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Vitela v. Gallery Model Homes, Inc.

Court of Appeals of Texas, Fourteenth District

April 2, 2019

JIMMY VITELA, Appellant
v.
GALLERY MODEL HOMES, INC. D/B/A GALLERY FURNITURE, Appellee

          On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1047233

          Panel consists of Justices Christopher, Jewell, and Hassan.

          MEMORANDUM OPINION

          MEAGAN HASSAN JUSTICE

         Appellant 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 proceedings.

         Background

         I. Facts

         Vitela 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."

         Vitela's 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.

         United 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.

         Vitela 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.

         II. Legal Proceedings

         Vitela 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.[1] Vitela's response also asserted objections to Gallery Furniture's summary judgment evidence.

         The 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."

         Vitela 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 evidentiary objections.

         Vitela timely appealed the trial ...


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