Appeal from the County Civil Court at Law No. 4 Harris
County, Texas Trial Court Cause No. 1047233
consists of Justices Christopher, Jewell, and Hassan.
Jimmy Vitela sued Appellee Gallery Model Homes, Inc. d/b/a
Gallery Furniture, alleging it failed to deliver the
furniture he purchased in a timely manner and in proper
condition. The trial court granted Gallery Furniture's
traditional and no-evidence motions for summary judgment and
Vitela timely appealed. For the reasons below, we reverse the
trial court's summary judgment and remand for further
ordered a leather sectional and ottoman from Gallery
Furniture in June 2013. Vitela claims that as he was making
his purchase, a Gallery Furniture salesperson told him
Gallery Furniture was "having a sale" on theater
furniture and custom ordered items, wherein Gallery Furniture
would "deliver within ten days or it was free."
Vitela states he "believed the salesman and agreed to
the deal he presented."
leather sectional was delivered to his home 14 days later.
Vitela claims the delivery did not include the ottoman he
ordered and that the leather sectional was not large enough
to accommodate the undelivered ottoman. Vitela notified
Gallery Furniture regarding his order's deficiencies.
Leather USA subsequently arrived at Vitela's residence
and removed the leather sectional's center section (which
would be expanded to accommodate the ottoman). Vitela asserts
that after removing the center section, the leather sectional
was left with "metal connection points attached"
and that these points caused damage to his floor, his
clothing, and his family members.
asserts both that the ottoman was never delivered and that
the leather sectional's center section was originally
delivered and then removed. Vitela states his attorney sent
"a demand letter to get the furniture or [to] get [his]
money back." Although he has paid for the furniture,
Vitela claims Gallery Furniture refuses both to deliver the
remainder of his order and to refund his money.
sued Gallery Furniture and asserted claims for breach of
contract, deceptive advertising, negligence, conversion,
unjust enrichment, and money had and received. Gallery
Furniture filed traditional and no-evidence motions for
summary judgment and sought judgment as a matter of law
against all of Vitela's claims. Gallery Furniture
attached to its motion an affidavit from its director of
operations and five exhibits. Vitela filed a response thereto
supported by affidavits from him and his wife, Lily
Vitela. Vitela's response also asserted
objections to Gallery Furniture's summary judgment
trial court signed an order on July 12, 2017 (1) granting
Gallery Furniture's traditional motion for summary
judgment and no-evidence motion for summary judgment, (2)
failing to reference or rule upon Vitela's evidentiary
objections, and (3) stating that it "is a Final Judgment
disposing of ALL issues and ALL parties."
filed a motion for new trial and, while his motion was
pending, filed a separate request asking the trial court to
rule on his evidentiary objections. The trial court
ultimately signed an order overruling Vitela's
timely appealed the trial ...