Anthony Duke, Sr. and Carolyn Duke v. Caterpillar, Inc. A/K/A "CAT" and Mustang Tractor and Equipment Company, Inc.

Opinion issued March 10, 2005 In The Court of Appeals For The First District of Texas NO. 01-03-00840-CV ANTHONY DUKE, SR. and CAROLYN DUKE, Appellants V. CATERPILLAR, INC., A/K/A “CAT” and MUSTANG TRACTOR AND EQUIPMENT COMPANY, INC., Appellees On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2002-26569 MEMORANDUM OPINION This is an appeal from a no-evidence summary judgment rendered in favor of appellees, Caterpillar, Inc. a/k/a CAT (“Caterpillar”), and Mustang Tractor and Equipment Company (“Mustang”). Appellants, Anthony Duke, Sr. and Carolyn Duke (“the Dukes”), filed a suit for damages arising out of their purchase of a tractor from Mustang, which was manufactured by Caterpillar. On appeal, the issue is whether the Dukes produced more than a scintilla of evidence to raise a genuine issue of material fact. We affirm. BACKGROUND On November 18, 1998, Dan Mathews, a salesman employed by Mustang, sold the Dukes a Challenger model CR 55 agricultural tractor manufactured by Caterpillar. Mathews also sold the Dukes a two-year/2,000-hour power train warranty, which provided for repair or replacement of parts that fail due to defects in Caterpillar’s workmanship or materials after notice is given to Caterpillar. As a down payment on the tractor, the Dukes traded in their old Ford tractor to Mustang. The Dukes allege that Mathews represented to them that the Caterpillar tractor was brand new. The Dukes claim that the tractor did not perform properly after their purchase. Mustang initially responded by performing repairs on the tractor as required by the warranty. But the Dukes allege that Mustang decided to cease performing repairs and service on the tractor even though it remained under warranty and the tractor still required work. The Dukes further allege that the tractor Mustang sold to them contained a rebuilt turbocharger, which is an engine component. The Dukes sued Mustang and Caterpillar for (1) breach of contract, (2) violations of the Deceptive Trade Practices Act, (3) fraud, (4) negligent misrepresentation, and (5) unjust enrichment. The Dukes allege that Caterpillar and its dealer, Mustang, sold them a tractor that they had represented as new to the Dukes, but which, in fact, Caterpillar knew contained a rebuilt engine. Caterpillar filed a no-evidence motion for summary judgment, claiming that the Dukes did not produce a scintilla of evidence on any of their theories of liability. Specifically, Caterpillar claimed the Dukes failed to present any evidence that (1) Caterpillar entered into a contract with the Dukes; (2) that the engine installed in the Dukes’ tractor was a “used rebuilt engine”; (3) that any unfair or deceptive practice of Caterpillar was a producing cause of the Dukes’ alleged damages; and (4) that the Dukes’ damages were caused by any defect in Caterpillar workmanship or materials. Mustang also filed a no-evidence motion for summary judgment. In their response, the Dukes tendered the entire transcripts of their depositions, their affidavits, the affidavit of Raymond Thomas, and several documents related to the purchase of the tractor. The Dukes contend that these materials raise genuine issues of fact, thereby precluding summary judgment. The trial court granted Mustang’s and Caterpillar’s no-evidence motions for summary judgment and rendered a take-nothing judgment against the Dukes. This appeal followed. DISCUSSION In their two points of error, the Dukes contend that the trial judge erred by granting Mustang’s and Caterpillar’s summary judgment motions because (1) the Dukes raised material fact issues and (2) these issues of material fact were supported by competent summary judgment proof that established their causes of action against both Mustang and Caterpillar. In response, Mustang argues that the Dukes presented no competent summary judgment evidence before the trial court and that the Dukes did not complain that the trial court erred in sustaining Mustang’s objections to much of the Dukes’ evidence. Caterpillar argues that (1) the Dukes only made generic references to summary judgment evidence without explaining how the evidence raised fact issues, (2) the trial court’s judgment disposes of the Dukes’ claims on grounds not challenged on appeal; and (3) the Dukes did not raise issues of material fact on their breach-of-contract or unjust enrichment claims. A no-evidence motion for summary judgment must be granted if, after an adequate time for discovery, (1) the moving party asserts 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; and (2) the non-movant produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences to determine whether more than a scintilla of probative evidence was presented on the challenged elements of the non-movant’s claim. See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Jones v. Bank United of Texas, FSB, 51 S.W.3d 341, 343 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). If a trial court’s order does not specify the grounds under which summary judgment was granted, then we affirm the judgment on any theory advanced in the motion that is meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Breach of Contract To prevail on a breach of contract claim, a plaintiff must prove (1) the existence of a valid contract; (2) performance or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Valero Mktg. Co. v. Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Mustang Here, Mustang did not dispute the existence of a valid contract with the Dukes, but it argued that the Dukes presented no evidence of the other three elements—tendered performance, defendant’s breach, and plaintiff’s damages—of a breach of contract action. In their response to Mustang’s motion for summary judgment, the only evidence of their breach of contract claim to which the Dukes referred the trial court was Plaintiff’s Exhibits “A” and “B”, the affidavits of Anthony Duke and Carolyn Duke. However, the affidavits are neither signed nor notarized. An affidavit is defined as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011 (Vernon 1998). To constitute an affidavit, a written statement must be signed by the person making the statement. De Los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 755 (Tex. App.—San Antonio 1990, no writ), overruled on other grounds, 876 S.W.2d 314 (Tex. 1994). Accordingly, an unsworn statement is not competent summary judgment proof. Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970); Sturm Jewelry, Inc. v. First Nat’l Bank, Franklin, 593 S.W.2d 813, 814 (Tex. App.—Waco 1980, no writ). Therefore, we will not consider the Dukes’ unsworn statements as evidence responding to the defendants’ no-evidence motions for summary judgment. Without the unsigned affidavits, there is insufficient evidence to support the element of defendant’s breach, as the affidavits are the only evidence relied upon by the Dukes in their response to Mustang’s motion for summary judgment. The Dukes claim that Mustang breached its contract with the Dukes by refusing to honor its obligations under a warranty that covered repairs to the tractor. However, the Dukes did not point out any summary judgment evidence to support their claim. Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on each of the challenged elements. Tex. R. Civ. P. 166a(i). Therefore, we find no genuine issue of material fact on the breach-of-contract claim against Mustang. Caterpillar Caterpillar disputes that it had a contract with the Dukes. The Dukes did not present any evidence that a valid contract existed between the Dukes and Caterpillar. The Dukes argued that the Equipment Invoice marked Plaintiff’s Exhibit “D” and the Service Letter marked Plaintiff’s Exhibit “G” established (1) the representations made by Caterpillar as to the nature and quality of the tractor the Dukes purchased; (2) the Dukes’ reliance on these representations; (3) Caterpillar’s breach of this contract; and (4) the subsequent damages sustained by the Dukes because of Caterpillar’s failure to provide a new tractor. However, much of the evidence the Dukes relied on to present a fact issue was objected to by Caterpillar and the trial court sustained those objections. Caterpillar’s objection to Plaintiff’s Exhibit “G” as incomplete was sustained by the trial court, a decision that has not been challenged on appeal by the Dukes. Therefore, the only evidence considered by the trial court for this breach of contract claim against Caterpillar was Exhibit “D”, Mustang’s Equipment Invoice. Although the Dukes argue that Caterpillar’s name and emblem on the invoice is evidence of a contract between Caterpillar and the Dukes, this is not sufficient evidence to raise a genuine issue of a material fact as to the existence of such a contract. To prove a valid, enforceable contract, a party must establish (1) an offer, (2) an acceptance, (3) mutual assent, (4) execution and delivery of the contract with the intent that it be mutual and binding, and (5) mutuality of obligations supporting the contract. Texas Gas Util. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970). The mere existence of Caterpillar’s emblem on the invoice does not raise a material fact as to the existence of a contract between Caterpillar and the Dukes. Accordingly, because the Dukes did not present any evidence to show the existence of at least one essential element of a breach of contract claim, the trial court did not err in granting Mustang’s and Caterpillar’s no-evidence motions for summary judgment on the Dukes’ claim for breach of contract. Deceptive Trade Practices The elements of a claim under the Deceptive Trade Practices-Consumer Protection Act (“DTPA”) are (1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a producing cause of the consumer’s damages. See Tex. Bus. & Com. Code Ann. § 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 478 (Tex. 1995). A DTPA claim can also arise from the breach of express or implied warranties or from any unconscionable action or course of action. See Tex. Bus. & Com. Code Ann. § 17.50(a)(2)-(3). Generally, in order to recover for breach of an express warranty under the DTPA, a plaintiff must prove (1) he or she is a consumer, (2) a warranty was made, (3) the warranty was breached, and (4) as a result of the breach, an injury resulted. U.S. Tire-Tech v. Boeran, B.V., 110 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); McDade v. Tex. Commerce Bank, N.A., 822 S.W.2d 713, 718 (Tex. App.—Houston [1st Dist.] 1991, writ denied); see Tex. Bus. & Com. Code Ann. § 17.50(a)(2). Mustang Mustang argued that the Dukes presented no evidence of a false, misleading, or deceptive act or practice; their reliance; or producing cause. Again, the only evidence considered by the trial court was Plaintiff’s Exhibit “G”, a Service Letter from Caterpillar, and Plaintiff’s Exhibit “D”, Mustang’s Equipment Invoice. Exhibit “G” is a six-page letter from Caterpillar detailing what adjusts can be made to certain Challenger 55 tractors to improve their performance. Although Exhibit “G” contains instructions from Challenger on how to remove the current turbocharger from the engine, it does not indicate that a replacement turbocharger would be defective or would in any way hamper the performance of the tractor. We find no evidence raising a fact issue as to the reliance element of a DTPA claim. The Dukes argued that the invoice established that the Dukes acquired a “brand new” tractor from Mustang and that Mustang’s salesperson Mathews represented to the Dukes that they were purchasing a new tractor. Even if the invoice from Mustang were enough to raise a fact question on this element of a false, misleading, or deceptive act, the Dukes did not present more than a scintilla of evidence on the element requiring them to prove that they relied on these representations to their detriment. See Tex. Bus. & Com. Code Ann. § 17.50(a). Caterpillar The Dukes allege deceptive trade practices under section 17.46(b) of the DTPA as well as breaches of implied and express warranties by Caterpillar. In regard to its alleged deceptive trade practices, Caterpillar claims the Dukes presented no evidence that Caterpillar made false representations, that the Dukes relied on any alleged misrepresentations, or that the alleged misrepresentations were the producing cause of damages to the Dukes. In regard to the Dukes’ alleged breach of the express warranty, Caterpillar claims the Dukes presented no evidence of the existence of an unrepaired defect in Caterpillar’s workmanship or materials or that the Dukes gave Caterpillar notice of such a defect as required for Caterpillar’s express warranty to come into effect. Caterpillar also claims there is no evidence that any alleged defect under the express warranty was a producing cause of the Dukes’ damages. In its alleged breach of implied warranties, Caterpillar claims no evidence supports the creation of any implied warranty. In fact, Caterpillar’s express warranty disclaims the implied warranties of merchantability and of fitness for a particular purpose. As evidence of its DTPA claims against Caterpillar, the Dukes presented the Mustang Equipment Invoice (Exhibit “D”), a three-page document that indicates the tractor’s date of manufacture was 1997 (Exhibit “I”), and Exhibits “G” and “H,” which were struck in their entirety and not considered by the trial court. These exhibits did not present more than a scintilla of evidence on the elements that required the Dukes to prove that (1) they relied on the representations Caterpillar made that the tractor was new and (2) such misrepresentations were the producing cause of their damages. See Tex. Bus. & Com. Code Ann. § 17.50(a). The Dukes did not present more than a scintilla of evidence to support their breach of express warranty claim against Caterpillar because the Dukes did not present any evidence of a defect in Caterpillar’s materials and/or workmanship, which would trigger performance by Caterpillar under the express warranty. Moreover, in their response to the defendants’ motions for summary judgment, the Dukes admitted that they had “no evidence that Plaintiffs notified Caterpillar of the breaches of warranties . . . .” The Dukes did not present more than a scintilla of evidence to support their breach of implied warranties claim against Caterpillar because the Dukes did not present any evidence to counter the written disclaimer of the implied warranties of merchantability and of fitness for a particular purpose that are found in paragraph two of the express warranty between the Dukes and Caterpillar. Fraud To prevail on a fraud claim, a plaintiff must prove (1) a material representation was made; (2) it was false; (3) it was known to be false when made or was recklessly asserted without knowledge of its truth; (4) it was intended to be relied upon; (5) the other party acted in reliance upon it; and (6) it caused injury to the other party. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Mustang Mustang argued that the Dukes presented no evidence of any element of a fraud cause of action. Although the Dukes presented evidence for the first two elements of a fraud cause of action, for the essential elements of knowing or reckless representation, reliance, and injury, the Dukes rely solely on their unsigned affidavits, which are not competent summary judgment evidence. Therefore, the Dukes do not raise a fact issue on these elements of fraud. Caterpillar Like Mustang, Caterpillar also argued that the Dukes presented no evidence of any element of a fraud cause of action. In response to Caterpillar’s motion for summary judgment, the Dukes did not cite, refer to, identify, or otherwise direct the trial court to any specific evidence to raise a fact issue on any element of a fraud cause of action. The non-movant has the burden of pointing out to the trial court where in the evidence the issues set forth in the response are raised. See Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1996, no writ). A party must expressly and specifically identify the supporting evidence on file which it seeks to have considered by the trial court. Boeker v. Syptak, 916 S.W.2d 59, 61 (Tex. App.—Houston [1st Dist.] 1996, no writ). Because the Dukes did not direct the trial court to any summary judgment evidence in support of their argument regarding their fraud claim against Caterpillar, this Court may not consider the evidence the Dukes cite for the first time on appeal. See Guthrie, 934 S.W.2d at 826. A no-evidence summary judgment motion may not properly be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Therefore, no evidence raised a fact issue on the fraud claim. Negligent Misrepresentation To prevail on a negligent misrepresentation claim, a plaintiff must prove that (1) a defendant made a representation to the plaintiff in the course of the defendant’s business or in a transaction in which the defendant had a pecuniary interest; (2) the defendant supplied false information for the guidance of others; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; (4) the plaintiff justifiably relied on the representation; and (5) the defendant’s negligent misrepresentation proximately caused the plaintiff’s injury. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999). Mustang In its no-evidence motion for summary judgment, Mustang argued that the Dukes presented no evidence of any element of a negligent misrepresentation cause of action except the first element. The evidence the Dukes presented at trial to raise a fact issue on this claim was their unsigned affidavits, which are not competent summary judgment evidence. Thus, no evidence was presented by the Dukes to raise a fact issue as to the other elements of a negligent misrepresentation claim against Mustang. Caterpillar Caterpillar also argued that the Dukes presented no evidence of any element of a negligent misrepresentation cause of action. Again, the Dukes did not cite, refer to, identify, or otherwise direct the trial court to any specific evidence to raise a fact issue on any element of a negligent misrepresentation cause of action. Therefore, no evidence raised a fact issue on this cause of action. Unjust Enrichment A plaintiff may recover under an unjust enrichment theory when the defendant has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). Mustang & Caterpillar In support of their unjust enrichment claim against Mustang and their claim against Caterpillar, the Dukes only referred the trial court to Exhibit “J.” Exhibit “J” is a letter, dated April 24, 2003, from an attorney for Caterpillar to the Dukes’ trial counsel, setting forth “the numbers in the Caterpillar Financial Judgment.” In their brief on appeal, the Dukes identify this letter as relating to a “judgment against Duke for approximately $106,000.00 arising from Duke’s ownership of the tractor and subsequent repossession of that tractor by Caterpillar.” However, no evidence in the record is presented to support this assertion that was only made in their brief on appeal. The letter does not provide such a description of the judgment, nor do the Dukes explain the relevance of the letter to their unjust enrichment claim. The Dukes have failed to present more than a scintilla of evidence to raise a fact question on their unjust enrichment claims against either Mustang or Caterpillar. Considering the evidence in the light most favorable to the Dukes, we hold that there is no evidence to support the conclusion that the Dukes raised a fact issue on the grounds that Mustang and Caterpillar challenged in their motions for summary judgment. Because the Dukes would carry the burden of proving all elements of their causes of action at trial, but failed to present any such evidence on at least one element of all five of their causes of action in response to the defendants’ no-evidence motions for summary judgment, the trial court properly granted both Mustang’s and Caterpillar’s motions for summary judgment. Accordingly, we overrule the Dukes’ sole issue.CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. 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