Appeal from the 234th District Court Harris County, Texas,
Trial Court Cause No. 2016-11376
consists of Justices Busby, Brown, and Jewell.
Alizabeth Nickols appeals from a summary judgment granted to
appellee Oasis Remarketing, LLC, d/b/a Discovery Auto
Enterprise ("Oasis") on Nickols's claims under
the Texas Deceptive Trade Practices Act ("DTPA").
We conclude that Oasis conclusively established its
entitlement to summary judgment on limitations grounds and
accordingly affirm the judgment.
accept as true the following facts taken from Nickols's
live petition or her response to the motion for summary
November 30, 2011, Nickols purchased a used Volkswagen
automobile from Oasis. The car came with a limited warranty
that expired at either 100, 000 miles or five years from the
date of purchase, whichever occurred first. The warranty
agreement was between Nickols and Auto Service Company, Inc.
("ASC"). When Nickols took possession, the
car's odometer read 75, 276 miles. As of December 1,
2015, the car's odometer read 89, 978 miles.
paid for various repairs until August 17, 2015, when Nickols
sought warranty coverage for additional repairs but was
denied. ASC refused to pay for additional repairs because the
warranty agreement limited repair payments to the car's
"NADA loan value, " and as of August 2015 ASC had
paid in excess of $800 over the loan value. ASC cited text in
the warranty agreement stating:
CASE SHALL THE TOTAL OF ALL REPAIRS PAID OR PAYABLE EXCEED
THE NADA LOAN VALUE OR VEHICLE PURCHASE PRICE, WHICHEVER IS
LESS AT THE TIME OF REPAIR(S).
copy of the warranty agreement in Nickols's possession
since the date of purchase was incomplete and did not show
the limitation of liability language.
filed suit against Oasis on February 23, 2016. Nickols
alleged that Oasis orally assured her when she bought the car
that the warranty would protect her for five years. Nickols
further contended she would not have bought the car if Oasis
had told her that the warranty coverage for repairs was
limited by the declining value of the car. She asserted a
claim under the DTPA, alleging that Oasis committed three
acts specifically prohibited under the act. See Tex.
Bus. & Com. Code § 17.46(b)(12), (20),
(24). She also alleged that Oasis's conduct
answered and asserted a counterclaim for attorneys' fees
under Texas Business and Commerce Code section 17.5052,
relating to ...