David McDavid Nissan v. Subaru Am.
| Decision Date | 30 November 1999 |
| Docket Number | No. 05-97-00025-CV,05-97-00025-CV |
| Citation | 10 S.W.3d 56 |
| Parties | (Tex.App.-Dallas 1999) DAVID MCDAVID NISSAN, INC., Appellant v. SUBARU OF AMERICA, INC., Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. 93-9059-F
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Before Justices Whittington, James, and Moseley
David McDavid Nissan, Inc. ("McDavid") sued Subaru of America, Inc. ("Subaru") alleging Subaru refused to allow McDavid to relocate its Subaru dealership after orally consenting to the relocation. The trial court granted summary judgment in favor of Subaru on all of McDavid's claims. For the reasons set forth below, we affirm the trial court's judgment in part and reverse and remand in part.
Before reviewing the summary judgment evidence in conjunction with McDavid's points of error, we must first decide what evidence was properly before the trial court. In a crosspoint, Subaru asserts the trial court erred in not sustaining its objections and striking the two affidavits of McDavid's president, David McDavid, filed in support of its responses to Subaru's motions for summary judgment. Subaru first asserts the David McDavid affidavit dated June 26, 1996 is not competent summary judgment evidence because it: (1) did not state it was based upon David McDavid's personal knowledge and that the facts stated therein were true and correct; (2) did not set forth how David McDavid was competent to testify; and (3) merely stated legal conclusions. Subaru also asserts that the exhibits attached to the affidavit were not in admissible form.
To be competent summary judgment evidence, an affidavit must show affirmatively that it is based on personal knowledge and that the affiant is competent to testify to the matters stated therein. See Tex. R. Civ. P. 166a(f). An affidavit that does not positively and unequivocally represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). Here, David McDavid's June 26, 1996 affidavit does not state that the facts contained in it are true or within his personal knowledge; therefore, perjury cannot be assigned to it. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Gerstacker v. Blum Consulting Eng'rs, 884 S.W.2d 845, 848 (Tex. App.-Dallas 1994, writ denied). Accordingly, we conclude this affidavit is insufficient, and we will not consider it for any purpose. We sustain Subaru's crosspoint of error to the extent it complains of the June 26, 1996 David McDavid affidavit.Subarualso contends the David McDavid affidavit dated April 15, 1996 should not have been considered "for the same reasons." This statement in Subaru's brief mirrors the objection to the April 15, 1996 affidavit presented in its reply to McDavid's response to Subaru's fourth motion for summary judgment. Defects in the form of affidavits or attachments are not grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. See Tex. R. Civ. P. 166a(f). Our review of the April 15, 1996 affidavit shows that, contrary to Subaru's assertion, many of the objections specific to the June 26, 1996 affidavit do not apply to the April 15, 1996 affidavit. Accordingly, Subaru's general objection to the April 15, 1996 affidavit incorporating all of the objections to the June 26, 1996 affidavit was insufficient to notify the trial court of any deficiencies specific to the April 15, 1996 affidavit. By failing to present a specific objection, Subaru failed to preser ve any error for our review. See id. We overrule Subaru's crosspoint to the extent it complains of David McDavid's April 15, 1996 affidavit.
Having decided what evidence was properly before the trial court, we review this evidence in light of McDavid's points of error attacking the summary judgment entered below. In doing so, we take evidence favorable to the nonmovant as true. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We will not consider evidence that favors the movant's position unless it is uncontroverted. See Harwell v. State Farm Mut. Auto. Ins., 896 S.W.2d 170, 173 (Tex. 1995); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. See Nixon, 690 S.W.2d at 549. From this perspective, we summarize the evidence before the trial court as follows.
McDavid owned and operated a Subaru dealership at 11200 Gulf Freeway (the "Dealership") and an Oldsmobile dealership at 6800 Gulf Freeway, both in Houston, Texas. In 1991, McDavid and John Gage, Subaru's regional vice-president, discussed the possibility of McDavid relocating the Dealership to 6800 Gulf Freeway and relocating the Oldsmobile dealership to 11200 Gulf Freeway. Gage orally consented to the relocation of the Dealership. McDavid did not submit a written request to relocate. Instead, relying on Gage's oral consent, he renovated the 11200 Gulf Freeway location and moved the Oldsmobile dealership there in preparation for moving the Dealership to 6800 Gulf Freeway.
On November 6, 1991, Gage sent McDavid a letter stating Subaru had just learned McDavid planned to move the Dealership to 6800 Gulf Freeway and that Subaru would not consent to such a move. This prevented McDavid from moving the Dealership. Thereafter, McDavid terminated the Dealership and two other Subaru dealerships it owned. Pursuant to the Texas Motor Vehicle Commission Code ("Code"), McDavid received a check from Subaru in payment for certain assets repurchased from the three dealerships. McDavid then sued Subaru for refusing to permit McDavid to relocate the Dealership, alleging violations of article 4413(36), section 5.02(15) of the Code,1 breach of contract, breach of the duty of good faith and fair dealing, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA").
Subaru moved for summary judgment on all of McDavid's causes of action, asserting McDavid was barred as a matter of law from bringing its claims because it failed to raise those claims before the Texas Motor Vehicle Commission ("TMVC"). Subaru also asserted that, by terminating the Dealership, McDavid elected its remedy and was not entitled to recover any additional money from Subaru. Subaru subsequently filed additional motions for summary judgment on McDavid's breach of contract, DTPA, and breach of good faith and fair dealing claims on various other grounds.
Before the trial court ruled on Subaru's motions, McDavid filed a supplemental petition and asserted that Subaru was "equitably estopped" from denying the existence of its agreement with McDavid. The trial court subsequently granted Subaru's first three motions for summary judgment on McDavid's causes of action for violations of the Code, breach of contract, DTPA, and good faith and fair dealing claims without stating the grounds upon which its ruling was based. The trial court, reading McDavid's supplemental petition broadly to also plead a claim of promissory estoppel, specifically excepted McDavid's "claims and causes of action for promissory and/or equitable estoppel" from the partial summary judgment.
Subaru filed a fourth motion for summary judgment asserting it was entitled to judgment as a matter of law on all of McDavid's asserted causes of action because they were barred under the doctrine of accord and satisfaction and because McDavid failed to exhaust its administrative remedies by first presenting its claims to the TMVC. Subaru also asserted that, as a matter of law, no cause of action existed for "equitable estoppel," and that McDavid's promissory estoppel claim was barred as a matter of law because (1) it would not be unjust to prevent McDavid from trying to enforce the alleged promise, (2) the terms of the alleged promise were too vague to be enforced, and (3) McDavid was not damaged by the alleged promise. McDavid responded, among other things, that to require it to first present its claims to the TMVC would violate its constitutional rights to trial by jury and open courts. The trial court subsequently granted Subaru's fourth motion for summary judgment.
McDavid timely perfected this appeal. However, McDavid does not challenge the summary judgment granted in favor of Subaru on McDavid's causes of action for "equitable estoppel" and for violation of article 4413(36), section 5.02(15) of the Code. We thus affirm those portions of the summary judgment. In doing so, we do not address whether equitable estoppel may be asserted offensively. See Crowder v. Tri-C Resources, Inc., 821 S.W.2d 393, 397 (Tex. App.-Houston [1st Dist.] 1991, no writ) (equitable estoppel is defensive in character and may not be used to establish a cause of action where none exists).
The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit; rather, the rule provides a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. See Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). To obtain a summary judgment, the movant has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c).
Summary judgment for the defendant is proper when the summary judgment evidence negates an essential element of the plaintiff's cause of action as a matter of law or conclusively establishes all the elements of an affirmative defense. See Black v. Victoria Lloyds...
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