Danevang Farmers Cooperative Society v. Indeco Products, Inc., No. 13-04-445-CV (Tex. App. 10/12/2006)
| Decision Date | 12 October 2006 |
| Docket Number | No. 13-04-445-CV.,13-04-445-CV. |
| Parties | DANEVANG FARMERS COOPERATIVE SOCIETY, ET AL., Appellants, v. INDECO PRODUCTS, INC., Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 329th District Court of Wharton County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
This is an appeal from a no-evidence summary judgment granted in favor of appellee Indeco Products, Inc. (Indeco), and against appellants, Danevang Farmers Cooperative Society, Mark Hajovsky, Ledwig Partners, Walter Bowers, Gene W. Hansen, Edward Gurecky, Jensen Farms, M & m Farms/Jenkins & Jenkins, Edgar Beyer, Michael Plentl, Lawrence Petersen, R & J Wind, R & K Farms, Steffek Farms, Joe Hickl, Delgado Farms, Jack Birkner, Sheldon Holub, Bruce Korenek, Blue Creek Rice Farms, Dean Hansen, Donald Hickl, Joe L. Saha, Ronald Hickl, A.J. Kacer, Jojnnie Carroll, Hoffpauir Farms, Joe Zalman, Jr., Richard Anderson, Greg Saha, Berglund Farms, Johnny Brodsgaard, Allen Bacak, and Michael Steffek (collectively referred to as Danevang). By one issue Danevang generally asserts that the trial court erred in granting summary judgment in favor of Indeco on its claims for breach of contract, violation of the Deceptive Trade Practices Act (DTPA), and products liability. We reverse and remand.
Danevang filed the underlying suit against Indeco, asserting causes of action for breach of contract, violation of the DTPA, and products liability.1 Danevang alleged that it had entered into a contract with Indeco for the sale of cotton module covers manufactured by International Fiber Packaging (IFP) based on representations and warranties made on the part of Indeco with respect to the IFP covers. Danevang further alleged that Indeco substituted 153 defective Gerrard Cotton Topper 1995 covers for the IFP covers, which allegedly damaged 153 cotton modules.
Indeco filed a no-evidence motion for summary judgment premised on each of Danevang's causes of action. The trial court granted the motion and dismissed Danevang's claims against Indeco. This appeal ensued.
Pursuant to Texas Rule of Civil Procedure 166a(i), a defendant may move for summary judgment on the ground that there is "no evidence of one or more essential elements" of a plaintiff's claim. Tex. R. Civ. P. 166a(i). Once a defendant moves for summary judgment on no-evidence grounds, the burden shifts to the plaintiff to present evidence sufficient to raise a genuine issue of material fact on the challenged element or elements. See id.; Branton v. Wood, 100 S.W.3d 645, 647 (Tex. App.-Corpus Christi 2003, no pet.) (citing Tex. R. Civ. P. 166a cmt.). If the plaintiff fails to satisfy its burden, the trial court must grant the motion. See Branton, 100 S.W.3d at 647 ().
In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard that is applied in reviewing directed verdicts. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.-Corpus Christi 1999, pet. denied). Therefore, we review the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. King Ranch, 118 S.W.3d at 750; Zapata, 997 S.W.2d at 747 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Moore v. Kmart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied)).
"A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact." King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., 953 S.W.2d at 711). Thus, a no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. (citing Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (quoting Merrell Dow Pharms., 953 S.W.2d at 711). 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. (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
When, as in this case, a trial court's order granting summary judgment does not state the grounds upon which it was granted, the judgment must be affirmed if any of the grounds advanced in the summary judgment motion are meritorious. Branton, 100 S.W.3d at 647 ().
On appeal, Indeco argues that Danevang's claims for breach of contract, deceptive trade practices, and products liability fail because there is no evidence that Indeco sold Danevang the covers in question-a fact that Indeco asserts must form the basis of each of Danevang's claims.2 Therefore, before we reach the merits of Danevang's contentions, we will first address Indeco's challenges to the summary judgment evidence.
To support its assertion that Danevang presented no evidence of this basic fact, Indeco (1) argues that Robert Wilkins, Danevang's manager, had "no personal knowledge of Indeco selling any Gerrard covers to Danevang" on which to base his affidavit, (2) suggests that Wilkins's affidavit presents nothing more than factual conclusions that "Indeco sold the 153 cotton module covers in issue to Danevang," (3) asserts that the invoices provided by Danevang as summary judgment evidence require a piling of inferences in order to raise a fact issue, which is not permitted under Texas law, and (4) argues that the equal inference rule, when applied to the summary judgment evidence in the instant case, prohibits the inference that it sold the covers at issue to Danevang.3
An appellee may challenge the competency of the summary judgment evidence on appeal. See, e.g., Stewart v. Sanmina Tex., L.P., 156 S.W.3d 198, 206-07 (Tex. App.-Dallas 2005, no pet.). In order to challenge on appeal a defect in form in the opposing party's evidence, the contention must have been properly preserved in the trial court. Stewart, 156 S.W.3d at 207 (citing Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam); Tex. R. Civ. P. 166a(f)). However, a defect of substance in the opposing party's evidence can be raised for the first time on appeal. Id. (). The failure to affirmatively show that an affiant had personal knowledge is an example of a defect in form. Id. "Substantive defects are those that leave the evidence legally insufficient, and include affidavits which are nothing more than legal or factual conclusions." Id. ().
Indeco asserts that Wilkins had "no personal knowledge of Indeco selling any Gerrard covers to Danevang," and therefore, his affidavit is incompetent summary judgment evidence. However, based on the record, we conclude that Indeco failed to preserve this contention for our review.
Because the failure to show that an affiant had personal knowledge on which to base his affidavit is a defect of form, Indeco had to preserve this issue for review. See Stewart, 156 S.W.3d at 207; see also Tex. R. App. P. 33.1(a). In order to preserve a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request or objection and (2) the trial court ruled on the request or objection either expressly or implicitly. Tex. R. App. P. 33.1(a).
Although Indeco, in its reply to Danevang's response to its motion for summary judgment, objected to the admission of the affidavit and argued that Wilkins lacked personal knowledge of the statements contained in the affidavit, the record does not reflect that the trial court ruled on Indeco's objection to the affidavit.4 See id. at rule 33.1(a)(2).
Therefore, Indeco's contention that Wilkins's affidavit is incompetent summary judgment evidence because it is not based on personal knowledge is not before us.
Indeco suggests that Wilkins's assertion in his affidavit that Indeco sold the 153 covers at issue to Danevang is purely conclusory.5 We disagree.
A conclusory statement "is one that does not provide the underlying facts to support the conclusion." Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no writ). Conclusory statements in affidavits are not proper as summary judgment proof. See id. (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)).
In his affidavit, Wilkins stated that Indeco "delivered to Danevang Farmers Cooperative Society (Danevang) the 153 defective covers manufactured by Gerrard and marked 'Gerrard Cotton Topper 1995' which are the subject of this lawsuit." To support this statement, Wilkins outlined the following in his affidavit: (1) Danevang began ordering white IFP panel tarps from Indeco in 1998 and continued purchasing them through 2001; (2) Danevang did not purchase tarps from any other supplier during this time period; (3)...
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