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McNeely v. Salado Crossing Holding, L.P.

Court of Appeals of Texas, Fourth District, San Antonio

June 14, 2017

Naomi MCNEELY and Joseph Matthew Cooper-Harper, Appellants
v.
SALADO CROSSING HOLDING, L.P., AVR Realty Company, LLC, and The Lynd Company, Appellees

         From the County Court at Law No. 2, Bexar County, Texas Trial Court No. 380298A Honorable David J. Rodriguez, Judge Presiding

          Sitting: Karen Angelini, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice.

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice.

         Naomi McNeely and her husband Joseph Matthew Cooper-Harper appeal the trial court's summary dismissal of several of their claims against appellees.[1] Naomi and Joseph argue appellees' motion for summary judgment failed to expressly present their grounds for summary judgment and there is more than a scintilla of evidence to support their claims for violations of the Deceptive Trade Practices Act (DTPA), fraud, misrepresentation, constructive eviction, wrongful eviction, and gross negligence. We affirm the trial court's judgment.

         Background

         Naomi and Joseph were moving to San Antonio from Pearsall, Texas, and sought to lease an apartment. They toured Salado Crossing apartments with two leasing agents. The leasing agents stated the property was "well managed, " they "had a quick turnaround on any complaints, " and "they will answer your maintenance issues within 48 hours." Based on these statements, the services Salado Crossing offered, and Salado Crossing's proximity to Joseph's school, Naomi executed a lease to rent an apartment at Salado Crossing starting in September 2008. Naomi listed Joseph as an occupant of the apartment on the lease. The lease misstated that "Salado Crossing Apartments, L.P." rather than "Salado Crossing Holding, L.P." was the property owner. In 2009, Naomi renewed the lease through August 31, 2010.

         In June 2010, Naomi and Joseph notified Salado Crossing they intended to surrender possession of the apartment on August 31, 2010. Joseph spoke with Erik Wyatt, an agent of the property management company, and told him they were vacating the apartment on August 28, 2010, but they would return on August 31, 2010, for the belongings they had left in the apartment. Joseph and Wyatt also scheduled a final walkthrough of the apartment for August 31, 2010. On August 28, 2010, Joseph again confirmed with Wyatt their final walkthrough was scheduled for August 31, 2010, and reminded Wyatt they would surrender the keys and remove their belongings on that day. Naomi spoke with another agent on August 28, 2010, and told the agent she and Joseph would be back for the walkthrough.

         Sometime between August 28 and August 31, 2010, Wyatt instructed a housekeeper, Tammie Shook, to enter Naomi and Joseph's apartment and "trash it out." Using a key Wyatt had given her, Shook entered the apartment; disposed of some of the personal property in a dumpster; left some furniture, cleaning supplies, and kitchen accessories in the apartment; and took a KitchenAid blender to her on-site apartment unit for her personal use. Shook disposed of Naomi and Joseph's "memorabilia box, " containing love letters, photographs, and other personal mementos Naomi and Joseph had exchanged over the course of their relationship, including mementos exchanged when Joseph was serving in Iraq as a member of the U.S. Army National Guard.

         On August 31, 2010, before returning for the final walkthrough, Joseph called Salado Crossing to tell them he was en route. A Salado Crossing agent told him the walkthrough was unnecessary and "you don't have to come, don't worry about it." Joseph nevertheless returned to the apartment and discovered some of his property was missing. Joseph contacted Wyatt, who initially denied knowing who had entered the apartment. After making a phone call, Wyatt went to Shook's apartment, retrieved the KitchenAid blender, and returned it to Joseph. Joseph then searched a dumpster where he found the memorabilia box, but some of its contents were missing. The missing contents and other missing property were never recovered. Naomi and Joseph complained to Salado Crossing and sought reimbursement for their lost and destroyed property, but Salado Crossing did not immediately resolve Naomi and Joseph's complaint to their satisfaction. Wyatt offered Joseph a $50 gift card for a bargain store and told Joseph to follow up with the property management company. Joseph did not accept the gift card.

         Naomi and Joseph filed suit, alleging a multitude of claims against Salado Crossing; Salado Crossing's general partner, AVR Realty; and the property management company, The Lynd Company. The claims included trespass to real property and personal property; conversion; violations of the DTPA; invasion of privacy; negligence, negligence per se, and gross negligence; fraud; negligent and intentional misrepresentation; breach of contract; breach of express and implied covenants; bailment; wrongful eviction; constructive eviction; and bad faith retention of a security deposit. Appellees filed a no-evidence motion for partial summary judgment on several of Naomi and Joseph's claims. The trial court granted the motion in part and denied it in part. The trial court rendered a partial summary judgment, dismissing Naomi and Joseph's claims for violations of the DTPA, breach of implied covenant, fraud, misrepresentation, constructive eviction, wrongful eviction, and gross negligence.[2] The trial court severed the dismissed claims into a separate cause, and Naomi and Joseph appealed.

         Standard of Review

         "We review a summary judgment de novo." City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561 (Tex. App.-San Antonio 2000, pet. denied). "When a party moves for a no-evidence summary judgment, the nonmovant must produce some evidence raising a genuine issue of material fact." Romo v. Tex. Dep't of Transp., 48 S.W.3d 265, 269 (Tex. App.-San Antonio 2001, no pet.) (citing Tex.R.Civ.P. 166a(i)). The nonmovant does not have the burden to marshal its evidence, but it must produce some evidence that raises a fact issue on the challenged element. See id. We take as true all evidence favorable to the nonmovant and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of San Antonio, 47 S.W.3d at 561. When, as here, the trial court does not specify the grounds for granting summary judgment, we must affirm if any of the grounds presented in the summary judgment motion are meritorious. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).

         Sufficiency of Appellees' No-Evidence Motion

         Naomi and Joseph argue appellees' no-evidence motion was conclusory and not sufficiently specific. Rule 166a governs no-evidence motions for summary judgment:

After adequate time for discovery, a party without presenting summary judgment evidence 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. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

         Tex. R. Civ. P. 166a(i). "Rule 166a(i) does not prescribe a particular form, style or outline for a no evidence motion . . . ." Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 536 (Tex. App.-Tyler 2000, pet. withdrawn). Although a summary judgment motion must not be conclusory, a no-evidence motion for summary judgment is sufficiently specific if it asserts there is no evidence of a particular element of a claim or defense. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310-11 (Tex. 2009) (citing Tex.R.Civ.P. 166a(i), cmt. 1997).

         If the grounds for summary judgment are not clear, the nonmovant generally must specially except to preserve error. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 (Tex. 1995). However, the nonmovant need not object if the grounds for summary judgment are not expressly presented in the motion itself because the motion is insufficient as a matter of law. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Grounds are sufficiently specific if they give "fair notice" to the nonmovant. Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex. App.-Austin 1995, writ denied). Because appellees' no-evidence motion challenges different elements of Naomi and Joseph's various claims, we address the sufficiency of appellees' motion in the context of each claim.

         Deceptive Trade Practices Act

         Naomi and Joseph alleged DTPA claims based on "false, misleading, or deceptive acts or practices" under the DTPA's "laundry list, "[3] breaches of warranties, and unconscionable actions or courses of action. Appellees' motion specifically addressed Naomi and Joseph's "laundry list" claims, breach of warranty claims, and unconscionability claims. Naomi and Joseph argue the trial court erred by rendering summary judgment on these claims. We address each category of DTPA claim in turn.

         A. "Laundry List" ...


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