Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00882-CV
VILLEJO ENTERPRISES, LLC D/B/A Good Guys Auto Group (“Good Guys”),
Appellant
v.
C.R. COX, INC. D/B/A AAMCO and Carl Cox,
Appellees
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2019CV01289
Honorable David J. Rodriguez, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: January 20, 2021
AFFIRMED IN PART, REVERSED AND REMANDED IN PART
This case arises from the repair of a vehicle by C.R. Cox, Inc. d/b/a/ AAMCO (AAMCO).
Villejo Enterprises, LLC d/b/a Good Guys Auto Group (Good Guys) had an interest in the vehicle
and sued AAMCO and one of its owners, Carl Cox, for fraud, conversion, violations of the Texas
Deceptive Trade Practices Act, and violations of the Texas Property Code. AAMCO and Cox
filed a no-evidence and traditional motion for summary judgment, which the trial court granted.
On appeal, Good Guys contends the trial court erred in granting AAMCO and Cox’s evidentiary
objections and in proceeding with the summary judgment hearing. Good Guys also contends
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AAMCO and Cox were not entitled to summary judgment. We affirm in part, and reverse and
remand in part.
BACKGROUND
Maria Liendo entered into a contract to purchase a 2012 Ford Fiesta and subsequently
failed to make payments on the vehicle, leading to its repossession by the lienholder, Skopos
Financial LLC. Skopos then sold the vehicle to Cadena Auto, Inc., which then sold the vehicle to
Good Guys. Margie Soria entered into a contract with Good Guys to purchase the vehicle, which
required her to pay a down payment, take possession of the vehicle, and begin monthly payments
on the balance.
Soria experienced mechanical problems with her vehicle and took it to AAMCO. Cox
subsequently informed her that the transmission needed to be repaired and quoted the repair at
$750. At some point thereafter, Cox informed Soria that the repairs would instead cost $4,685.96.
The record is unclear as to what happened after this, but it contains a quotation sheet from AAMCO
for $4,685.96 dated on November 27, 2018. The document has Soria’s signature and the following
language:
I hereby authorize this work you and your employees may operate above vehicle
for the purpose of testing, inspection, or delivery at my risk. An express mechanic’s
lien is acknowledged on above vehicle, to secure the amount of repairs thereto.
AAMCO completed the repairs on December 8, 2018. On December 13, 2018, AAMCO
sent its notice of intention to file mechanic’s lien to Soria, Liendo, and Skopos. On December 18,
AAMCO filed a copy of this notice with the Bexar County Tax Assessor’s Office.
AAMCO never received the balance for the repairs, and Soria stopped making her monthly
payments to Good Guys for the vehicle. After failed attempts to contact Soria, Good Guys placed
the vehicle for repossession. Zack Villejo, an authorized representative for Good Guys, went to
AAMCO, where the vehicle was located, to inquire about the vehicle. Cox told Villejo that he and
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AAMCO had a mechanic’s lien on the vehicle for the transmission repairs performed and provided
Villejo with a document indicating the charges for the repairs completed. Good Guys demanded
the release of the vehicle, but AAMCO and Cox refused. On January 22, 2019, AAMCO sold the
vehicle to Cox for $4,685.96, the amount owed for the repairs to the vehicle.
On January 30, 2019, Good Guys sued AAMCO and Cox for conversion, violations of
Chapter 70 of the Texas Property Code, fraud, and violations of the DTPA. On May 24, 2019,
AAMCO and Cox filed an affirmative and no-evidence motion for summary judgment. On June
7, Good Guys filed a response to the motion for summary judgment. AAMCO and Cox
subsequently filed objections to Good Guys’ summary judgment evidence. On July 19, 2019, the
trial court sustained AAMCO and Cox’s evidentiary objections and granted summary judgment in
favor of AAMCO and Cox as to all of Good Guys’ claims. AAMCO and Cox filed a motion to
sever Good Guys’ claims, requested a final judgment, and non-suited their counterclaims against
Good Guys. The trial court then entered a final judgment in favor of AAMCO and Cox. Good
Guys appealed.
EVIDENTIARY RULINGS
On appeal, Good Guys contests the trial court’s evidentiary ruling. First, Good Guys
argues the trial court erred in ruling on AAMCO and Cox’s summary judgment objections because
their written objections were filed the night before the hearing when discovery was still ongoing
in the case. Second, Good Guys argues the trial court erred by excluding its summary judgment
evidence relating to their expert, Jamie Boothe, because she was disclosed as an expert in their
requests for disclosure. Third, Good Guys argues the trial court erred by excluding its deposition
excerpts because depositions need not be authenticated to be competent summary judgment
evidence. We hold that Good Guys waived these complaints for appellate review.
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A. Standard of Review
A trial court’s decision to admit or exclude summary judgment evidence is reviewed for
an abuse of discretion. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998). A trial court abuses its discretion when it rules “without regard for any guiding rules or
principles.” Id. (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)). We
“must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling.” Id.
Additionally, “we will not reverse a trial court for an erroneous evidentiary ruling unless the error
probably caused the rendition of an improper judgment.” Id.; see TEX. R. APP. P. 44.1(a)(1).
B. Discussion
First, Good Guys argues the trial court erred when it ruled on AAMCO and Cox’s summary
judgment objections because Good Guys’ written objections were filed the night before the hearing
when discovery was still ongoing in the case.
We hold that Good Guys waived this complaint by not timely asserting it in the trial court.
See TEX. R. APP. P. 33.1 (requiring a complaint to be made to trial court by timely request to
preserve the complaint for appellate review). “When a summary judgment movant objects to
summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to
request relief under rule 166a(f), including a continuance or the opportunity to cure any formal
defects in the nonmovant’s summary judgment evidence.” Coleman v. Woolf, 129 S.W.3d 744,
750 (Tex. App.—Fort Worth 2004, no pet.). “Generally, a motion for continuance is the proper
procedure to obtain this ‘opportunity.’” Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166
S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied) (citing Webster v. Allstate Ins. Co.,
833 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Here, Good Guys failed to
request a continuance or opportunity to cure before the trial court’s judgment. Instead, it first
raised the issue in its appellate brief. Therefore, Good Guys waived this issue for appeal. See
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TEX. R. APP. P. 33.1; DeLarosa v. Stokes, No. 03-12-00125-CV, 2012 WL 3600874, at *6 (Tex.
App.—Austin Aug. 17, 2012, no pet.) (mem. op.) (holding that a nonmovant failed to preserve his
complaint about the timing of an objection because he had an opportunity to amend or seek to
amend the defect when the movant filed its form objection to the nonmovant’s affidavit); see also
Herrera v. R.R.&F., No. 03-01-00501-CV, 2002 WL 220490, at *3 (Tex. App.—Austin Feb. 14,
2002, no pet.) (mem. op.) (“Nothing in the record shows that, prior to the district court’s judgment,
Herrera responded to R.R. & F.’s motion to strike, sought an opportunity to amend, or requested
a continuance . . . [t]herefore, Herrera waives this issue for appeal.”).
Second, Good Guys argues the trial court erred by excluding evidence relating to its expert,
Jamie Boothe, because she was disclosed as an expert in its requests for disclosure. Again, we
hold that Good Guys has waived this issue for appeal because Good Guys failed to show that it
raised the complaint in the trial court. See Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—
Dallas 2006, no pet.) (“When a party fails to object to the trial court’s ruling that sustains an
objection to his summary judgment evidence, he has not preserved the right to complain on appeal
about the trial court’s ruling.” (citing Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878
(Tex. App.—Dallas 1990, no writ))). Here, Good Guys did not file written responses to the
objections or provide a reporter’s record of the summary judgment hearing. Thus, the record does
not show that Good Guys raised its complaint in the trial court. See Brown v. CB & I, Inc., No.
09-12-00521-CV, 2014 WL 172413, at *3 (Tex. App.—Beaumont Jan. 16, 2014, no pet.) (stating
that the appellant bears the burden to bring forth a record that demonstrates the trial court abused
its discretion when it sustained the appellees’ objections to the summary judgment evidence).
Furthermore, Good Guys has not challenged all possible grounds for the trial court’s ruling
to exclude evidence related to the expert. See Hinojosa v. Koen, No. 04-18-00907-CV, 2019 WL
5773672, at *2 (Tex. App.—San Antonio Nov. 6, 2019, pet. denied) (mem. op.) (“[W]hen an
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appellee urges several objections to a particular piece of evidence and, on appeal, the appellant
complains of its exclusion on only one of those bases, the appellant has waived that issue for appeal
because he has not challenged all possible grounds for the trial court's ruling . . . .” (quoting Cantu
v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.))). Here, AAMCO and Cox
set forth several objections to the expert’s specific conclusions; however, Good Guys addresses
only one objection regarding whether the expert had been disclosed. Therefore, we hold that Good
Guys waived its complaint about the trial court’s ruling to exclude expert testimony. See id.
Third, Good Guys argues the trial court erred by excluding Soria’s deposition excerpts
because depositions need not be authenticated to be competent summary judgment evidence.
AAMCO and Cox concede that this objection was improper. However, regardless of the merits of
this objection, the complaint was also waived because the record does not show that Good Guys
made its complaint to the trial court. See Cantu, 195 S.W.3d at 871 (“Even if the objections appear
meritorious on appeal, they are not preserved for appellate review if the record does not show the
complaint was made to the trial court.” (citing Cruikshank v. Consumer Direct Mortg., Inc., 138
S.W.3d 497, 500 (Tex. App.—Houston [14th Dist.] 2004, pet. denied))).
Furthermore, Good Guys has not challenged all possible grounds for the trial court’s ruling
to exclude this evidence. See Hinojosa, 2019 WL 5773672 at *2. AAMCO and Cox set forth two
objections to Soria’s deposition testimony; however, Good Guys addresses only one objection
regarding the excerpt not being authenticated. Therefore, we hold that Good Guys waived its
complaint about the trial court’s ruling to exclude Soria’s deposition testimony. See id. Good
Guys does not address AAMCO and Cox’s remaining objections to the summary judgment
evidence; therefore, it has waived its complaints regarding the exclusion of evidence based on
these objections. See id. In sum, we hold the trial court did not err by excluding evidence, and we
review the trial court’s summary judgment decision without consideration of the excluded
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evidence. See Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 918 (Tex. App.—El Paso
2014, pet. denied).
ADEQUATE TIME FOR DISCOVERY
Good Guys argues the trial court should not have granted AAMCO and Cox’s summary
judgment because it was not afforded adequate time for discovery. AAMCO and Cox respond that
Good Guys cannot make this argument on appeal because it failed to move for a continuance of
the summary judgment hearing. We agree with AAMCO and Cox and hold that Good Guys failed
to properly preserve its complaint for appeal.
Rule 166a(i) provides a party may move for a no-evidence summary judgment after an
adequate time for discovery has passed. See TEX. R. CIV. P. 166a(i). In determining whether an
adequate time for discovery has passed under Rule 166a(i), an appellate court examines (1) the
nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence motion,
(3) the length of time the case was active, (4) the amount of time the no-evidence motion had been
on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of
discovery already taken place, and (7) whether the discovery deadlines were specific or vague.
Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.—San Antonio 2001, pet. denied).
The rule does not require that discovery be completed, only that there was adequate time for
discovery. Rankin v. Union Pac. R.R. Co., 319 S.W.3d 58, 67 (Tex. App.—San Antonio 2010, no
pet.). Finally, when a party contends it has not had adequate opportunity for discovery before a
summary judgment hearing, it must file either an affidavit explaining the need for further discovery
or a verified motion for continuance. Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 524 (Tex.
App.—San Antonio 2003, no pet.). Our review of a trial court’s determination that there has been
adequate time for discovery is governed by an abuse of discretion standard. Id. at 523.
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Nothing in the record indicates that Good Guys filed, in the trial court, an affidavit
explaining its need for further discovery or filed a motion to continue the summary judgment
hearing. See id. at 524. The only mention in the record of Good Guys contending it did not have
adequate time for discovery is in its response to AAMCO and Cox’s traditional and no-evidence
motion for summary judgment. However, to preserve such a complaint, Good Guys was required
to file either an affidavit or a verified motion for continuance and to identify the evidence sought,
demonstrate its materiality, and show Good Guys’ diligence in obtaining it. Wilson v. Dorbandt,
No. 03-14-00553-CV, 2016 WL 768143, at *5 (Tex. App.—Austin Feb. 24, 2016, pet. denied);
see Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (holding that the court of
appeals erred in reversing a no-evidence summary judgment because the party seeking reversal
never filed an affidavit explaining the need for further discovery or a verified motion for
continuance).
We, therefore, overrule Good Guys’ contention that the summary judgment must be
reversed because it was granted without affording it adequate time for discovery.
MERITS OF THE SUMMARY JUDGMENT MOTIONS
A. Standard of Review
We review a trial court’s grant of summary judgment de novo. Lightning Oil Co. v.
Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). To prevail on a motion for
summary judgment, the movant has the burden of showing that there is no genuine issue of material
fact and that judgment should be granted as a matter of law. Id.
When reviewing a no-evidence summary judgment, we examine the entire record in the
light most favorable to the nonmovant, indulging in every reasonable inference and resolving any
doubts against the movant. Id. If the nonmovant brings forward more than a scintilla of probative
evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not
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proper. Id.; see TEX. R. CIV. P. 166a(i). “A genuine issue of material fact exists if more than a
scintilla of evidence establishing the existence of the challenged element is produced.” Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) (citing Morgan v. Anthony, 27 S.W.3d
928, 929 (Tex. 2000)). “[M]ore than a scintilla of evidence exists if the evidence ‘rises to a level
that would enable reasonable and fair-minded people to differ in their conclusions.’” Id. at 601
(quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
If a party moves for both traditional and no-evidence summary judgment, we first review
the trial court’s judgment under the standards for a no-evidence summary judgment. Id. at 600. If
the nonmovant failed to produce more than a scintilla of evidence under that burden, then there is
no need to analyze whether the movant’s summary judgment evidence proof satisfied the
traditional summary judgment standard. Id.
B. Discussion
1. Fraud
Good Guys argues the trial court erred in granting summary judgment on its fraud claims
because the evidence demonstrates that AAMCO and Cox each made intentional
misrepresentations upon which Good Guys relied on.
The elements of common law fraud are: (1) that a material representation was made, (2)
that it was false, (3) that the speaker knew it was false when made or that the speaker made it
recklessly without any knowledge of the truth and as a positive assertion, (4) that he made it with
the intention that it be acted upon by the other party, (5) that the party acted in reliance upon it,
and (6) that he thereby suffered injury. Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983).
Good Guys asserts that AAMCO and Cox committed fraud because they forged Soria’s
signature in order to authorize the repairs on the vehicle in dispute. A person who repairs a vehicle
does not have a valid lien under Chapter 70 and does not have the right to sell the vehicle under
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that statute if the owner of the vehicle did not authorize the repair services that are the basis for
the purported lien. See Berry v. Covarrubias, No. 01-02-01141-CV, 2004 WL 36001, at *3 (Tex.
App.—Houston [1st Dist.] Jan 8, 2004, no pet.) (mem. op.) (holding that individual who repaired
a vehicle and sold it, purporting to foreclose a Chapter 70 lien for unpaid repair services, had no
right to sell the vehicle under Chapter 70 because the owner never agreed that the individual could
repair the vehicle).
Good Guys relies upon the deposition testimony of Soria who states that the signature
authorizing the repairs was forged and that she never authorized the repairs performed by
AAMCO. However, pursuant to the discussion above, this deposition testimony is excluded from
our review. Cox initially quoted the repairs at $750 and subsequently informed Soria that the
repairs would cost $4,685.96 instead. The record is unclear as to what happened after Cox
informed Soria of the new quote, but it provides an AAMCO quotation sheet with the total
$4,685.96, bearing Soria’s signature authorizing repairs to the vehicle. We conclude that the
undisputed, competent summary judgment evidence establishes that Soria authorized the repairs
and there is no evidence to support Good Guys’ fraud claims. 1
2. Conversion
Good Guys argues the trial court erred in granting summary judgment on its conversion
cause of action because it argues that there is evidence that AAMCO and Cox did not have the
legal right to assert a mechanic’s lien or foreclose on the mechanic’s lien and converted Good
Guys’ property.
1
Good Guys argues that Soria’s oral authorization over the phone was insufficient to authorize repairs because section
70.006(b-1)(4) of the Texas Property Code requires authorization to be in written form. However, section 70.0006(b-
1)(4) is inapposite. It concerns the notice that a holder of a possessory lien on a motor vehicle must give to a lienholder
of record. See TEX. PROP. CODE ANN. § 70.006(b-1)(4). This notice is not determinative of whether Soria authorized
repairs.
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Conversion is the wrongful exercise of dominion and control over another’s property in
denial of or inconsistent with his rights. Bandy v. First State Bank, Overton, Tex., 835 S.W.2d
609, 622 (Tex. 1992). In order to establish conversion, the plaintiff must show that (1) he owned,
had legal possession of, or was entitled to possession of the property; (2) the defendant assumed
and exercised dominion and control over the property in an unlawful and unauthorized manner, to
the exclusion of, and inconsistent with, the plaintiff’s rights; and (3) the defendant refused the
plaintiff’s demand for return of the property. See Automek, Inc. v. Orandy, 105 S.W.3d 60, 63
(Tex. App.—Houston [1st Dist.] 2003, no pet.). A worker in Texas who repairs a vehicle may
keep the vehicle until either “(1) the amount due under the contract for the repairs is paid; or (2) if
no amount is specified by contract, the reasonable and usual compensation is paid.” TEX. PROP.
CODE ANN. § 70.001(a). A lienholder who retains possession of the vehicle for thirty days after
the charges accrue must give written notice to the owner of the amount of the charges and a request
for payment. Id. § 70.006(a)–(b); Dob’s Tire & Auto Ctr. Safeway Ins. Agency, 923 S.W.2d 715,
720 (Tex. App.—Houston [1st Dist.] 1996, writ dism’d w.o.j.).
If the charges are not paid by the thirtieth day after the notice is mailed, the lienholder may
sell the vehicle at a public sale and apply the proceeds to the charges. TEX. PROP. CODE ANN.
§ 70.006(e)–(f). A lienholder commits conversion, however, if he fails to comply with section
70.006’s notice requirements before selling the vehicle. Elite Towing, Inc. v. LSI Fin. Group, 985
S.W.2d 635, 645 (Tex. App.—Austin 1999, no pet.). Section 70.006 directs that the “holder of a
lien” must send notice by certified mail, return receipt requested, to the owner and any lien holder
of the motor vehicle recorded on the certificate of title, including the amount of the charges and a
request for payment. TEX. PROP. CODE ANN. § 70.006(a)–(b). The notice must contain four
statutorily dictated pieces of information:
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(1) the physical address of the real property at which the repairs to the motor vehicle
were made;
(2) the legal name of the person that holds the possessory lien for which the notice
is required;
(3) the taxpayer identification number or employer identification number, as
applicable, of the person that holds the possessory lien for which the notice is
required; and
(4) a signed copy of the work order authorizing the repairs on the motor vehicle.
Id. § 70.006(b-1).
The holder of a possessory interest also must file, within thirty days of when the charges
accrue, the same notice with the local county tax assessor-collector’s office along with a $25
administrative fee. Id. § 70.006(a).
In this case, the summary judgment evidence shows that AAMCO and Soria made an
agreement that AAMCO would repair the vehicle and Soria authorized the charges of the repairs.
The summary judgment evidence also shows that AAMCO established a valid mechanic’s lien on
the vehicle and complied with section 70.006’s notice requirements before selling the vehicle. See
id. § 70.006. The notice of intention to file mechanic’s lien letter in the record complies with
Section 70.006. See id. § 70.006(a)–(b). The repairs were completed on December 8, 2018, and
AAMCO sent the notice letter by certified mail with return receipt requested on December 13,
2018, within the 30-day period. See id. § 70.006(a). The letter was sent to the title owner of the
vehicle, Liendo, the lienholder recorded on the certificate of title, Skopos, and the person who
authorized the repairs, Soria. See id. (requiring notice to be sent to the owner and each holder of
a lien recorded on the certificate of title). 2 The letter was also filed with the Bexar County Tax
2
The certificate of title in the record lists Liendo as the owner of the vehicle and Skopos as a recorded lienholder. As
such, this is the information we use to determine whether AAMCO and Cox complied with section 70.006’s notice
requirements prior to selling the vehicle. See TEX. PROP. CODE ANN. § 70.006(a)–(b-1).
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Assessor-Collector’s Office. See id. The notice letter had the four statutorily dictated pieces of
information because it 1) had the address where the repairs to the motor vehicle were made, 2) had
the legal name of the person that held the possessory lien for which notice was required, AAMCO,
3) had AAMCO’s employer identification number, and 4) contained the signed copy of the work
order authorizing the repairs on the motor vehicle attached to it. See id. § 70.006 (b-1). The letter
also included the amount of the charges and a request for payment. See id. § 70.006(b).
Therefore, we conclude that AAMCO complied with section 70.006’s notice requirements
before selling the vehicle. 3 Because Soria authorized the repairs and AAMCO held a valid lien on
the vehicle, Good Guys’ conversion claim fails. See Tex-On Motor Ctr. v. Transouth Fin. Corp.,
No. 14-04-00366-CV, 2006 WL 664161, at *5 (Tex. App.—Houston [14th Dist.] Mar. 16, 2006,
no pet.) (mem. op.) (“A finding that the Fitzpatricks authorized the repairs and Tex–On held a
valid worker’s lien on the vehicle would thus negate TranSouth’s and the Fitzpatricks’ conversion
claims.”); see also Simpson v. Pinkson, No. 02-05-00352-CV, 2007 WL 1501965, at *2 (Tex.
App.—Fort Worth May 24, 2007, no pet.) (mem. op.) (“A lienholder commits conversion,
however, if he fails to comply with section 70.006’s notice requirements before selling the
vehicle.” (citing Elite Towing, Inc., 985 S.W.2d at 645)). Therefore, we hold that there is no
evidence that Cox converted the vehicle. See Tex-On Motor Ctr., 2006 WL 664161, at *5.
3. Deceptive Trade Practices Act
Good Guys argues the trial court erred in granting summary judgment on its DTPA claims.
In its petition, Good Guys alleged DTPA claims based on “false, misleading, or deceptive acts or
3
Good Guys argues that the letter was not sent to Soria’s correct address. However, the issue was not raised in the
trial court and, therefore, cannot be raised on appeal for the first time. See TEX. R. APP. P. 33.1(a). Further, the only
evidence that indicates that the address may have been incorrect is in Soria’s deposition testimony, which was
excluded from the record due AAMCO and Cox’s sustained objections. Finally, Section 70.006 only requires that
notice be given to those listed in the certificate of title. See id. § 70.006(a). Here, the record indicates that the
certificate of title only listed Liendo and Skopos, to whom notice was provided.
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practices” under the DTPA’s “laundry list” and unconscionability claims. AAMCO and Cox’s
motion specifically addressed Good Guys’ “laundry list” claims, the alleged misrepresentations
they made, and Carl and Rose Cox’s lack of performance in their individual capacities. We hold
AAMCO and Cox’s motion expressly presented a no-evidence ground as to the “false, misleading,
or deceptive acts or practices” element of Good Guys’ “laundry list” claims. See TEX. BUS. &
COM. CODE ANN. § 17.51(a)(1) (providing a consumer may maintain a cause of action for the
“false, misleading, or deceptive acts or practices” listed in section 17.46). However, we hold that
the trial court erred in rendering summary judgment on Good Guys’ unconscionability claim
because AAMCO and Cox failed to address this claim in its motion for summary judgment.
i. “Laundry List” Claims
a. AAMCO’s misrepresentation that the inspection would be $750 and
lack of authorization to complete the repair
Good Guys argues it produced evidence showing AAMCO and Cox misrepresented to
Soria the price that that they would charge for the repairs and that Soria relied upon these
misrepresentations. It argues this evidence raises a fact issue under section 17.46(b)(2), (b)(5),
b(7), and (b)(13) of the Texas Business and Commercial Code. See TEX. BUS. & COM. CODE ANN.
§ 17.46(b)(2),(5),(7),(13). The evidence Good Guys relies upon to support these arguments are
from Soria’s deposition testimony, which is excluded from our review. Without this deposition
testimony, there is no evidence to support these assertions. Accordingly, the trial court did not err
by granting a no-evidence summary judgment on these claims. See TEX. R. CIV. P. 166a(i).
b. AAMCO’s misrepresentation that it replaced the entire transmission
Good Guys also argues it produced evidence that AAMCO and Cox led Soria to believe
they would replace her entire transmission, but only replaced some parts, in violation of sections
17.46(b)(6) and (22). The only evidence in the record that Good Guys relies upon in support of
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its argument is the quotation sheet, which lists the parts that AAMCO and Cox fixed. Good Guys,
however, fails to point to any evidence in the record indicating that AAMCO and Cox had
promised—and that Soria had agreed to—further or different repairs. To the extent Good Guys
relies on any part of Soria’s deposition testimony, it is excluded from our review because the trial
court struck the evidence. We therefore hold Good Guys produced no evidence of the “false,
misleading, or deceptive conduct” of their “laundry list” claims. See McNeely v. Salado Crossing
Holding, L.P., No. 04-16-00678-CV, 2017 WL 2561551, at *4 (Tex. App.—San Antonio June 14,
2017, no pet.) (mem. op.) (holding the appellants produced no evidence of the “false, misleading,
or deceptive conduct” element of their “laundry list” claims).
ii. Unconscionability Claim
Finally, Good Guys argues the trial court erred by granting AAMCO and Cox’s summary
judgment on Good Guys’ unconscionability claim because AAMCO and Cox failed to move for
summary judgment on this claim. AAMCO and Cox respond that they challenged all of Good
Guys’ DTPA claims in its no-evidence motion and that Good Guys was required to specially
except if it believed the unconscionability claim was not sufficiently specific.
A summary judgment cannot be affirmed on any ground not specifically presented in the
motion for summary judgment. See Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992).
Moreover, a summary judgment cannot be granted on the entirety of an opponent’s case unless the
motion addresses each of the non-movant’s causes of action. See Goughnour v. Patterson, Tr. of
the Deborah Patterson Howard Tr., No. 12-17-00234-CV, 2019 WL 1031575, at *10 (Tex.
App.—Tyler Mar. 5, 2019, pet. denied) (mem. op.) To determine the extent of AAMCO and Cox’s
motion for summary judgment, we may only review the specific reasons for the summary judgment
stated in the motion, and we cannot rely on briefs or summary judgment evidence to determine the
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basis. See Ecotech Int’l, Inc. v. Griggs & Harrison, 928 S.W.2d 644, 649–50 (Tex. App.—San
Antonio 1996, writ denied).
Here, in the DTPA section of Cox’s motion for summary judgment, AAMCO and Cox
argue there is no evidence that “[a]ny of the alleged violations listed in para. 26 a–f occurred,”
which refers to Good Guys’ amended petition. In the petition, paragraphs 26 a–f address the
“laundry list” violations under the DTPA. Following this, AAMCO and Cox state in their motion
that there is no evidence “[t]hat Plaintiff relied upon any alleged misrepresentation made by
Defendants, or any Defendant; and/or . . . [t]hat Carl Cox or Rose Cox performed any act in their
individual capacity.” AAMCO and Cox, however, fail to address the unconscionability claim that
Good Guys pled in paragraph 27 of its amended petition. Because AAMCO and Cox failed to
address Good Guys’ unconscionability claim in its motion, the trial court erred in rendering
summary judgment on this claim. See TEX. BUS. & COM. CODE ANN. § 17.50(a)(3); id. at 650
(reversing and remanding specific causes, such as an unconscionability claim, to the trial court
because the summary judgment disposed of causes of action not addressed in the summary
judgment motions).
4. Chapter 70 of the Texas Property Code
Good Guys argues the trial court erred in granting summary judgment on its Chapter 70
cause of action because AAMCO and Cox did not comply with Chapter 70 in attempting to
exercise its alleged mechanic’s lien and foreclosure. AAMCO and Cox respond that summary
judgment was proper because Good Guys was not the owner of the vehicle and even if it were the
owner, AAMCO and Cox had the right to retain the vehicle pursuant to its properly perfected
mechanic’s lien, which they properly foreclosed on.
Good Guys contends that there is evidence that AAMCO and Cox violated Chapter 70 by:
1) performing work that was not authorized by the owner or lienholder of the vehicle because Soria
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did not authorize repairs amounting to $4,685.96; 2) failing to provide proper notice of the accrual
of charges and their notice to foreclose on the vehicle; and 3) failing to conduct a public sale of
the vehicle in accordance with Chapter 70 of the Property Code. We hold that the trial court erred
in granting AAMCO and Cox’s no-evidence motion for summary judgment because there is more
than a scintilla of evidence that AAMCO failed to conduct a public sale in accordance with Section
70.006 of the Texas Property Code.
Section 70.006 provides the procedure for the sale of a motor vehicle. It directs that the
“holder of a lien” must send a notice by certified mail, return receipt requested, to the owner and
any lien holder of the motor vehicle of record including the amount of the charges and a request
for payment. TEX. PROP. CODE ANN. § 70.006(a)–(b). The holder of a possessory interest must
also, within thirty days of when the charges accrue, file the same notice with the local county tax
assessor-collector’s office along with a $25 administrative fee. Id. § 70.006(a). Section 70.006
states that once notice is provided to the owner of or the holder of a lien on the motor vehicle, the
owner or lienholder may obtain possession of the vehicle by paying all charges due to the
lienholder before the 31st day after the date a copy of the notice is filed with the county tax
assessor-collector’s office. Id. § 70.006(e). If the charges are not paid before the 31st day after
the date a copy of the notice is filed with the county tax assessor-collector’s office, then the
lienholder may sell the vehicle at a public sale and apply the proceeds to the charges. Id.
§ 70.006(f). “The public sale may not take place before the 31st day after the date a copy of the
notice is filed with the county tax assessor-collector’s office.” Id.
“Public sale” is not defined in the Texas Property Code or in caselaw on this issue.
However, the Mechanic’s Lien Foreclosure Form filed with the Texas Department of Motor
Vehicles states that “the mechanic may sell at public sale anytime on or after the 31st day after a
copy of the notice or publication was filed with the county tax assessor-collector’s office.” Then,
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in the application for title section, it states “[t]he highest bidder at public sale must apply for title.”
This “highest bidder” language implies that a public sale must be known to more than one person.
See S.P. Auto Sales, Inc. v. Benites (In re Benites), No. 11-35444-SGJ-7, 2012 WL 4793469, at *5
(Bankr. N.D. Tex. Oct. 9, 2012) (“a public sale appears to have one or more of the following
characteristics: (1)the sale must take place at a specific time and place; (2) there is some sort of
advertisement or public notice preceding the sale; and (3) the public must have access to the sale.”);
see also Williams v. Precision Tire & Alignment, Inc., No. 09-02-063-CV, 2002 WL 31628017, at
*3 (Tex. App.—Beaumont 2002, no pet.) (per curiam) (not designated for publication) (holding
that there was a fact issue as to whether the sale was public because the record does not indicate
anyone other than the purchaser knew of its occurrence).
Here, the Mechanic’s Lien Foreclosure Form in the record states that the vehicle was sold
at a public sale at the location of AAMCO’s business to purchaser Cox. Cox’s deposition
testimony, which is in the summary judgment record, provides that he paid $4,685.96 for the
vehicle. However, Cox averred that he did not attempt to sell the vehicle to anyone else. He stated
that, after the sale, he went to the courthouse and transferred the title to himself. This evidence
constitutes more than a scintilla of evidence that a public sale was not conducted, thereby violating
the sale procedures in Section 70.006. See Williams, 2002 WL 31628017, at *3; see also Villarreal
v. Jimenez, No. 04-15-00544-CV, 2016 WL 3625667, at *4 (Tex. App.—San Antonio July 6, 2016,
no pet.) (mem. op.) (holding that a foreclosure was not by public sale); In re Benites, 2012 WL
4793469, at *5 (holding that a sale violated section 70.006(f) of the Property Code because it had
the characteristics of a private sale when the vehicle was sold via an advertisement on craigslist to
an individual who contacted the seller over the phone). Therefore, we conclude that Cox’s
testimony, in which he stated that he sold the vehicle to himself and did not attempt to sell the
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vehicle to anyone else, presented more than a scintilla of evidence raising a genuine issue of
material fact regarding Good Guys’ Chapter 70 claim.
Because Good Guys raised a genuine issue of material fact sufficient to defeat AAMCO
and Cox’s no-evidence motion for summary judgment regarding its Chapter 70 claim, we must
address AAMCO and Cox’s traditional motion for summary judgment regarding that claim. See
Ford Motor Co., 135 S.W.3d at 600. In its traditional motion for summary judgment, AAMCO
and Cox provide the elements of Chapter 70.006 of the Texas Property Code and explain how they
met most of the elements as a matter of law, but they fail to address how the sale was a “public
sale” in accordance with Chapter 70.006. Therefore, AAMCO and Cox failed to establish their
right to summary judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Briggs v. Toyota Mfg.
of Tex., 337 S.W.3d 275, 282 (Tex. App.—San Antonio 2010, no pet.) (requiring a movant to first
establish its right to summary judgment as a matter of law). Further, Cox’s testimony presents a
fact issue as to whether the sale of the vehicle was a public sale. See Briggs, 337 S.W.3d at 282.
Therefore, we conclude AAMCO and Cox failed to prove they were entitled to summary judgment
as a matter of law on their Chapter 70 claim.
CONCLUSION
We hold that Good Guys waived its complaints regarding the trial court’s evidentiary
rulings and whether there had been adequate time for discovery prior to the no-evidence summary
judgment hearing. Because Good Guys’ unconscionability claim was not properly addressed in
AAMCO and Cox’s motion for summary judgment, we reverse the trial court’s judgment on this
claim. Because more than a scintilla of evidence exists as to whether a public sale was conducted
in accordance with section 70.006 of the Texas Property Code, we also reverse the trial court’s
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judgment on Good Guys’ claim under section 70.006. We affirm the trial court’s judgment on all
other claims, and we remand for further proceedings consistent with this opinion.
Rebeca C. Martinez, Chief Justice
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