Ron v. Airtran Airways, Inc., NO. 14-11-01110-CV

CourtCourt of Appeals of Texas
Writing for the CourtTracy Christopher
PartiesAVI RON, Appellant v. AIRTRAN AIRWAYS, INC., Appellee
Decision Date12 March 2013
Docket NumberNO. 14-11-01110-CV

AVI RON, Appellant

NO. 14-11-01110-CV

State of Texas in the Fourteenth Court of Appeals

Dated: March 12, 2013

Reversed and Remanded and Opinion and Dissenting filed March 12, 2013.

On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 983669


In this breach-of-contract case, a passenger with confirmed reservations on an overseas flight sued the airline after it told the passenger that the flight was canceled. The trial court granted the airline's traditional motion for summary judgment, and the passenger appealed. Because the airline failed to conclusively establish its right to judgment as a matter of law on the grounds expressly presented in its summary-judgment motion, we reverse the judgment and remand

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the case.


Appellant Avi Ron purchased five airline tickets from AirTran Airways for himself and his family to fly from Nassau International Airport in the Bahamas to Orlando, Florida on January 3, 2010. It is undisputed that Ron and his family arrived at the airport well in advance of the scheduled departure, but after waiting for several hours, Ron and the other passengers were told that the flight was canceled. AirTran and Ron give different versions of the events that transpired at the airport. In accordance with the standard of review, we summarize the evidence in the light most favorable to Ron, as the summary-judgment respondent.

According to Ron's affidavit testimony, passengers were told that they would have to wait three days for flight service, and they should attempt to secure private lodging because local hotels might be unable to accommodate everyone. Ron states that he and several other passengers went to AirTran's office at the airport and spoke with Susan Bain. He describes their conversation as follows:

[Ms. Bain] informed the passengers that, "Things are a mess . . . . I am trying to train new agents; it is a work in progress . . . . We were unprepared to add this route . . . . We do not have the personnel to properly serve this route. . . . We are still trying to get things on stream. . . . It is embarrassing that we do not have a plane. . . ."1
Ms. Bain further explained to us that AIR TRAN was not required to fly passengers and that the AIR TRAN [sic] had no obligation to provide meals or lodging except for oversold flights. . . . Ms. Bain explained that "Air Tran never has to fly a scheduled flight even if it is not a safety or weather issue." She stated that is a "standard contract" with the passengers in the airline industry and part of the "ticket conditions that all passengers agree to when they buy a ticket". I, along with other passengers, asked Ms. Bain to provide the provisions that allow AIR TRAN to refuse to honor flight service.

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Ms. Bain explained that it was available at the AIR TRAN home office in Florida and that she did not have it available in the Bahamas. . . . The Contract of Carriage was not at the AIRTRAN customer service counter and it was not available for inspection at the airport.

When Bain turned to reenter AirTran's office, Ron "stepped behind her in the office doorway" and a Bahamian agent "jumped up and pushed the door" against Ron and other passengers, closing the door on Ron's finger. Ron then entered the office again, and the Bahamian agent became "very agitated, excited and loud." Ron states that he was not disorderly and did not direct profanity at any AirTran agent; nevertheless, a few minutes after he left AirTran's office, an airport security officer approached Ron and "discussed the situation with [Ron] and other passengers along with [AirTran's] agents." An AirTran agent told Ron that he and his family would receive lodging, transportation, and meals at AirTran's expense and would be accommodated on the next available flight by AirTran or an alternate airline, but the agent also cautioned Ron that the next scheduled flight was three days later, and that no alternative flights were available for booking. Ron declined the offer, leased a private aircraft, and he and his family flew home.

Ron sued AirTran, alleging violations of the Texas Deceptive Trade Practices-Consumer Protection Act and breach of contract, and AirTran moved for summary judgment on three grounds. First, AirTran stated that all of Ron's claims are preempted by the Aircraft Deregulation Act. Second, AirTran asserted that its Contract of Carriage "incorporates the DOT [Department of Transportation] compensation requirements for denied boarding" and "provides that a passenger is not entitled to compensation for involuntary denied boarding where the flight is cancelled. The only compensation allowed is for a refund of the unused flight segment." Third, AirTran stated that under its Contract of Carriage, it had the right to deny transportation to Ron because he was disorderly.

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After amending his pleadings to eliminate claims other than his contract claim, Ron filed a summary-judgment response. He produced evidence that when he bought the plane tickets, AirTran sent him a confirmatory email in which AirTran stated as follows:

Condition of Contract: Air Transportation by AirTran Airways is subject to the terms of AirTran Airways' Condition of Contract including Contract of Carriage . . . . The AirTran Airways [C]ontract of Carriage may be inspected at AirTran Airways customer service counter. For more information, direct inquiries to AirTran Airways, Inc. Customer Relations Department . . . .2

This statement was followed by a Florida address.

Ron argued that under Title 14, section 253.4 of the Code of Federal Regulations, an "air carrier shall make the full text of each term that it incorporates by reference in a contract of carriage available for public inspection at each of its airport and city ticket offices." 14 C.F.R. § 253.4(b). If the carrier fails to do so, then the "carrier may not claim the benefit as against the passenger of, and the passenger shall not be bound by, any contract term incorporated by reference . . . ." Id. § 253.4(a). Ron argued that because AirTran failed to provide the contract of carriage for public inspection at the Nassau airport, it cannot avail itself of any provisions that were incorporated by reference into the contract of carriage.3

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The trial court granted Air Tran's motion for summary judgment without stating the grounds. In a single issue, Ron asks us to reverse the judgment because AirTran Airways failed to comply with the requirement to make its Contract of Carriage available at Nassau International Airport.


We review the trial court's grant of a summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam) (citing Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.2d 184, 192 (Tex. 2007)). We consider all 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. 2006). We must affirm the summary judgment if any of the movant's theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

The movant for 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). A defendant who moves for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

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2005). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

On appeal, the summary-judgment movant still bears the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). In considering grounds for reversal, we are limited to those grounds expressly set forth in the summary-judgment motions, answers, or other responses, and may not rely on the appellate briefs or summary-judgment evidence. D.M. Diamond Corp. v. Dunbar Armored, Inc., 124 S.W.3d 655, 659-60 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (op. on reh'g) (citing TEX. R. CIV. P. 166a(c) and McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)).


Ron's defenses to each of the grounds on...

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