Opinion issued=20
November 1, 2007
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-06-00304-CV
CURTIS =
COLE,=20
Appellant
V.
CRAIG =
CASSEL,=20
Appellee
On =
Appeal from the=20
281st District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2005-36591
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant,=20
Curtis Cole, appeals a take-nothing summary judgment rendered in =
favor of=20
Craig Cassel, appellee, in Cole=E2=80=99s suit for deceptive trade =
practices,=20
breach of contract, common law fraud, real estate fraud, negligent =
misrepresentation, and detrimental reliance resulting from a =
failed real=20
estate contract. ![3DFootnote](3D"")
We conclude that the trial court =
properly=20
rendered summary judgment in favor of Cassel on Cole=E2=80=99s =
deceptive trade=20
practices claim and that Cole waived his other challenges due to=20
inadequate briefing. We affirm the judgment of the trial =
court.
Background
<=
/SPAN>Cassel=20
bought a multi-unit apartment complex at a foreclosure sale on May =
6,=20
2003. That same day, Cassel met Cole, who said that he wanted to =
purchase=20
the property and claimed to have a quitclaim interest in the =
property.=20
After conducting research, Cassel determined that Cole did not =
have any=20
legal interest in the property.
<=
/SPAN>Three=20
days after the initial meeting, Cole and Cassel entered into an =
earnest=20
money contract for the sale of the=20
property for $170,000. Under the terms of the contract, Cole was =
to=20
deposit $1,000 earnest money with America Title and the closing on =
the=20
sale was scheduled for May 30, 2003. The contract stated that if =
Cole=20
failed to deposit the earnest money, he would be in default. The =
contract=20
also stated that Cassel was to pay Cole up to $40,000 for =
Cole=E2=80=99s expenses=20
in making repairs to the property. The repairs were a requirement =
of=20
Cole=E2=80=99s lender. Cole and Cassel entered into a lease =
agreement for one=20
month so that Cole could complete the repairs.
<=
/SPAN>In=20
July of 2003, Cole completed all of the lender-required repairs =
and=20
approached Cassel about closing on the property. Cassel refused to =
close=20
on the property. Cassel asserted that the contract =E2=80=9Chad =
expired=E2=80=9D because=20
they had not closed on May 30, 2003, which was the closing date =
listed in=20
the contract. Cassel then told Cole that he could sign a new =
contract with=20
a purchase price of $200,000.
<=
/SPAN>Cole=20
filed suit against Cassel for deceptive trade practices, breach of =
contract, common law fraud, real estate fraud, negligent=20
misrepresentation, and detrimental reliance. In Cassel=E2=80=99s response, he =
generally denied all of=20
Cole=E2=80=99s claims and pleaded the affirmative defenses of =
statute of frauds,=20
statute of limitations, estoppel, failure of consideration, =
election of=20
remedies, res judicata, and collateral estoppel. Cassel also filed =
a=20
counter-claim against Cole for attorney=E2=80=99s fees pursuant to =
Chapter 38 of=20
the Texas Civil Practice and Remedies Code. After the expiration =
of the=20
time allotted for discovery, Cassel filed a motion for summary =
judgment=20
and a no-evidence motion for summary judgment on all six claims. =
Cole did=20
not respond to the motion. Without specifying the grounds, the =
trial court=20
granted Cassel=E2=80=99s motion for summary judgment.
Deceptive Trade=20
Practices Act Claim
&nbs=
p; On appeal, Cole challenges the evidence =
concerning=20
the deceptive trade practices claim by asserting that there is =
some=20
evidence to establish the elements of the claim.
A. =
No-Evidence=20
Summary Judgment Standard of Review
<=
/SPAN>We=20
review a trial court=E2=80=99s grant of summary judgment de novo. =
Valence=20
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In =
a Rule=20
166a(i) no-evidence summary judgment, the movant represents that =
no=20
evidence exists as to one or more essential elements of the =
non-movant=E2=80=99s=20
claims, upon which the non-movant would have the burden of proof =
at trial.=20
Tex. R. Civ. P. =
166a(i). The=20
non-movant must then =
present evidence=20
raising a genuine issue of material fact on the challenged =
elements.=20
Id. We review a no-evidence summary judgment by construing =
the=20
record in the light most favorable to the non-movant and =
disregarding all=20
contrary evidence and inferences. Patriacca v. Frost, 98 =
S.W.3d=20
303, 306 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, no =
pet.). We must determine whether the =
non-movant produced=20
more than a scintilla of probative evidence to raise a genuine =
issue of=20
material fact. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, =
70=E2=80=9371=20
(Tex. App.=E2=80=94Austin 1998, no pet.).=20
More than a scintilla of evidence exists if the evidence =
=E2=80=9Crises to a level=20
that would enable reasonable and fair-minded people to differ in =
their=20
conclusions.=E2=80=9D King Ranch, Inc. v. Chapman, 118 =
S.W.3d 742, 751=20
(Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, =
953=20
S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than =
create a=20
mere surmise or suspicion of fact, less than a scintilla of =
evidence=20
exists. Id.; Macias v. Fiesta Mart, Inc., 988 S.W.2d =
316,=20
317 (Tex. App.=E2=80=94Houston [1st Dist.] 1999, no pet.).
B. =
No-Evidence=20
Challenge to Proof of Producing Cause
<=
/SPAN>In his petition, Cole states that Cassel =
violated=20
the Deceptive Trade Practices Act (DTPA) by engaging in an =
unconscionable=20
course of action. In order to prevail on a DTPA claim, a plaintiff =
must=20
show: (1) the plaintiff is a consumer, (2) the defendant =
engaged=20
in false, misleading, or deceptive acts, and (3) these acts =
were a=20
producing cause of the consumer plaintiff=E2=80=99s damages. Tex. Bus. & Com. Code =
Ann.=20
=C2=A7 17.50(a) (Vernon Supp. 2006); see also Doe v. Boys =
Clubs of=20
Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. =
1995).
<=
/SPAN>In=20
his motion for summary judgment, Cassel asserts that Cole provided =
no=20
evidence that Cassel was the producing cause of his injury. =
Cole=20
failed to respond with any evidence of his consumer status or =
producing=20
cause in response to the motion for summary judgment as required =
under=20
Rule 166a(i). See Tex. R.=20
Civ. P. 166a(i); King Ranch, Inc., 118 S.W.3d at=20
751. Because Cole failed to establish that =
there is a=20
genuine issue of material fact on the challenged element of =
producing=20
cause, his DTPA claim fails. King Ranch, Inc., 118 S.W.3d =
at=20
751. Accordingly, we =
hold that summary judgment in favor of =
Cassel was=20
proper with respect to Cole=E2=80=99s DTPA claim.Waiver of Appeal
<=
/SPAN>In=20
his remaining appellate challenges, Cole complains of the judgment =
concerning his claims for breach of contract, common law fraud, =
real=20
estate fraud, detrimental reliance, and negligent =
misrepresentation.=20
Texas Rule of Appellate =
Procedure=20
38.1(h) requires that an appellant=E2=80=99s brief =E2=80=9Cmust =
contain a clear and=20
concise argument for the contentions made, with appropriate =
citations to=20
authorities and to the record.=E2=80=9D Tex. R. App. P. 38.1(h). =
=E2=80=9CRule 38=20
requires [a party] to provide us with such discussion of the facts =
and the=20
authorities relied upon as may be requisite to maintain the point =
at=20
issue.=E2=80=9D Morrill v. Cisek, 226 S.W.3d 545, 548 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 2006, no pet.) (internal quotation marks omitted) =
(quoting=20
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 =
S.W.3d=20
118, 128 (Tex. App.=E2=80=94Houston [1st Dist.] 2002, pet. =
denied)). =E2=80=9CThis is not=20
done by merely uttering =
brief=20
conclusory statements, unsupported by legal citations.=E2=80=9D =
Id. =E2=80=9CIssues=20
on appeal are waived if an appellant fails to support his =
contention by=20
citations to appropriate authority or cites only to a single=20
non-controlling case.=E2=80=9D Abdelnour v. Mid Nat=E2=80=99l =
Holdings, Inc., 190=20
S.W.3d 237, 241 (Tex. App.=E2=80=94Houston [1st Dist.] 2006, no =
pet.); Daniel=20
v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2005, no pet.).
<=
/SPAN>In=20
his briefing concerning his claims for breach of contract, common =
law=20
fraud, real estate fraud, detrimental reliance, and negligent=20
misrepresentation, Cole does not make a clear argument or present =
a single=20
citation to a supporting authority or the record. We hold that =
Cole has=20
waived his challenges to the judgment on these issues due to =
inadequate=20
briefing. See Tex. =
R. App.=20
P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d =
628, 646=20
(Tex. App.=E2=80=94Houston [1st Dist.] 2002, no pet.).
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Elsa=20
Alcala
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of =
Chief=20
Justice Radack and Justices Alcala and=20
Bland. |