Steven Webb, D/B/A Leander Trux-N-Karz v. Glenco Upshaw

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-15-00401-CV

STEVEN WEBB, D/B/A LEANDER TRUX-N-KARZ, APPELLANT

V.

GLENCO UPSHAW, APPELLEE

On Appeal from the 368th District Court
Williamson County, Texas1
Trial Court No. 11-613-C368, Honorable Rick J. Kennon, Presiding

May 20, 2016

MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Steven Webb, appeals the granting of a motion for summary judgment

in favor of Glenco Upshaw in Upshaw’s Deceptive Trade Practice Act (DTPA) suit

against Webb.2 For the reasons hereinafter set forth, we will affirm in part and reverse

in part.

1
Pursuant to the Supreme Court’s docket equalization efforts, this case was transferred to this
Court from the Third Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
2
See TEX. BUS. & COM. CODE ANN. §§ 17.01-.926 (West 2011 & Supp. 2015). Further reference
to the Texas Business & Commerce Code will be by reference to “section ____” or “§ ____.”
 Factual and Procedural Background

This suit arose out of the purchase by Upshaw of a 1997 Ford Mustang from

Webb. Upshaw alleges that, at the time of the purchase, he was in the market to buy a

car that got better gas mileage than his Ford SUV. In connection with this effort, he

visited Trux-N-Karz in Leander, Texas. At the time he visited the car lot, he dealt with

Webb.

According to Upshaw, he saw the Mustang and began asking about the vehicle.

Upshaw further alleges that Webb made certain representations about the Mustang to

him. Principally, Webb represented that the Mustang had less than 100,000 miles on it,

the radio was operational, the Mustang was in great driving condition, and the Mustang

had no problems.

When Upshaw viewed the Mustang he was not able to test-drive it because it

was surrounded by other vehicles in such a manner that it could not be driven.

However, Webb advised that he could start the car and Upshaw did so. Upshaw

alleges that the car idled smoothly. Upshaw contends that he was specifically advised

that the Mustang had not been in any wrecks and had no mechanical problems. When

Upshaw asked about a CARFAX3 report, he was advised by Webb that Webb did not

have a CARFAX report on the Mustang.

After viewing the Mustang, Upshaw agreed to trade in his Ford SUV for the

Mustang. Upshaw agreed to pick the Mustang up in a couple of days. Upon returning

to the car lot two days later, Upshaw picked up the Mustang and headed to College

3
CARFAX is a nationwide reporting system whereby a purchaser can review the ownership and
operational history of a vehicle.

2
Station, where he attended school. Before travelling out of the city limits of Leander,

Upshaw noticed that the speedometer, odometer, air conditioner, and heater were not

operational. Upshaw attempted to contact Webb immediately by telephone; however,

Webb refused to answer his calls.

Upshaw finally spoke to Webb when Upshaw used a cell phone other than his

own. Webb was asked to rescind the trade and refused. According to Upshaw, Webb

advised the only way he could get his Ford SUV back was to pay an additional $550.

Eventually, Webb advised Upshaw that another customer had purchased his Ford SUV.

When Upshaw further inspected the Mustang, he found that fuses were missing.

After he changed the fuses the radio worked; however, the check engine light

immediately came on. Within days, the Mustang would not even start and, eventually, it

was towed from his apartment complex.

Upshaw sent a demand letter to Webb that went unanswered. Thereafter, this

lawsuit was initiated. Upshaw filed suit alleging a number of causes of action. Those

actions, as pertinent to this appeal, are as follows:

1. That Webb committed false, misleading and deceptive acts, practices,
and/or omissions as defined by section 17.46(a) of the DTPA. See §
17.46(a).

2. Webb’s actions constitute an unconscionable action or course of action
by taking advantage of Upshaw’s lack of knowledge, ability, experience, or
capacity. See § 17.45(5).

3. Webb represented that the goods in question were of a particular
standard, quality, or grade, when they were of another. See § 17.46(b).

4. Webb engaged in false, misleading, or deceptive acts as provided by
section 392.304(a)(8) of the Texas Finance Code. Specifically, Webb
engaged in misrepresentation of the character, extent, and amount of

3
 Upshaw’s consumer debt, and further, misrepresented the consumer
debt’s status in a judicial or governmental proceeding by threats to
repossess the vehicle.

Webb answered the lawsuit with a pro se response wherein he claimed to have

never made any statements regarding the history of the car and claimed to have

furnished Upshaw with a CARFAX report. Webb was eventually served with various

discovery requests which included original and amended requests for admissions.

None of the discovery requests were ever answered by Webb.

Upshaw filed a motion for summary judgment, and Webb never filed a response

to the motion. The trial court granted a summary judgment on September 10, 2015.

The judgment entered by the trial court found that Upshaw had established entitlement

to judgment under the DTPA, Texas Debt Collection Act, and common law fraud. The

trial court further found that Upshaw had elected to recover pursuant to the DTPA. The

trial court then awarded $10,950 in actual damages to Upshaw, and, based upon

Webb’s knowingly committing violations under the DTPA, trebled Upshaw’s economic

damages to the sum of $32,850. The trial court further awarded Upshaw attorney’s fees

of $15,000.

Webb filed a motion for new trial, contending that his failure to answer the motion

for summary judgment was due to mistake or inadvertence and not conscious

indifference, that he had a defense to the suit, and that granting the motion for new trial

would not cause any detrimental delay to Upshaw. The trial court overruled the motion

for new trial following a hearing on the same. This appeal resulted.

4
 Webb now contends on appeal that the trial court erroneously (1) granted

Upshaw’s motion for summary judgment and awarded the amount of damages that it

did, and (2) denied Webb’s motion for new trial.

Motion for New Trial

Although Webb presents this as his second issue, we will address it first because

it would, if sustained, provide the greatest relief. See In re K.W., 138 S.W.3d 420, 428

(Tex. App.—Fort Worth 2004, pet. denied).

Webb’s motion for new trial alleges that he first had notice of the summary

judgment when he received the “Notice of Court Order” from the Williamson County

District Clerk that notified him that a final judgment had been entered against him on

September 10, 2015. Webb asserted in his amended motion for new trial that, when he

received the motion, it appeared as 101 pages that seemed to have been tossed in the

air and then shuffled into an envelope. He further contends that, buried on the last

page, was a notice of hearing but that the motion and exhibits were in no order and, as

a result of this, he was not aware that the motion for summary judgment was set for a

hearing. Attached to his amended motion for new trial was the declaration of Steven

Webb that essentially tracked the assertions of the motion.

Webb contends that he met the requirements of Craddock v. Sunshine Bus

Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Under Craddock, a movant for a new trial

must (1) establish that the failure to answer was not intentional or due to conscious

indifference but, rather, was due to mistake or an accident, (2) set up a meritorious

5
defense, and (3) demonstrate that the granting of a new trial will not cause delay or

otherwise injure the plaintiff. See id.

We review a trial court’s ruling on a motion for new trial under an abuse of

discretion standard. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.

2009) (per curiam). A trial court abuses its discretion when it acts in an unreasonable or

arbitrary manner or without reference to any guiding rules and principles. K-Mart Corp.

v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).

However, the first question we must answer is whether the Craddock test is the

applicable test with which to view the trial court’s rulings. In the case of Carpenter v.

Cimarron, the Texas Supreme Court held that, in a summary judgment default situation

where the defaulting party failed to file a timely response but had the time prior to entry

of the summary judgment to obtain leave to file an untimely response or to obtain a

continuance, the Craddock test did not apply. See Carpenter v. Cimarron, 98 S.W.3d

682, 686 (Tex. 2002). However, the court in Carpenter left open the test to be applied

when the defaulting party did not learn of the summary judgment until after the summary

judgment had been entered. See id.

The Austin Court of Appeals addressed the question of which standard to apply

when reviewing a default summary judgment in the no evidence summary judgment

proceeding. See Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc.,

143 S.W.3d 538, 544 (Tex. App.—Austin 2004, no pet.). The Limestone court

acknowledged that it had never determined whether to apply Craddock or Cimarron

when a summary judgment nonmovant establishes they did not receive the motion.

See id. at 543–44. Eventually, the Limestone court determined that, under the facts of
6
the case, the nonmonvant had established that it did not receive notice of the summary

judgment and that the trial court’s grant of the summary judgment should be reversed.

See id. at 547.

The Austin Court of Appeals next addressed the issue in Lopez v. Cox Tex.

Newspapers, L.P., No. 03-14-00331-CV, 2015 Tex. App. LEXIS 7653 (Tex. App.—

Austin July 23, 2015, no pet.) (mem. op.). In Lopez, the appellant, Lopez, argued that

the trial court abused its discretion because it did not apply a modified version of the

Craddock test to his motion because he did not learn of the default until after judgment

had been rendered. See id. at *3. Lopez’s motion asserted that (1) his failure to appear

was the result of mistake or accident, (2) that he had a meritorious defense, and (3) Cox

lacked standing to pursue its claim against him. See id. After reviewing the history of

the Craddock test in light of the Texas Supreme Court’s opinion in Carpenter, the Lopez

court decided it need not decide whether Craddock or Carpenter applied because the

first element in either case was the same and Lopez had not met that requirement. See

id. at *6. The defaulting party, under either standard, must establish that the failure to

respond to the summary judgment was not intentional or the result of conscious

indifference but instead was the result of mistake or accident. See id. at *5. Eventually,

the court concluded that Lopez had failed to meet the first element of either standard

and affirmed the trial court’s denial of the motion for new trial. See id. at *13.

As in Lopez, we are not going to attempt to determine which standard should

apply; rather, we will concentrate on the first issue regarding the failure to file a

response to the summary judgment motion: whether Webb can establish that his failure

7
to respond to the motion for summary judgment was not intentional or the result of

conscious indifference.

According to Webb’s declaration, he received an envelope in early August of

2015 by personal delivery from the office of the attorney representing Upshaw.

Additionally, Webb avers that when he opened the envelope it was a “jumbled mess of

papers.” Webb stated he eventually found the first page of the motion and read that it

was a motion for summary judgment; however, he also stated he never saw the last

page where there was a “Notice of Hearing.” Webb goes on to say that he hired an

attorney and assumed he would later receive a notice of hearing, and that he did not

learn of the summary judgment hearing until he got the notice of judgment being

entered against him.

Such was the evidence presented in support of his motion for new trial. If these

assertions are presented to the trial court alone, then it might be said that Webb met the

burden of establishing that his failure to answer the summary judgment motion was not

intentional or due to conscious indifference. See Sutherland v. Spencer, 376 S.W.3d

752, 755 (Tex. 2012) (holding that a defendant satisfies its burden as to the first

Craddock element when its factual assertions, if true, negate intentional or consciously

indifferent conduct by the defendant and the factual assertions are not contradicted by

the plaintiff). However, here, the factual assertions were contradicted by Upshaw’s

attorney. At the motion for new trial hearing, the legal assistant for Upshaw’s attorney

testified that she properly ordered and stapled the motion for summary judgment

document. Further, the witness testified that there was no way a delivery person could

have dropped and reordered the documents because the same were in an envelope

8
that had been double sealed. Additional testimony was provided by the husband of

Upshaw’s counsel, Mr. McGirr. He testified that he delivered the sealed envelope to the

person listed on the outside of the envelope. Further, Mr. McGirr testified that the

envelope was sealed and the papers were in the order that they were when they were

delivered to him.

In determining if the appellant’s factual assertions are controverted, the court

looks to all the evidence in the record. See Dir., State Emps. Workers’ Comp. Div. v.

Evans, 889 S.W.2d 266, 269 (Tex. 1994). Here, the essence of Webb’s factual

assertions was contradicted by the evidence that Upshaw put in the record at the

hearing on the motion for new trial. Therefore, it fell upon the trial court to determine the

fact question raised by the conflicting evidence it heard at the motion for new trial

hearing. See Todd v. Heinrich, No. 01-10-00267-CV, 2011 Tex. App. LEXIS 4258, at

*18-19 (Tex. App.—Houston [1st Dist.] June 2, 2011, no pet.) (mem. op.) (citing

Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.—Corpus Christi 1990, writ denied)).

The trial judge was charged with the responsibility of ascertaining the true facts, and it

was within its province to judge the credibility of the witnesses and to determine the

weight to be given their testimony. See id.

After reviewing the evidence heard by the trial court at the motion for new trial,

we cannot say that the trial court acted in an unreasonable or arbitrary manner or

without reference to any guiding rules and principles. See K-Mart Corp., 24 S.W.3d at

360. Accordingly we overrule Webb’s issue to the contrary.

9
 DTPA Claims

Standard of Review

We review the trial court’s granting of summary judgment de novo. Ferguson v.

Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam). We

consider all of the evidence in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant, if a reasonable factfinder could, and disregarding

contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 582 (Tex. 2007). The movant for a traditional summary

judgment has the burden of showing that there is no genuine issue of material fact and

that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The movant’s

motion for summary judgment must carry its burden of establishing its right to summary

judgment, and the nonmovant need not respond to the motion to contend on appeal that

the movant’s summary judgment proof is insufficient as a matter of law to support the

summary judgment. See State v. Ninety Thousand Two Hundred Thirty-Five Dollars &

No Cents, 390 S.W.3d 289, 292 (Tex. 2012).

The judgment of the trial court reflects that the trial court found that Upshaw was

entitled to a summary judgment on his claims under DTPA, Texas Debt Collection Act,

and common law fraud. However, the judgment further reflects that Upshaw elected to

recover under the DTPA. We will therefore analyze the propriety of the granting of the

summary judgment under the DTPA only. In our analysis, we will first review the issue

of liability under DTPA and then the issue of damages, as found by the trial court, under

the DTPA cause of action.
10
Liability under DTPA

Upshaw’s motion for summary judgment first alleges that Webb violated the

DTPA laundry list in a number of particulars. See § 17.46(b). First, Upshaw alleged

that Webb made misrepresentations pursuant to section 17.46(b)(5). See § 17.46(b)(5).

Next, Upshaw alleges that Webb represented that the Mustang was of a particular

standard, quality, or grade and that it was not. See § 17.46(b)(7). Finally, Upshaw

alleges that Webb failed to disclose information concerning the Mustang which was

known at the time of the transaction and that failure to disclose information was

intended to induce Upshaw into the transaction and he would not have entered into the

transaction had he known the information. See § 17.46(b)(24).

As to misrepresentations under section 17.46(b)(5), Upshaw alleges that Webb

represented that the Mustang had characteristics, uses, or benefits it did not have. The

first misrepresentation allegedly made by Webb was that the Mustang had not been

involved in an accident. According to the attachment to Upshaw’s motion, the CARFAX

report showed that the Mustang had been in a collision. Under this general heading,

Upshaw’s motion for summary judgment alleges that the car was represented having

under 100,000 miles on it with an operational radio and was in great driving shape. The

CARFAX report and Upshaw’s affidavit revealed that the vehicle had in excess of

100,000 miles and that Upshaw did not even get out of Leander before mechanical

issues arose. In Upshaw’s affidavit, he related that, while attempting to drive the car to

College Station, the speedometer, odometer, air conditioner, and heater were all

inoperable. After getting the car to College Station, Upshaw replaced electrical fuses in

the car and the electrical issues seemed to be fixed. However, the check engine light

11
immediately came on. Subsequently, the Mustang quit running and the car was

eventually towed. Upshaw’s motion for summary judgment alleges that he

subsequently had the vehicle examined by a mechanic and there were significant

mechanical problems with the car. However, the summary judgment evidence does not

provide any evidence that supports this allegation.

In addition to the summary judgment evidence recited above, Upshaw included

the requests for admissions that had been served upon Webb. The record reflects that

Webb never answered the requests for admissions and, therefore, the requests are

deemed admitted. See TEX. R. CIV P. 198.2(C); Marino v. King, 355 S.W.3d 629, 630

(Tex. 2011) (per curiam). The admissions made several specific inquiries of Webb.

Webb admitted that he sold the Mustang to Upshaw, thereby proving that Upshaw was

a consumer. Further, Webb admitted he did not allow Upshaw to drive the vehicle when

Upshaw first looked at it, providing circumstantial proof regarding what Webb knew of

the condition of the Mustang. Webb additionally admitted that he represented that the

Mustang was in good working condition. Finally, Webb admitted that he made

representations regarding the quality of the Mustang with knowledge as to the

Mustang’s actual condition.

Webb contends that the evidence is legally insufficient to prove the allegations of

violation of section 17.46(b)(5) for a number of different reasons. We will address these

in turn. First, Webb contends that Upshaw’s affidavit was conclusory. As to the

question of liability, the conclusory statement referred to is, “The only way that a dealer

could get the radio to work was to also show that the car[’]s [c]heck [e]ngine light was

on which would discourage any buyer from purchasing the car.” While it is true that

12
affidavits containing unsubstantiated factual or legal conclusions are not competent

summary judgment proof, the question in this case remains whether there is any factual

basis for Upshaw’s conclusion. See Mirales v. Morman, No. 03-09-00451-CV, 2010

Tex. App. LEXIS 6347, at *23 (Tex. App.—Austin Aug. 6, 2010, no pet.) (mem. op.)

(citing Rizkallah v. Conner, 952 S.W.2d 580, 586–88 (Tex. App.—Houston [1st Dist.]

1997, no writ)). Earlier in his affidavit, Upshaw stated that “when he first saw the

Mustang it was situated in the center of several other cars and completely blocked in.”

He further stated, “I was not allowed to test drive the vehicle because [Webb] did not

want to move the other cars unless I decided to purchase the vehicle.” This recitation of

facts provides support for the conclusion that the car was parked in this manner so as

not to be easily accessible for starting or driving. The affidavit previously recited the

factual pattern of changing the fuses out and the radio and other electronics started

working and the check engine light immediately came on. Thus, we have a factual

conclusion that is supported by other evidence in the summary judgment record. See

Rizkallah, 952 S.W.2d at 587-88. As such, it is a proper conclusion. See id. When

added with the admission that Upshaw was not allowed to drive the Mustang on the day

Upshaw first visited Webb’s business, the elements of the DTPA action under section

17.46(b)(5) have been established as a matter of law.

Webb also posits that nothing in the summary judgment proof establishes that

Webb made any false statements to Upshaw. Again, we turn to the summary judgment

proof. First, Webb’s admission establishes that Webb represented that the Mustang

was in good working condition. Next, the admission establishes that Webb was aware

of the true condition of the Mustang when he sold it. Finally, the affidavit of Upshaw

13
establishes that he was told that the Mustang had not been involved in any wrecks and

had no problems other than minor cosmetic dings. This affidavit then went through the

litany of matters that arose after the Mustang was taken from the car lot, specifically,

inoperable radio, air conditioner, and heater. The affidavit then recites that the

changing of the fuses resulted in the immediate lighting of the check engine light. None

of these defects were told to Upshaw and, in fact, a general assurance that the Mustang

was in good working condition was represented to Upshaw. Webb assured Upshaw,

not only was the car in working condition, but also the Mustang was in great driving

condition. That false and inaccurate representations were made to Upshaw is

conclusively established by the summary judgment proof. Having decided that the trial

court did not err in granting the summary judgment in favor of Upshaw on the basis of

his section 17.46(b)(5) cause of action, we need not address the remaining two laundry

list causes of action. See TEX. R. APP. P. 47.1.

Finally, Webb posits that nothing in the summary judgment proof establishes that

Webb knew he was making false statements. Such a position has been rejected by the

Texas Supreme Court in the case of Miller v. Keyser, 90 S.W.3d 712, 716 (Tex. 2002).

There, the appellant argued that he should not be held liable because he did not, in fact,

know that his representations were false. Id. The court held that a consumer is

required to show that the misrepresentation was false and that the false

misrepresentation was the producing cause of the consumer’s damages. Id. The court

then stated that “[a] consumer is not required to prove intent to make a

misrepresentation under the DTPA.” Id. We, therefore, overrule appellant’s contention

that the summary judgment pursuant to Upshaw’s claims under section 17.46(b) was

14
improperly granted. We will address Webb’s issue regarding the producing cause of

Upshaw’s damages in the damages portion of this opinion.

Turning to Upshaw’s section 17.50(a)(3) unconscionability cause of action, we

find that, in order to succeed, Upshaw had the burden of establishing that Webb took

advantage of his lack of knowledge and that the resulting unfairness was glaringly

noticeable, flagrant, complete, and unmitigated. See § 17.50(a)(3); Johnson v. MHSB

Enters., L.L.C., No. 03-04-00153-CV, 2004 Tex. App. LEXIS 8900, at *18–19 (Tex.

App.—Austin Oct. 7, 2004, pet. denied) (mem. op.) (citing Ins. Co. of N. Am. v. Morris,

981 S.W.2d 667, 677 (Tex. 1998)). In reviewing the facts to ascertain whether Upshaw

has met his burden proof on the issue of unconscionability, we are reminded that we

must review all of the facts in the transaction. See Johnson, 2004 Tex. App. LEXIS

8900, at *19.

A review of Webb’s brief does not reflect an issue or allegation that seems to be

directly aimed at Upshaw’s unconscionability cause of action. Rather, Webb seems to

attack the trial court’s finding regarding unconscionability via an argument about lack of

knowledge or intent to knowingly give false information. If this is the intent of the brief, it

fails because, as stated above, a consumer is not required to prove intent to make a

representation under the DTPA. See Miller, 90 S.W.3d at 716. Turning specifically to

an allegation of a violation of section 17.50(a)(3), the Texas Supreme Court has held

that, in applying the concepts of the DTPA to an action under this section, we apply the

objective standard referred to above and that scienter is irrelevant. Bradford v. Vento,

48 S.W.3d 749, 760 (Tex. 2001). Accordingly, to the extent Webb’s brief can be viewed

as attacking the unconscionability cause of action, the same is overruled and the

15
summary judgment is affirmed. Having sustained the trial court’s grant of summary

judgment on the issue of liability, we will next turn to the issue of damages.4

Damages

We begin our review of this subject by setting forth what the trial court found in its

final judgment. The trial court ordered that Webb pay to Upshaw the sum of $10,950 as

actual damages. There are no calculations given by the trial court. The summary

judgment proof establishes that Upshaw’s affidavit stated that the Mustang in the

condition represented would have a value of $4,987. He further stated that he did not

have the vehicle. According to the affidavit, this is so because the Mustang, while

inoperable, was towed and he was unable to redeem the car. Thus, according to the

summary judgment proof, the vehicle was sold for storage charges.

In establishing economic damages for violations of the DTPA, Upshaw could

recover all actual damages that are recoverable at common law. See Arthur Andersen

& Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997). Under common law,

direct damages for misrepresentation are measured as either out-of-pocket damages,

meaning the difference between the value the buyer paid and the value of what he

received, or benefit-of-the-bargain damages, measured as the difference between the

value represented and the value received. See id. at 817.

4
Before we do so, however, we pause to note that our conclusion regarding the issues
concerning liability under the DTPA also implicates the matter of the trial court’s award of attorney’s fees.
Under the DTPA, an award of attorney’s fees is mandatory to a prevailing consumer. See TEX. BUS. &
COM. CODE ANN. § 17.50(d) (West 2011); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 751 (Tex. App.—
Houston [14th Dist.] 2005, no pet.).

Inasmuch as we have concluded that Upshaw is a prevailing consumer under the DTPA, we also
conclude that the trial court properly awarded him attorney’s fees. Webb has not challenged the
reasonableness of the attorney’s fees on appeal, and we need not address such.

16
 We know that Upshaw paid $3,000 for the Mustang, with a balance of $200

owing to Webb. The $3,000 is the value he was awarded for his trade-in. Further,

Upshaw’s affidavit places the value of the Mustang as represented at $4,987. This is

his testimony as the property owner as to value. See Reid Road Mun. Util. Dist. No. 2

v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 849 (Tex. 2011) (holding that a

property owner familiar with his property can testify about the actual value of the

property as opposed to any intrinsic value). The problem arises when we try to take the

figures properly before the trial court and establish how the trial court arrived at its

damages figure. Even if we assume, arguendo, that Upshaw’s economic damage was

a total loss of the vehicle, $4,987, we still have not arrived at the damage award of

$10,950. We have no testimony about the value of the Mustang in the condition it was

actually in. We are asked to speculate as to that value. This we cannot do, for the

burden in a summary judgment is upon the movant to prove all elements as a matter of

law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at

848. Thus, Upshaw’s summary judgment proof fails on the basic question of economic

damages regarding the value of the Mustang in the condition it was sold. See Arthur

Andersen & Co., 945 S.W.2d at 817.

However, even were we to accept the total loss value of $4,987 for the Mustang,

we still are not able to sustain the damages as found by the trial court. The only other

testimony regarding damages was that contained in Upshaw’s affidavit regarding cost of

leasing a replacement vehicle: “The cost of me leasing a vehicle in the meantime would

have been at least $20/day.” Upshaw then averred that his damages for loss of use

through January 15, 2014, is $14,320, representing 716 days. The problem with this

17
evidence is that it is pure speculation put before the trial court without any foundation

about the actual cost of renting or leasing a vehicle or how we arrived at 716 days. All

we have is Upshaw’s factual conclusion without any other evidence in the record to

support that conclusion. See Rizkallah, 952 S.W.2d at 587. This is simply a conclusory

statement which is no evidence at all for purposes of the summary judgment. See TEX.

R. CIV. P. 166a(c); Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex. App.—Dallas 2008

no pet.) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per

curiam)).

The same is true of the last affidavit testimony of Upshaw regarding economic

damages. In that statement, Upshaw averred that he was forced to leave school, did

not have a vehicle, and had to leave behind his property, a loss of approximately

$1,500. Again, we have no facts upon which to base this approximation by Upshaw.

See Rizkallah, 952 S.W.2d at 587. And, again, this is nothing more than conclusory

testimony and will not support the summary judgment. See TEX. R. CIV. P. 166a(c);

Eberstein, 260 S.W.3d at 630.

Because we find that the evidence in support of the trial court’s awarding of

damages is insufficient to support the damages awarded, we will reverse the trial court’s

damage award and sustain Webb’s challenge to that portion of the judgment entered.

Also, the trial court’s order trebling damages must also fail because we have found the

evidence on economic damages insufficient.

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 Conclusion

We affirm the trial court’s decision on liability under the DTPA cause of action but

reverse the trial court’s judgment in regards to the economic damages suffered by

Upshaw and remand the matter to the trial court for a trial on the economic damages

suffered by Upshaw.

Mackey K. Hancock
Justice

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