overrule appellants' second, fifth, and sixth issues.
Having concluded that appellants failed to raise a material issue of fact to show that any purported breach of implied warranty of merchantability was a producing cause of injury to appellants, we need not consider their third and fourth issues, which challenged the no-evidence summary judgment to the extent it was based on Autohaus's alternative argument that appellants had disclaimed any implied warranty. See Tex. R. App. P. 47.1.
Fraud and Fraudulent Inducement Claim
The elements of common law fraud are:
(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per curiam); Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018) ("[f]raudulent inducement is a species of common-law fraud that shares the same basic elements"). A plaintiff must show actual and justifiable reliance to prove fraud. Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010); Miller Glob. Props., LLC v. Marriott Int'l, Inc., 418 S.W.3d 342, 347 (Tex. App.-Dallas 2013, pet. denied). In their seventh issue, appellants assert that the trial court erred in granting summary judgment because there was evidence to support their claim for fraud and fraudulent inducement.
Autohaus moved for a no-evidence summary judgment on appellants' fraud and fraudulent inducement claim, asserting there was no evidence that a misrepresentation occurred, that appellants relied on any alleged misrepresentation, or that any actual injury occurred due to the alleged misrepresentations. In response to the motion, appellants described Autohaus's actions with respect to the SL500's transmission in 2019 and the 2020 S550 service call. It then cited to the following conclusory statement in Vladov's declaration:
[Appellants] relied on [Autohaus's] false and misleading statements that the S550 and SL500 required certain repairs, required repairs at all, or required repairs because of intentional acts by [Autohaus], to [appellants'] detriment.
Appellants did not direct to the trial court to any factual evidence to support the statement, so we must conclude that they failed to raise a genuine issue of material fact to show they relied on Autohaus's alleged misrepresentations. See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688-89 (Tex. 2006) (conclusory statements without underlying facts to support conclusions are not competent summary judgment evidence); e.g., James L. Gang & Assocs., Inc. v. Abbot Labs., Inc., 198 S.W.3d 434, 442 (Tex. App.-Dallas 2006, no pet.) (plaintiff's claim in affidavit that he expended large sums of money in reliance on defendant's alleged promises, without facts, data, or figures to support the expenditures did not constitute competent summary judgment evidence of reliance damages); Mavex Mgmt. Corp. v. Hines Dallas Hotel Ltd. P'ship, 379 S.W.3d 456, 461-62 (Tex. App.-Dallas 2012, no pet.) (conclusory affidavit statements that failed to identify what specific actions appellants took in reliance on alleged misrepresentations did not raise fact issues and were insufficient to defeat no-evidence motion for summary judgment on appellants' fraud and promissory estoppel claims).
Appellants' brief on appeal directs the Court to three payments that they made to Autohaus "for repairs that were not performed or not performed and documented properly" to show reliance. Appellants, however, did not direct the trial court to evidence of these payments in their response to Autohaus's summary judgment motion. Landero v. Future Healthcare Sys., Inc., No. 05-21-00881-CV, 2023 WL 4571925, at *2 (Tex. App.-Dallas July 18, 2023, no pet.) (mem. op.) ("[W]hen presenting summary-judgment proof, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court."). Accordingly, appellants failed to meet their burden in responding to Autohaus's no-evidence summary judgment motion. See id.; Parkchester Holdings, Inc. v. Carrier Corp., No. 05-04-00912-CV, 2005 WL 995357, at *3 (Tex. App.-Dallas Apr. 29, 2005, no pet.) (mem. op.) ("A party responding to a no-evidence motion for summary judgment has the burden of pointing out to the trial court where the issues raised in its response can be found in its offered evidence.").
Further, the evidence fails to raise a fact issue on whether appellants relied on any misrepresentation by Autohaus regarding either the 2019 or 2020 services. The first two payments related to service on the S550 in November 2016; appellants' second amended petition does not contain any allegations related to the 2016 repairs, and Vladov testified by deposition that the S550 complaints stem from the June 2020 service visit. The third payment was for the ME control unit replacement, and Vladov testified that he knew of no problems with the replacement.
Because appellants failed to produce more than a scintilla of evidence to prove the required element of their fraud and fraudulent inducement claim that they acted in reliance on Autohaus's allegedly false representations, the trial court properly granted no-evidence summary judgment on the claim. We overrule appellants' seventh issue.
Having concluded that the trial court properly granted Autohaus's no-evidence summary judgment motion and ruled that appellants take nothing on any of their affirmative claims against Autohaus, we need not address their eighth and ninth issues regarding whether the trial court properly granted Autohaus's traditional summary judgment motion. See Tex. R. App. P. 47.1; Merriman, 407 S.W.3d at 248. We also need not address appellants' tenth and eleventh issues, which challenged whether they could recover mental anguish damages. See Tex. R. App. P. 47.1.
Conclusion
We affirm the trial court's order granting Autohaus's traditional and no-evidence motion for summary judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's April 20, 2022 Order Granting Defendant's Traditional and No Evidence Motion for Summary Judgment is AFFIRMED.
It is ORDERED that appellee AUTOHAUS, LLC D/B/A EWING AUTOMOTIVE GROUP AND MERCEDES BENZ OF PLANO recover its costs of this appeal from appellants NIKOLAY VLADOV, TEODORA ARSOVA, AND ELENA ARSOVA.