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Affirmed and Majority and Dissenting = Opinions=20 filed January 9, 2007.

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-04-00888-CV

_______________

 

PABLO TELLO, Appellant

 

V.

 

BANK ONE, N.A. = and BANC ONE=20 ACCEPTANCE CORP., Appellees

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On Appeal from the County Civil=20 Court at Law No. 2

Harris County, = Texas

Trial Court Cause No.=20 786,601

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 D I S S E = N T I N=20 G  O P I N I O N

 

Appellees Bank One, = N.A.=20 (ALienholder@) and Banc One = Acceptance=20 Corporation (AAssignee@) filed suit against = appellant=20 Pablo Tello to recover sums they claim were owing under the lease=20 agreement; however, they attached only part of the lease agreement = to=20 their pleadings, and when they moved for summary judgment in the = trial=20 court, they made the same mistake.  Consequently, our = appellate=20 record contains only part of the contract upon which the trial=20 court=3Ds summary judgment is = based.  As explained in more detail below, this omission is=20 significant because to recover damages for breach of a contract as = a=20 matter of law, the movant must establish the amount of damages = flowing=20 from the breach. In this case, the part of the lease agreement = omitted=20 from our record contains terms regarding early termination of the = lease,=20 any security interest in the vehicle, and  default charges=20 C parts that would = show how much=20 Tello would owe if he terminated the lease before the end of its = term and=20 how much the Lienholder and the Assignee (hereinafter collectively = ABank One = Entities@) would be entitled = to recover=20 for breach of the lease agreement.  Moreover, because the = Assignee=20 does not have the vehicle and has no way of knowing the amount of = mileage=20 on the vehicle, it is not possible to calculate any applicable = mileage=20 penalty, a data point necessary to determine the amount ostensibly = due=20 under the lease.  Based on the portions of the lease that = are=20 in the summary-judgment evidence, Tello owes only a fraction of = the amount=20 the trial court awarded in actual damages.

In his appellate = brief, Tello=20 asserts that the trial court erred in granting summary judgment as = to the=20 amount of contract damages for which he is liable.  = Construing=20 Tello=3Ds brief liberally, as = this=20 court must, Tello argues that the traditional summary-judgment = motion and=20 attached evidence did not prove the lack of a genuine issue of = fact and=20 that the Bank One Entities are entitled to judgment as a matter of = law for=20 the damages awarded on their contract claim.  This assertion = is=20 correct and should be sustained, but rather than reaching the = merits of=20 Tello=3Ds winning argument, = the court=20 erroneously concludes that Tello should lose based on a failure to = preserve error. 

According to the = majority,=20 Tello did not expressly present his sixth issue to the trial = court,=20 thereby waiving this issue.  This analysis is based on the=20 majority=3Ds conclusion that=20 Tello=3Ds argument is not an = attack on=20 the sufficiency of the summary-judgment motion, a point that need = not be=20 raised in the trial court to be asserted on appeal.  This = conclusion=20 is incorrect because, under a liberal construction, = Tello=3Ds argument under his = sixth=20 issue challenges the sufficiency of the Bank One = Entities=3D motion and proof of = their=20 entitlement to summary judgment on their contract claim.  = Therefore,=20 contrary to the majority=3Ds assertion, this = argument did=20 not have to be raised in the trial court.  See Anderson = Hosp. and=20 Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (stating = that,=20 as to traditional motions for summary judgment, nonmovant has no = duty to=20 respond unless the movant conclusively establishes its claim or=20 defense).  There is no valid basis to find waiver for failure = to=20 preserve error in the trial court.

The court also holds = that Tello=20 waived this point through inadequate briefing.  This = analysis, though=20 a somewhat subjective call, is contrary to the standards the Texas = Supreme=20 Court has articulated for disposing of parties=3D appellate rights = without=20 reaching the merits of their appellate points.  Under both = the Texas=20 Rules of Appellate Procedure and Texas Supreme Court precedent, = this court=20 must construe the briefing rules reasonably, yet liberally. = See=20 Tex. R. App. P. = 38.1(h),=20 38.9; Republic Underwriters Ins. Co. v. Mex‑Tex, = Inc., 150 S.W.3d=20 423, 427 (Tex. 2004).  Substantial compliance with the = briefing rules=20 may be sufficient, and this court is not required to insist on = unerring=20 compliance with them. Bufkin v. State, 179 S.W.3d 166, 174 = (Tex.=20 App.CHouston [14th Dist.] = 2005),=20 aff=3Dd, No. PD-0012-06, = CS.W.3dC, 2006 WL = 3077474,  (Tex.=20 Crim. App. Apr. 26, 2006).  Texas courts have embraced this = liberal=20 briefing standard largely because the proper objective of a = reviewing=20 court is to reach a just, fair, and equitable adjudication of the = rights=20 of litigants under established principles of substantive = law.  While=20 well-organized and sharply focused writing is always appreciated, = that is=20 not the standard by which we determine the legal adequacy of = appellate=20 briefs.  The Texas Supreme Court has set a far more forgiving = standard, one that requires appellate courts to construe arguments = liberally so that parties=3D poor presentation of = their=20 appellate points does not result in a forfeiture of the = opportunity for a=20 merits review.

Ideally, an=20 appellant=3Ds brief should = contain a clear=20 and concise argument for the contentions made, with appropriate = citations=20 to authorities and to the record.  Tex. R. App. P. = 38.1(h).  We=20 must interpret this requirement reasonably and liberally.  = See=20 Tex. R. App. P. = 38.1(h),=20 38.9; Mex‑Tex, Inc., 150 S.W.3d at 427; see also = Tribble &=20 Stephens Co v. RGM Constructors, L.P., 154 S.W.3d 639, 675 = (Tex.=20 App.CHouston [14th Dist.] = 2004, pet.=20 denied) (plurality op.) (construing appellate brief liberally as = asserting=20 that contract was ambiguous even though brief did not state that = contract=20 was ambiguous).  Applying these standards in construing=20 Tello=3Ds appellate brief, = this court=20 should discern, at a minimum, an argument challenging the trial=20 court=3Ds summary judgment in = favor of=20 the movants, the Bank One Entities, on their contract = claim.

Under the applicable = standard=20 of review, we must take as true all evidence favorable to Tello = and make=20 all reasonable inferences in his favor.  See Dolcefino v.=20 Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] = 2000, pet.=20 denied).  Thus, in evaluating the propriety of summary = judgment, we=20 must consider the following facts and all reasonable inferences=20 therefrom:

Tello, who speaks = Spanish but=20 does not read or speak English, went to Randall Reed Ford in May = 1999, to=20 buy a truck.  He signed a contract, written in English, which = he=20 believed to be an agreement to purchase the vehicle, based on=20 conversations he had with the Spanish-speaking salesman.  = However,=20 the contract he signed was a lease agreement and he unknowingly = had agreed=20 to lease C not buy C the truck. The lease = identified an assignee, Bank One Texas Leasing Corporation, to = whom=20 monthly payments were to be made.  Tello made monthly = payments on the=20 truck for the next three years.  Then one day he called to = find out=20 the outstanding balance and was told that he had not bought the = truck but=20 had leased it instead.  While still current in his  = payments, in=20 July 2002, Tello returned the truck to Randall Reed Ford, and = continued to=20 make payments on it through September 2002.

       =20 In  his sixth issue, Tello asserts that the trial court erred = in=20 granting summary judgment because, under the applicable standard = of=20 review, Tello=3Ds affidavit raised a = genuine=20 issue of material fact regarding the amount of contract damages = for which=20 he is liable to the Bank One Entities.  Tello points to his = testimony=20 that, after he learned the agreement he signed was a lease and not = a sales=20 contract, he returned the vehicle to Randall Reed Ford.  = Tello then=20 asserts that (1) A[t]he motion for = summary=20 judgment and its supporting evidence must show there is no genuine = issue=20 of a material fact and that the movant is entitled to judgment as = a matter=20 of law@; and (2) = A[h]ad the trial court = taken=20 into account appellant=3Ds claim that he = returned the=20 vehicle, the damages would be significantly decreased.@ (citations = omitted). =20 Read liberally, Tello=3Ds brief contains the = argument=20 that, based on his return of the truck three years after signing = the=20 contract and three months before he stopped making payments, the = trial=20 court erred in granting summary judgment on the Bank One=20 Entities=3D contract claim = because their=20 motion and supporting evidence did not show that they are entitled = to=20 judgment as a matter of law for the amount of damages awarded = BB more than $29,000, = before=20 attorney=3Ds fees.  Tello = points to=20 his summary-judgment proof that he returned the vehicle to Randall = Reed=20 Ford in July 2002, and asserts that, if this evidence is true (and = we must=20 presume that it is), then the damages would be significantly=20 decreased. 

The majority reaches = the wrong=20 conclusion C that the Bank One = Entities are=20 entitled to summary judgment on their claim for contract damages=20 C partly because it is = asking=20 (and then answering) the wrong question.  The inquiry is not = whether=20 Tello defeated the Bank One Entities=3D traditional = summary-judgment=20 motion but whether the Bank One Entities, as movants, established = their=20 entitlement to the amount of damages awarded as a matter of law. = The=20 majority erroneously frames the issue as one of Tello failing to = establish=20 an offset when it is actually a failure by the Bank One Entities = to carry=20 their summary-judgment burden C or even to present a = prima=20 facie case to recover the amount of damages awarded under the = lease. =20 Instead of faulting the movants (the Bank One Entities) for = failing to=20 show from their own summary-judgment proof how they arrived at the = amount=20 awarded, the majority criticizes the non-movant (Tello) for = failing to=20 Acite any authority or = evidence=20 to inform us why he was allegedly entitled to offset the = Bank=3Ds damages or = otherwise defeat=20 summary judgment.@[1]  The problem = with the=20 summary judgment is not what Tello failed to do in attacking it, = but what=20 the Bank One Entities failed to do in the first instance to prove = their=20 damages as a matter of law.

Recovery under a = lease=20 agreement is not automatic nor is there a universal measure of = damages for=20 breach.  AThe ultimate goal in = measuring=20 damages for a breach‑of‑contract claim is to provide = just compensation for=20 any loss or damage actually sustained as a result of the=20 breach.@  Mays v. = Pierce,=20 203 S.W.3d 573, 577 (Tex. App.CHouston[14th Dist.] = 2006, pet.=20 filed); Walden v. Affiliated Computer Servs., Inc., 97 = S.W.3d 303,=20 328 (Tex. App.CHouston [14th Dist.] = 2003, pet.=20 denied).  Typically, the measure of damages in a = breach‑of‑contract=20 case is the benefit‑of‑the‑bargain measure, the = purpose of which is to=20 restore the injured party to the economic position it would have = been in=20 had the contract been performed.  Mays, 203 S.W.3d at = 577;=20 SAVA Gumarska in Kemijska Industria D.D. v. Advanced = Polymer=20 Scis., Inc., 128 S.W.3d 304, 317 n.6 (Tex. App.CDallas 2004, no = pet.). =20 Because the movants failed to show what the contract provides as = the=20 measure of their recovery (or to show from the terms of the = contract that=20 the damage calculations would not be impacted by the missing = portions of=20 the contract), the Bank One Entities failed to establish a prima = facie=20 case for the damages awarded, let alone establish their = entitlement to=20 damages as a matter of law.

 This is not a = suit on a=20 sworn account in which the plaintiff=3Ds sworn and unrefuted = assertion=20 of the amount allegedly owed itself will constitute prima facie = evidence=20 of damages; rather, this is a breach-of-contract case in which the = movants=20 are required to prove their entitlement to damages by establishing = the=20 amount of those damages under the terms of the contract.  = See e.g.=20 Park v. Swartz, 110 Tex. 564, 222 S.W. 156 (1920) (holding = that=20 plaintiff Aprima facie = was entitled to as = damages the=20 amount which under the contract he would, presumably, have = earned .=20 . .@)(emphasis added); = Consol.=20 Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894, 900 = (Tex.=20 App.CTyler 2005, no pet.)=20 (determining damages based on Athe amount of money = to which=20 [plaintiff] was entitled as reimbursement pursuant to the=20 agreement@) (emphasis added); = Garza v.=20 Allied Fin. Co., 566 S.W.2d. 57, 62 (Tex. Civ. = App.CCorpus Christi 1978, = no=20 writ)(holding that summary-judgment evidence consisting of = Athe = manager=3Ds affidavit and = copy of the=20 note and security agreement present evidence establishing a = prima=20 facie case in a suit on a promissory note . . .@) (emphasis added); = Hagar v.=20 Texas Distrib., Inc., 560 S.W.2d 773, 775 (Tex. Civ. = App.CTyler 1977, writ=20 ref=3Dd n.r.e.)(holding=20 summary-judgment proof sufficient in promissory note case after = looking to=20 the Aface of the = note@ and determining the = amount=20 that was due thereon).  The Bank One Entities not only failed = to=20 prove the terms of the lease agreement that would entitle them to = the sums=20 awarded, they omitted portions of it that are germane to their = dispute=20 with Tello and the proper calculation of damages flowing from his = alleged=20 failure to perform.  As the movants, the Bank One Entities = had to=20 present evidence to support the damages they sought under the=20 contract.  They failed to satisfy this burden.  It is = simply not=20 possible to tell from the Bank One Entities=3D summary-judgment = proof how=20 much (if any) is owing under the lease.  According to the = Bank One=20 Entities=3D affidavit, the first = payment=20 Tello failed to make under the lease was the payment due in = October 2002,=20 three months after Tello returned the vehicle to Randall Reed = Ford. =20 While Randall Reed Ford is an entity distinct from the Bank One = Entities,=20 the lease agreement contains defined terms which include Randall = Reed Ford=20 and any party to whom the lease is assigned in its definition of=20 Awe,@ Aus,@ and Aour@ as used in the = lease. =20 Furthermore, the lease states at least three times that there are=20 additional terms and conditions on the reverse side of the pages = of the=20 lease, none of which are in our record.  The lease portion = that=20 is in the record unambiguously states that the back of the = lease=20 document contains Aadditional = information on early=20 termination, . . . late and default charges, . . . and any = security=20 interest, if applicable.@[2]  Because our = record does=20 not contain a copy of the reverse sides of these pages, this court = is not=20 aware C and presumably the = trial court=20 was not aware C of all of the terms = of the=20 lease, any one of which could undermine the damage calculation = proffered=20 by the Bank One Entities.  The absence of the contract or = other proof=20 of its terms creates an ambiguity that cannot be resolved by = turning to=20 the summary-judgment proof before this court. 

Because the part of = the lease=20 contained in the record does not address early termination, = default,=20 credits, or what happens if Tello returns the vehicle before = expiration of=20 the lease term, it provides no basis for determining the amounts = owing, if=20 any, under the lease.  The Bank One Entities=3D summary-judgment = affidavit=20 states the following:

!        =20 Tello missed at least six payments starting in October = 2002.

!        =20 After all offsets, payments, and credits were allowed and applied, = the=20 outstanding balance on the lease including principal and interest = was=20 $25,693.46 as of January 14, 2003.

!        =20 Prejudgment interest has been accruing at the rate of six percent = per=20 annum, which equates to $4.22 per day.

However, there is no=20 summary-judgment evidence addressing how credits are applied under = the=20 lease agreement or addressing the effect, if any, of = Tello=3Ds return of the = vehicle in July=20 2002, on Tello=3Ds liability for = various sums=20 allegedly owing under the lease.  The Bank One Entities = asserted that=20 they did not have the vehicle and that Tello had concealed it and = refused=20 to surrender possession of it to them.  Nothing in their=20 summary-judgment evidence shows that the Bank One Entities had = knowledge=20 of the truck=3Ds whereabouts or its = odometer=20 reading.  Therefore, the Bank One Entities have no way of = knowing the=20 amount of mileage on the truck to calculate any applicable mileage = penalty.  Based on the summary-judgment evidence and the = parts of the=20 lease the Bank One Entities did attach to their motion, Tello = would owe=20 only $9,870 (21 monthly payments of $470) plus a $350 return = fee. =20 Nonetheless,  the trial court awarded the Assignee in excess = of=20 $29,000 in actual damages, even though this amount is not = supported by the=20 part of the contract contained in the summary-judgment evidence = and even=20 though the missing parts of the lease (like certain parts of it = that=20 are in the record) may use the term Awe@ or Aus@ for the person to = whom the=20 truck may be returned, which terms would include Randall Reed=20 Ford.  

Though an affidavit = containing=20 a statement of balance due can in some instances suffice to = satisfy a=20 movant=3Ds summary-judgment = burden,=20 when, as in this case, the summary-judgment affidavit itself = creates a=20 fact question that cannot be resolved by turning to the summary- = judgment=20 proof, a material fact issue as to the measure of damages arises = and=20 precludes summary judgment.  General Specialties, Inc. v. = Charter=20 Nat'l Bank‑Houston, 687 S.W.2d 772, 774 (Tex. App. = CHouston [14th Dist.] = 1985, no=20 writ) (ambiguous lump sum figure in suit for collection on note, = that is=20 unexplained by other summary-judgment proof raises fact issue = precluding=20 summary judgment); FFP Mktg. Co., Inc. v. Long Lane Master = Trust=20 IV, 169 S.W.3d 402, 411B12 (Tex. = App.CFort Worth 2005, no=20 pet.).  Because the Bank One Entities did not prove up all of = the=20 terms of the lease on which they sought and obtained summary = judgment,=20 this court has no way of knowing the appropriate amount of damages = for=20 breach of the agreement or whether Tello=3Ds return of the = vehicle=20 affected the calculation of damages under the Bank One=20 Entities=3D contract = claim.  These=20 ambiguities cannot be resolved by turning to their = summary-judgment proof.=20 Thus, on a merits review, the summary-judgment evidence does not = support=20 the amount of damages the Bank One Entities sought and the trial = court=20 awarded.  Therefore, even if Tello had not responded at all, = it would=20 not have been proper to grant summary judgment on the Bank One=20 Entities=3D breach-of-contract=20 claim.

 Moreover, even = if the=20 Bank One Entities had not failed in the first instance, they still = would=20 not be entitled to summary judgment because Tello raised a fact = issue as=20 to the proper amount of damages based on his affidavit = demonstrating he=20 returned the leased vehicle and received no credit for it.  = Summary=20 judgment is not proper because Tello raised a fact issue that had = the Bank=20 One Entities calculated the sums they claim are owing in = accordance with=20 the lease agreement, the amount of damages awarded would have been = less.  In Tello=3Ds words, A[h]ad the trial court = taken=20 into account appellant=3Ds claim that he = returned the=20 vehicle, the damages would be significantly = decreased.@[3] (citations omitted). =

For these reasons, = the Bank One=20 Entities did not prove their entitlement to summary judgment on = their=20 contract claim as a matter of law.  See McCulley Fine Arts = Gallery, Inc. v. AX@ = Partners, 860 S.W.2d 473, 478 = (Tex.=20 App.CEl Paso 1993, no = writ)=20 (reversing summary judgment based on failure to prove contract = claim as a=20 matter of law).  This court should sustain Tello=3Ds sixth issue, = reverse the=20 summary judgment as to the Bank One Entities=3D contract claim = against Tello,=20 sever, and remand for further proceedings.  Because it does = not, I=20 respectfully=20 = dissent.           = ;            =             &= nbsp; =20

 

/s/        Kem=20 Thompson Frost

Justice

 

Judgment rendered and = Majority=20 and Dissenting Opinions filed January 9, 2007.

Panel consists of = Justices=20 Hudson, Frost, and Seymore. (Seymore, J., majority).

 

 


[1]  See majority opinion, at = 11.=20

[2]  Emphasis added.

[3]  Emphasis=20 added.

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FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0018_01C7ADFF.44B33750--