Motion for Rehearing Denied; Affirmed and Substitute Memorandum
Opinion on Remand filed January 7, 2021.
In The
Fourteenth Court of Appeals
NO. 14-14-00345-CV
ALBERT LUJAN D/B/A TEXAS WHOLESALE FLOWER CO., Appellant
V.
NAVISTAR, INC., NAVISTAR INTERNATIONAL CORPORATION,
NAVISTAR INTERNATIONAL TRANSPORTATION CORP.,
INTERNATIONAL TRUCK AND ENGINE CORPORATION AND
SANTEX TRUCK CENTERS, LTD., Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2009-77458
SUBSTITUTE MEMORANDUM OPINION ON REMAND
We deny appellant Albert Lujan D/B/A Texas Wholesale Flower Co.’s
motion for rehearing. We withdraw our opinion filed August 6, 2020, and
substitute this opinion.
In this case remanded from the Supreme Court of Texas, we must determine
whether any of Lujan’s claims remain unresolved after the trial court’s granting of
several motions for summary judgment. We agree with Lujan that several of his
claims remain unresolved, but he has not shown that the trial court erred by
rendering a summary judgment. Thus, we affirm the trial court’s judgment.
I. Background
The facts of this case are discussed at length in this court’s and the supreme
court’s prior opinions. See Lujan v. Navistar, Inc., 503 S.W.3d 424, 426–31 (Tex.
App.—Houston [14th Dist.] 2016), aff’d in part, rev’d in part, 555 S.W.3d 79, 82–
84 (Tex. 2018). In short, Lujan purchased five commercial trucks from appellees
Navistar, Inc. and Santex Truck Centers, Ltd. in 2005 to use in Lujan’s flower-
delivery business. Lujan initially signed a “buyer’s order” for the trucks and then
signed financing documents when he took delivery of the trucks. The parties
dispute whether Navistar and Santex properly disclaimed express or implied
warranties. But it is undisputed that Navistar and Santex gave Lujan a written
limited warranty (i.e., a “repair or replace” warranty), the trucks broke down, and
Navistar and Santex performed repairs on the trucks.
Lujan did business under the name of Texas Wholesale Flower Co., but on
June 12, 2006, Lujan transferred the trucks and some other assets to a corporation
for which he became the sole shareholder. Lujan sued Navistar and Santex and the
other appellees in his own name. In the live petition—the third amended
petition—Lujan alleged that the appellees “breached the express and implied
warranties of fitness for Plaintiff’s particular purpose, and merchantability.” Lujan
did not mention any written limited warranty provided to him or the fact that
Navistar and Santex had made repairs to the trucks. Lujan also alleged that, as a
result of appellees’ “duress and business coercion,” he suffered damages by
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incurring additional debt to purchase a second set of trucks from appellees in
February 2008.
The corporation attempted to intervene in the suit, but the trial court struck
the attempted intervention. Navistar and Santex filed two motions for summary
judgment.
The first motion was a hybrid traditional motion on Navistar’s affirmative
defense of disclaimer and a no-evidence motion on Lujan’s claims for breaches of
express warranty, implied warranty of merchantability, and implied warranty of
fitness for a particular purpose. Regarding the disclaimer, Navistar and Santex
argued that Lujan’s claims for breaches of express and implied warranties were
barred because Lujan accepted a limited warranty, which disclaimed any other
express or implied warranties. Navistar and Santex argued that, despite evidence
Lujan obtained the limited warranty and disclaimer after delivery of the trucks,
Lujan “acted within the Warranty Agreement’s terms by accepting Defendants’
repair work. This conduct shows a clear indication to be bound by the Warranty
Agreement’s terms.”
The second motion was a traditional motion for partial summary judgment.
Navistar and Santex alleged that Lujan lacked standing to recover any damages
after June 12, 2006, because Lujan transferred the trucks to the corporation.
The trial court granted both motions, stating that its order disposed of all
claims and parties and was final and appealable. This court affirmed the trial
court’s judgment in whole based on Lujan’s lack of standing. The supreme court,
noting in its opinion that Navistar and Santex’s motion for summary judgment on
standing applied only to injuries sustained after the incorporation and transfer of
the trucks on June 12, 2006, reversed in part and remanded to this court “to
consider whether any of Lujan’s claims remain unresolved.” Lujan, 555 S.W.3d at
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92. In its mandate to this court, the supreme court (1) affirmed the portion of this
court’s judgment that affirmed the summary judgment on claims for injuries
occurring after June 12, 2006, (2) reversed this court’s judgment that affirmed the
summary judgment on claims for injuries occurring before June 12, 2006, and (3)
remanded the case to this court for further proceedings consistent with the supreme
court’s opinion.
II. Lujan’s Issues on Remand
The parties filed supplemental briefing on remand, and Lujan raises three
issues. In his first and second issues, Lujan contends that the trial court erred by
granting the summary judgment to Navistar and Santex on Lujan’s express and
implied warranty claims because there is a genuine issue of material fact for each
element of the claims, and because any disclaimers in the initial buyer’s order or
the written limited warranty are inoperative as a matter of law. In particular, Lujan
contends that any disclaimer in the buyer’s order was not conspicuous, and the
subsequent disclaimer and limited warranty are inoperative because they were not
communicated to Lujan before the sale of the trucks. In his third issue, Lujan
contends that the trial court erred by adjudicating his claim of “failure of essential
purpose” because Navistar and Santex did not expressly present the claim in either
motion for summary judgment.1
III. Failure to Challenge All Grounds for Summary Judgment
Navistar and Santex argued in their first motion for summary judgment that
Lujan was bound by the terms of the limited warranty, including the disclaimer of
1
Lujan’s issues and arguments generally mirror his first three issues and arguments
contained in his opening and reply briefs on original submission. In his third issue on original
submission, however, Lujan also complained about Navistar and Santex’s failure to move for
summary judgment on Lujan’s claim for duress or economic coercion. Lujan raises this
argument in his supplemental reply brief.
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express and implied warranties, because Lujan accepted benefits under the limited
warranty.2 Navistar and Santex note in their supplemental brief that they raised
this issue on original submission, and Lujan does not address the argument in his
supplemental brief. Nor does Lujan address the argument in his opening or reply
brief on original submission, or his supplemental reply brief.
An appellant must challenge all possible grounds upon which a summary
judgment could have been granted, whether properly or improperly. See, e.g.,
FinServ Cas. Corp. v. Transamerica Life Ins., 523 S.W.3d 129, 139 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). A failure to do so can be fatal. Id. “If the
appellant fails to challenge all grounds on which the judgment may have been
granted, the appellate court must uphold the summary judgment.” Heritage Gulf
Coast Props. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 653 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); see also Williamson v. State Farm Lloyds, 76
S.W.3d 64, 67 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Navistar and Santex’s argument that Lujan was bound by the limited
warranty and disclaimer—because Lujan accepted benefits of the limited
warranty—was a “ground” for summary judgment on Lujan’s express and implied
warranty claims. See Garza v. CTX Mortg. Co., 285 S.W.3d 919, 923 (Tex.
App.—Dallas 2009, no pet.) (“The term ‘grounds’ means the reasons that entitle
the movant to summary judgment, in other words, ‘why’ the movant should be
granted summary judgment.”). Whether the trial court granted summary judgment
on this ground properly or improperly, Lujan’s failure to challenge this ground is
2
See Emmons v. Durable Mobile Homes, Inc., 521 S.W.2d 153, 154 (Tex. App.—Dallas
1974, writ ref’d n.r.e.) (plaintiff could not complain about conspicuousness or unconscionability
of limited warranty in part because he “called upon [the defendant] several times for repairs
under the warranty and accepted such repairs”)
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fatal to the appeal. See FinServ, 523 S.W.3d at 139; Heritage Gulf Cost Props.,
416 S.W.3d at 653; Williamson, 76 S.W.3d at 67.
Lujan’s first and second issues are overruled.
IV. No Claim Based on Failure of Limited Warranty’s Essential Purpose
Lujan contends that the summary judgment must be reversed because
Navistar and Santex did not address in the motion Lujan’s claim based on failure
of the limited warranty’s essential purpose. See G & H Towing Co. v. Magee, 347
S.W.3d 293, 297 (Tex. 2011) (“Granting a summary judgment on a claim not
addressed in the summary judgment motion therefore is, as a general rule,
reversible error.”). Navistar and Santex contend that Lujan did not plead this
claim. Lujan responds that he pleaded the claim, but even if he didn’t, it was tried
by consent. Navistar and Santex contend, among other things, that Lujan waived
his trial-by-consent argument by not citing any authority in his brief.
A. Claim Not Pleaded
A defendant need not show that the plaintiff cannot succeed on any theory
conceivable in order to obtain summary judgment; a defendant is only required to
meet the plaintiff’s case as pleaded. Via Net v. TIG Ins., 211 S.W.3d 310, 313
(Tex. 2006). In other words, a defendant is not required to guess what unpleaded
claims might apply and negate them. Id.
Pleadings must give fair notice of the nature and basic issues so the opposing
party can prepare a defense. Bos v. Smith, 556 S.W.3d 293, 305–06 (Tex. 2018).
Although we liberally construe pleadings in the pleader’s favor, a liberal
construction does not require a court to read into a petition what is plainly not
there. Id. at 306; see also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323,
336 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“[W]e cannot use a liberal
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construction of the petition as a license to read into the petition a claim that it does
not contain.”).
When circumstances cause a limited warranty to fail of its essential purpose,
a buyer may resort to remedies authorized by the Texas version of the Uniform
Commercial Code. See Tex. Bus. & Com. Code § 2.719(b). A limited warranty
fails of its essential purpose when the warrantor does not correct defects within a
reasonable time. Dickenson, 720 S.W.2d at 854; see also Akrwright-Boston Mfrs.
Mut. Ins. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1179 (5th Cir. 1988)
(“Courts have frequently employed § 2.719(b) to strike ‘repair or replacement’
remedy limitations when a seller is unable or unwilling to repair or replace.”).
Lujan does not dispute that to recover for breach of warranty based on the
failure of a limited warranty’s essential purpose, he should have pleaded it. See
Great Am. Prods. v. Permabond Int’l, 94 S.W.3d 675, 684 (Tex. App.—Austin
2002, pet. denied) (issue of failure of limited warranty’s essential purpose waived
when party failed to plead and submit jury question on issue); Mercedes-Benz of N.
Am., Inc. v. Dickenson, 720 S.W.2d 844, 853 (Tex. App.—Fort Worth 1986, no
writ) (“The failure of a limiting clause’s essential purpose is a matter properly pled
and submitted to the jury when contested.”); Henderson v. Ford Motor Co., 547
S.W.2d 663, 669 (Tex. App.—Amarillo 1977, no writ) (“[T]here is no pleading by
the plaintiff that she was entitled to recover because the warranty failed to its
essential purpose, and, therefore, no jury issue was raised or could be submitted.”).
Lujan acknowledges that he “did not use the exact words ‘failure of essential
purpose’” in his live petition, but he contends that the following facts alleged in the
petition are sufficient:
• “A reliable mode of transportation was essential to Plaintiff’s
business.”
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• “[A]fter Plaintiff experienced repeated mechanical problems,
Plaintiff learned that engine [sic] of the CF600 had
manufacturing troubles, resulting in an increased risk of
breakdown while in service.”
• “The trucks continually broke down while in service.”
• His business’s products that were on the trucks were rendered
“unsaleable” and “undeliverable because of breakdowns.”
Lujan analogizes his case to Dickenson, in which the court of appeals held
that the plaintiff had adequately pleaded the issue, in the absence of special
exceptions, because the plaintiff alleged that he had to return a car for repairs at
least seven times, and the dealer was unable to repair various conditions. 720
S.W.2d at 854. Lujan pleaded no such facts in his petition. He did not allege that
Navistar and Santex were unable or unwilling to correct known defects within a
reasonable time. He did not mention that he had requested any repairs. He did not
even mention the existence of the limited warranty. Under these circumstances, a
claim based on failure of the limited warranty’s essential purpose is simply “not
there.” Cf. Bos, 556 S.W.3d at 306 (upholding reversal of the judgment for the
plaintiff on a defamation claim because the judgment was based on a factual theory
that did not conform to the factual theory pleaded in the petition).
B. Briefing Waiver Regarding Trial by Consent
On original submission, Navistar and Santex argued that Lujan waived his
trial-by-consent argument because he did not cite to any authority in support of the
argument. See, e.g., Gunn v. McCoy, 554 S.W.3d 645, 677 (Tex. 2018) (“Every
issue presented by a party must be supported by argument and authorities in the
party’s brief on the merits, or it is waived.”); Rendleman v. Clarke, 909 S.W.2d 56,
59 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d) (error waived when the
appellant had ample notice of briefing defects and an opportunity to rebrief); see
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also Tex. R. App. P. 38.1(i). In Lujan’s supplemental brief on remand, he repeats
the same argument without citation to any authority. Thus, he had notice of the
briefing defect and an opportunity to rebrief. Under these circumstances, Lujan
has waived any argument that a claim based on failure of the limited warranty’s
essential purpose was tried by consent.3
Lujan’s third issue is overruled.
V. Economic Duress
As noted above, see supra note 1, Lujan asserted in his brief on original
submission that the trial court erred by granting summary judgment on his claim
for economic duress because Navistar and Santex did not expressly present the
claim in their motion for summary judgment. Although Lujan does not refer to this
claim in the issue statement of his supplemental brief on remand, he refers to it in
the argument section and his supplemental reply brief. Assuming without deciding
that he has not abandoned the issue, we cannot revisit the issue consistent with the
supreme court’s mandate.
On remand from the Supreme Court of Texas, this court has no authority to
take any action that is inconsistent with, or beyond the scope of, that which is
necessary to give full effect to the supreme court’s mandate. See Phillips v.
3
Moreover, although at least one court has held that a plaintiff’s claim asserted for the
first time in response to a motion for summary judgment was tried by consent because the
movant did not object, see Roberts v. Wells Fargo Bank, N.A., 406 S.W.3d 702, 707 (Tex.
App.—El Paso 2013, no pet.), the procedural posture of this case does not support trial by
consent. Lujan did not mention a claim based on failure of the limited warranty’s essential
purpose in Lujan’s response to the motion, nor did Lujan raise the issue at the hearing on the
motion. After the hearing, Lujan filed a “surreply” to argue, among other things, that Navistar
and Santex’s affirmative defense of disclaimer failed because of the failure of the limited
warranty’s essential purpose. In the trial court, Lujan never asserted that the failure of the
limited warranty was a claim that needed to be addressed in Navistar and Santex’s motion for
summary judgment, unlike his contention on appeal that the trial court erred by adjudicating the
claim “because Appellees did not expressly present the claims to the Trial Court.”
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Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). The supreme court’s mandate to this
court ordered, “The portion of the court of appeals’ judgment that affirms the
summary judgment on claims for injuries occurring after June 12, 2006 is
affirmed.” Lujan alleges that the events giving rise to his economic duress claim
occurred in February 2008. Thus, the claim was for injuries occurring after June
12, 2006. The supreme court resolved this issue, so we cannot revisit it consistent
with the supreme court’s mandate.
VI. Motion for Rehearing
In his motion for rehearing, Lujan contends among other things that this
court failed to review his assertion that he “reacquired the cause of action” for
injuries occurring after June 12, 2006. Lujan made this argument for the first time
in his reply brief on remand. Lujan did not raise this argument in response to
Navistar and Santex’s motion for summary judgment, nor did Lujan raise this
argument in any of his briefing on original submission or in his supplemental brief
on remand. Accordingly, we cannot reverse the trial court’s judgment on this
basis. See, e.g., Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (per curiam)
(court of appeals errs by reversing summary judgment on a ground not raised in
response to the motion); Metro. Transit Auth. of Harris Cty. v. Douglas, 544
S.W.3d 486, 495 n.13 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
(“Arguments raised for the first time in a reply brief are waived.”). And as
discussed above, this court may not reevaluate claims for injuries occurring after
June 12, 2006, because it would be inconsistent with the Supreme Court of Texas’s
mandate that affirmed this court’s prior judgment regarding those claims. See
Phillips, 407 S.W.3d at 234.
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VII. Conclusion
Each of Lujan’s issues is overruled. The trial court’s judgment is affirmed.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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