Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 2, Bexar County, Texas Trial
Court No. 380298A Honorable David J. Rodriguez, Judge
Sitting: Karen Angelini, Justice, Luz Elena D. Chapa,
Justice, Irene Rios, Justice.
Elena D. Chapa, Justice.
McNeely and her husband Joseph Matthew Cooper-Harper appeal
the trial court's summary dismissal of several of their
claims against appellees. 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
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.
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.
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.
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.
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. The trial court
severed the dismissed claims into a separate cause, and Naomi
and Joseph appealed.
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).
of Appellees' No-Evidence Motion
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
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).
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.
Trade Practices Act
and Joseph alleged DTPA claims based on "false,
misleading, or deceptive acts or practices" under the
DTPA's "laundry list, " 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.
"Laundry List" ...