Texas Judiciary Online - HTML Opinion

From: Subject: Texas Judiciary Online - HTML Opinion Date: Sat, 9 Jun 2007 16:33:37 -0500 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0034_01C7AAB3.EDFD8030" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3028 This is a multi-part message in MIME format. ------=_NextPart_000_0034_01C7AAB3.EDFD8030 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=84385 Texas Judiciary Online - HTML Opinion

Send this document to a=20 colleague

Close=20 This Window

Opinion issued June 7,=20 2007

In The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-05-00906-CV

RODGER = PETERS, JR.,=20 Appellant

NORWEGIAN CRUISE=20 LINE LIMITED D/B/A NORWEGIAN CRUISE LINE, = Appellee

On = Appeal from the=20 270th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2000-39257-A

MEMORANDUM = OPINION = Appellant, Rodger=20 Peters Jr.,^{=20
(1)} appeals from a summary judgment in favor of = appellee,=20 Norwegian Cruise Line Limited ("Norwegian"). Peters filed suit = against=20 Norwegian, alleging causes of action for negligent = misrepresentation,=20 fraud, fraudulent inducement, violations of the Deceptive Trade=20 Practices-Consumer Protection Act ("DTPA"),^{=20
(2)} breach of contract, unjust enrichment, and = violations of=20 chapter 121 of the Human Resources Code ("Chapter 121")^{=20
(3)} in connection with cruises that he took on two of=20 Norwegian's ships. In his first two issues, Peters contends that = the trial=20 court erred by granting summary judgment because Norwegian's = no-evidence=20 motion did not adequately identify the challenged elements, and he = presented evidence that raised an issue of fact on those elements = that=20 were properly challenged. In his remaining five issues, Peters = asserts=20 that he presented evidence to raise an issue of fact on each of = the=20 elements in each of the claims challenged in Norwegian's = traditional=20 summary judgment motion. We conclude that the trial court = improperly=20 granted summary judgment on Peters's claims for negligent=20 misrepresentation, fraud, fraudulent inducement, DTPA, breach of = contract=20 and unjust enrichment, as well as Peters's Chapter 121 claims = based on=20 Norwegian charging Peters more for a room than = non-mobility-impaired=20 passengers. We further conclude that the trial court properly = granted=20 summary judgment on Peters's Chapter 121 claims based on the = accessibility=20 of Norwegian's ships. We, therefore, affirm in part, reverse in = part and=20 remand the cause.Background Due to an untreatable = genetic=20 condition, Peters required a wheelchair for mobility. In 1998, = Peters=20 decided to take a cruise on Norwegian's ship Norwegian = Star ("the=20 Star") after he saw a poster for a "Texaribbean Cruise" = in the=20 window of a travel agency. On at least 15 different occasions, = Peters=20 spoke with a travel agent, Camille Jones, regarding the = accessibility of=20 the Star for physically disabled people. Jones would try = to get=20 answers from Norwegian for Peters's specific questions and then = she would=20 pass the information to Peters. Peters testified that Jones told = him that=20 the elevators were "large enough for the wheelchairs to get in." = According=20 to Peters, Jones informed him that "she was unsure" if the ship = had public=20 restrooms that could accommodate his wheelchair, but that his = bedroom=20 would have a restroom that he could use. Peters also asked about = the=20 accessibility of the ports of call and was told "all three of them = were=20 accessible." Peters said that Jones specifically told him that he = would be=20 able to go on a glass-bottom boat in Cozumel. Peters also read a = Norwegian=20 brochure concerning the cruise that led him to believe that many = of the=20 shore excursions were accessible.

Peters=20 eventually purchased tickets for himself and three friends to take = the=20 cruise on the Star. After he had purchased the tickets, = Peters=20 was notified by Norwegian of certain requirements Norwegian had = for=20 disabled passengers. Peters was notified he should travel in the = same=20 cabin with a non-mobility-impaired companion who could "provide = assistance=20 in the unlikely event of an emergency." Peters was also required = to=20 provide a letter from his doctor stating that he was "fit to = travel."=20 Finally, Peters was required to sign a release, releasing = Norwegian and=20 its medical staff of all liability.

When Peters=20 took the cruise on the Star, the ship was not fully able = to=20 accommodate his wheelchair. Although Jones had told Peters that = the=20 elevators were "large enough for the wheelchairs to get in," = Peters could=20 not get his wheelchair into the only elevator that could access = the tenth=20 deck, which resulted in his inability to dine at the restaurant on = that=20 deck or take part in any of the activities there, and he had to = turn his=20 wheelchair sideways to get into two other elevators. Peters could = not=20 access the public restroom facilities and had to go to his room to = access=20 a restroom, but that was consistent with what Jones had told him. = Peters=20 also had other problems with access on the Star. Peters = could not=20 get to the sick bay because the only elevator to it had a six-inch = step=20 and was too small for his wheelchair. Additionally, the sauna and = swimming=20 pool were inaccessible to Peters due to the lip around the sauna = and the=20 absence of a lift for the pool.

The ports=20 of call visited by the Star were not fully accessible to = Peters,=20 unlike what Jones had told him. Although Jones had said all the = ports of=20 call were accessible, Peters was unable to go ashore in Roatan, = Honduras=20 because the dock had steps and the gangplank from the ship was too = narrow=20 for his wheelchair. Two men offered to carry Peters and the = wheelchair off=20 the ship, but Peters did not feel safe with them carrying him.=20 Additionally, Peters was unable to take the glass-bottom boat = excursion in=20 Cozumel, unlike what Jones had specifically told him. Peters = explained=20 that he was unable to go on the glass-bottom boat because the bus = that=20 served as the only transportation from the ship to the boat was = not=20 accessible to people in wheelchairs. Although he acknowledged that = he=20 could have paid a different bus driver to pick him up to take him = to the=20 boat, Peters said he learned that the size of the boat made it=20 inaccessible to wheelchairs.

Despite=20 these problems, Peters decided to take another Texaribbean Cruise = in=20 September 2000, this time on the Norwegian Sea ("the=20 Sea"). Peters asked his new travel agent about = accessibility on=20 the Sea and was informed that "a lot of the accessibility = issues=20 had been taken care of." Despite this assurance, Peters had = accessibility=20 problems on the Sea. His room was too small, and he could = only=20 access it after employees of the ship removed some of the = furniture from=20 the room. The dining table was too low for him, but he = acknowledges that=20 he did not ask for assistance in having the table adjusted. One of = the=20 lounges had no seating for wheelchairs and Peters had to sit apart = from=20 his friends, in an aisle, where he felt like he was in the way and = was=20 bumped once by someone. Peters did not ask to be moved from that = location,=20 however. Peters could not access the computers in the internet = caf=E9=20 because the tables were too close together, but he was able to = send an=20 email from the internet caf=E9 with the assistance of an employee. = Like on=20 the Star, the public restrooms on the Sea were = not=20 accessible to Peters. Also like on the Star, Peters could = not=20 access the tenth deck due to the size of the elevator, which = denied him=20 access to the restaurant there and a tour of the navigation = bridge. Of the=20 three ports of call for the Sea, Peters was only able to = go=20 ashore in one of them, Cozumel. In Cancun, he was not allowed on = the=20 tender that provided transport to the shore, because, he was told, = it was=20 too dangerous to take his electric wheelchair aboard the tender. = Peters=20 also did not go ashore in Roatan because the ramp was again too = narrow.=20

This suit=20 was originally filed by three other plaintiffs in August 2000. In=20 September 2001, Peters and another plaintiff joined the suit when = the=20 plaintiffs filed their Third Amended Petition. Norwegian filed a = motion=20 for summary judgment in July 2005, requesting summary judgment on = all=20 claims asserted by all plaintiffs. Days after Norwegian filed its = motion=20 for summary judgment, all the plaintiffs except Peters nonsuited = their=20 claims against Norwegian. Peters filed a response to Norwegian's = motion=20 and Norwegian filed a reply to that response. On August 16, 2005, = the=20 trial court signed an order granting Norwegian's motion for = summary=20 judgment without stating the grounds upon which it relied. Because = some of=20 the other plaintiffs still had unresolved claims pending against = another=20 defendant, the trial court later severed Peters's claims against=20 Norwegian, making the summary judgment final and = appealable.

Summary=20 Judgment Standard of Review

We review=20 summary judgments de novo. Valence Operating Co. v. = Dorsett, 164=20 S.W.3d 656, 661 (Tex. 2005). When, as here, a summary judgment = does not=20 specify the grounds on which it was granted, we will affirm the = judgment=20 if any one of the theories advanced in the motion is meritorious. = Joe=20 v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. = 2004).=20 However, a court errs by granting summary judgment on grounds that = were=20 not presented in the motion. Johnson v. Brewer & = Pritchard,=20 P.C., 73 S.W.3d 193, 204 (Tex. 2002) (citing Sci. = Spectrum, Inc.=20 v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997)).

Traditional=20 summary judgment is proper only when the movant establishes that = there is=20 no genuine issue of material fact and that the movant is entitled = to=20 judgment as a matter of law. Tex. R. Civ. P. 166a(c). The motion = must=20 state the specific grounds relied upon for summary judgment. = Id.=20 A defendant moving for traditional summary judgment must = conclusively=20 negate at least one essential element of each of the plaintiff's = causes of=20 action or conclusively establish each element of an affirmative = defense.=20 Sci. Spectrum, Inc., 941 S.W.2d at 911. In reviewing a=20 traditional summary judgment, we must indulge every reasonable = inference=20 in favor of the nonmovant, take all evidence favorable to the = nonmovant as=20 true, and resolve any doubts in favor of the nonmovant. = Valence=20 Operating Co., 164 S.W.3d at 661.

In a=20 no-evidence motion for summary judgment, after adequate time for=20 discovery, a party may move for summary judgment on the ground = that there=20 is no evidence of one or more essential elements of a claim or = defense on=20 which the opposing party has the burden of proof. Tex. R. Civ. P. = 166a(i).=20 The movant's no-evidence motion for summary judgment must = specifically=20 state the elements it challenges on the grounds of no evidence.=20 Id.; Malcomson Rd. Util. Dist. v. Newsom, 171 = S.W.3d=20 257, 262 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). The = trial=20 court must grant the motion unless the nonmovant produces summary = judgment=20 evidence raising a genuine issue of material fact. Tex. R. Civ. P. = 166a(i). We review a no-evidence summary judgment by construing = the record=20 in the light most favorable to the nonmovant and disregarding all = contrary=20 evidence and inferences. Patriacca v. Frost, 98 S.W.3d = 303, 306=20 (Tex. App.--Houston [1st Dist.] 2003, no pet.). A trial court = improperly=20 renders a no-evidence summary judgment if the nonmovant presents = more than=20 a scintilla of probative evidence to raise a genuine issue of = material=20 fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d = 419, 423=20 (Tex. App.--Houston [1st Dist.] 2000, no pet.). More than a = scintilla of=20 evidence exists when the evidence "would allow reasonable and = fair-minded=20 people to differ in their conclusions." Forbes Inc. v. Granada = Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). =

Negligent=20 Misrepresentation, Fraud, and Fraudulent = Inducement

Norwegian=20 filed a traditional and no-evidence motion for summary judgment on = Peters's claims for negligent misrepresentation, fraud, and = fraudulent=20 inducement. Peters challenges the trial court's = grant of=20 Norwegian's motions on these claims.

A.=20 No-Evidence Motion for Summary Judgment

In his=20 first and second issues, Peters contends that the no-evidence = motion for=20 summary judgment failed to properly identify the challenged = elements and=20 that he presented evidence sufficient to raise a question of fact = on those=20 elements that were challenged.

1.=20 Elements Challenged in the No-Evidence Motion

The parties=20 do not dispute that the only challenge asserted by Norwegian was = the=20 "false representation" element of the negligent misrepresentation, = fraud,=20 and fraudulent inducement claims.^{=20
(4)} The parties, however, dispute whether the = no-evidence=20 challenge that was limited to the element of "false = representation," was=20 further limited to the sole event with the glass-bottom boat, as = Peters=20 contends, or whether the challenge related to the entire element = of "false=20 representation," as Norwegian asserts. Peters contends that = because the=20 motion for summary judgment specifically mentioned the sole event = of the=20 glass-bottom boat, the no-evidence motion challenged only the = evidence=20 pertaining to the claim that the glass-bottom boat was not = accessible, and=20 not any other allegedly false representation. To support his = position,=20 Peters cites to Hamlett, which states, "When it is not = readily=20 apparent to the trial court that summary judgment is sought under = rule=20 166a(i), the appellate court will presume that the motion is filed = under=20 the traditional summary judgment rule and analyze it accordingly." = Hamlett v. Holcomb, 69 S.W.3d 816, 819 (Tex. App.--Corpus = Christi=20 2002, no pet.) However, after Hamlett, the Texas Supreme = Court=20 stated, "We disapprove of decisions that hold or imply that, if a = party=20 attaches evidence to a motion for summary judgment, any request = for=20 summary judgment under Rule 166a(i) will be disregarded." = Binur v.=20 Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Rather, the Supreme = Court of=20 Texas held that "[i]f a motion clearly sets forth its grounds and=20 otherwise meets Rule 166a's requirements, it is sufficient." = Id.=20

We conclude=20 that the no-evidence motion concerning the element of "false=20 representation" was not limited to the event with the glass-bottom = boat.=20 See Tex. R. Civ. P. 166a(i); Cmty. Initiatives, Inc. = v Chase=20 Bank of Tex., 153 S.W.3d 270, 279 (Tex. App.--El Paso 2004, = no pet.)=20 (stating that no-evidence movant need not attack specific = evidentiary=20 components that make up element of claim). The parties do not = dispute that=20 Norwegian's motion asserts there is no evidence of the false=20 representation element with respect to Peters's claims for = negligent=20 misrepresentation, fraud, and fraudulent inducement. We hold that = the=20 element of false representation was challenged in the no-evidence = motion=20 and that any evidence pertinent to that element could be properly=20 considered. We overrule Peters's first issue as it pertains to the = false=20 representation element of his negligent misrepresentation, fraud, = and=20 fraudulent inducement claims.

2.=20 Evidence of "False Representation" Presented by = Peters

In his=20 second issue, Peters asserts that the trial court erred by = granting=20 summary judgment on his negligent misrepresentation, fraud, and = fraudulent=20 inducement claims because he produced more than a scintilla of = evidence on=20 the element of "false representation." On appeal, as in his = response to=20 Norwegian's no-evidence motion for summary judgment, Peters = contends that=20 he presented evidence of Norwegian's false representation that the = Star was accessible to people using wheelchairs and that = all=20 three ports of call "were accessible." Viewing the evidence in a = light=20 most favorable to Peters, the evidence shows that Jones^{=20
(5)} told him that the Star was accessible to = him and=20 his wheelchair.^{=20
(6)} Although Jones had informed Peters that all of the = ports=20 were accessible, Peters was unable to go ashore in Roatan, because = the=20 dock had steps and the gangplank from the ship was too narrow for = his=20 wheelchair. Norwegian responds that two men offered to carry = Peters and=20 the wheelchair off the ship, and that it was physically possible = for him=20 to leave the ship at the port in Roatan. We are required, however, = to view=20 the evidence in a light most favorable to Peters, who testified = that he=20 did not feel it was safe for the men to carry him down the narrow=20 gangplank of the ship. We also note that Peters presented other = evidence=20 that the only elevator able to access the tenth deck was too small = for his=20 wheelchair and thus the restaurant and events on the tenth deck = were=20 inaccessible. In addition, Peters could not access the sauna, = pools, and=20 sick bay. Viewing the evidence in a light most favorable to = Peters, the=20 evidence shows that Jones, who was relaying information given to = her by=20 Norwegian, made false statements concerning the accessibility of = the ship=20 and ports.

Peters=20 produced some evidence that he was not able to go ashore in all = the ports=20 and that the public restrooms, swimming pool, the entire tenth = deck, as=20 well as other facilities, were not accessible. We conclude that = the=20 evidence "would allow reasonable and fair-minded people to differ = in their=20 conclusions" regarding whether Norwegian made false = representations to=20 Peters regarding the accessibility of the Star. See = John v.=20 Marshall Health Servs., Inc., 91 S.W.3d 446, 450 (Tex.=20 App.--Texarkana 2002, pet. denied) (finding some evidence of false = representation where plaintiff testified that "he was given = positive=20 assurances about each of his concerns" and that these assurances = were=20 false). Having determined that there is an issue of fact = concerning=20 statements related to Peters about the Norwegian cruise, we do not = reach=20 his other assertions that false statements were made to him about = the=20 glass-bottom boat, the accessibility of the ports on his = Sea=20 cruise, and the accessibility of the Sea as compared to = the=20 Star. Because Peters presented some evidence in response = to the=20 no-evidence challenge on the element concerning false statement, = we=20 conclude that the trial court erred by rendering the no-evidence = motion=20 for summary judgment in favor of Norwegian. We sustain Peters's = second=20 issue as it relates to his negligent misrepresentation, fraud, and = fraudulent inducement claims.

B.=20 Traditional Motion for Summary Judgment

In his=20 third and fourth issues, Peters contends that the trial court = erred by=20 granting traditional summary judgment on his fraud, fraudulent = inducement,=20 and negligent misrepresentation claims because Norwegian did not=20 conclusively establish that there is no genuine issue of material = fact=20 regarding one or more of the elements of the claims. The only = elements=20 discussed by Norwegian in the motion for summary judgment, other = than the=20 no-evidence point regarding false representations, are the = elements of=20 reliance and injury, which are common to these causes of=20 action.

1.=20 Reliance

On appeal,=20 as in its motion for summary judgment, Norwegian = contends=20 that Peters did not rely on the statements about the cruises in = making his=20 decision to go on the cruises. Norwegian points to Jones's = deposition=20 testimony that Peters received the brochure with information on = the=20 glass-bottom boat excursion after he purchased his tickets. = However,=20 Jones's testimony was that the brochure "might have been" in the = packet=20 that Norwegian sent after the tickets were purchased. Jones's = testimony=20 does not conclusively show that the brochure was not used by = Peters in his=20 decision to take the cruise.

Norwegian=20 further contends that because Peters conceded that he would take = another=20 cruise on either the Sea or the Star, he cannot = show=20 that he relied on the statements about the cruises. However, = Peters's=20 statement--made after he had filed suit for the cruises on the=20 Sea and the Star--does not conclusively negate = Peters's=20 reliance on past representations by Norwegian. Peters was = concerned with=20 accessibility onboard the ships and his ability to go ashore. = Before=20 purchasing his tickets, he repeatedly asked questions relating to = those=20 concerns. Only after he had received answers assuring him of his = ability=20 to access the ships and go ashore did he purchase = tickets.

Norwegian=20 further asserts that Peters acknowledged that the travel agent = never made=20 any assurances about transportation to the on-shore excursions and = was=20 warned by Norwegian that he might need individual transportation. = Although=20 Norwegian challenges the evidence relating to the on-shore = excursions, it=20 has not challenged the other false statements that Peters contends = were=20 made when he purchased the tickets. Peters asserts that he = specifically=20 asked his travel agents regarding accessibility before he = purchased either=20 cruise, which indicates that he was concerned about that issue in = making=20 his decision to go on the cruises. Jones, one of Peters's travel = agents,=20 testified that going to the ports was "part of what [Peters] was = looking=20 forward to," and that the ports and the shore excursions were also = a vital=20 part of purchasing the cruise. Jones acknowledged that she = understood that=20 accessibility was of particular concern to Peters. Peters also = produced=20 the deposition testimony of Ursula Schleider, the Director of = Marketing=20 Communications for Norwegian. Schleider testified, "When we market = the=20 product, we speak about what the ship is and where that ship = sails, I=20 think that is--what encourages a person to purchase or not = purchase the=20 cruise . . . is on the ship and where it sails to." She also = testified=20 that "it's the destination that sells the cruise," and that = "[g]oing=20 ashore would be important." Arturo Guerrero, the Vice-President of = Hotel=20 Operations for Norwegian, also testified that the ability to visit = the=20 ports of call on a cruise was an important part of the decision to = purchase a ticket.

Viewing the=20 evidence in a light most favorable to Peters, see = Patriacca, 98=20 S.W.3d at 306, some evidence shows that Peters relied on the false = representations concerning the accessibility of the ships. We = conclude=20 that summary judgment on the element of reliance was improper.=20 See Forbes Inc., 124 S.W.3d at 172; Valence=20 Operating Co., 164 S.W.3d at 661.

2.=20 Injury

Norwegian=20 asserts in its motion for summary judgment that because Peters was = not=20 "required to pay money for on shore excursions that [he] could not = participate in," he suffered no economic injury. Although = Norwegian=20 correctly notes that Peters did not pay for excursions he did not=20 participate in, those damages are not claimed by Peters. Peters = claims=20 damages for the purchase price of the tickets^{=20
(7)} and his lost vacation time he used to take the = cruises. In=20 addition to the false statements about the excursions, Peters also = asserts=20 that he was damaged by relying on other allegedly false = representations=20 about the accessibility of the ships. Norwegian did not address = these=20 other allegedly false representations in its motion for summary = judgment.=20 We conclude that Norwegian did not conclusively negate the injury = element=20 of Peters's claims. See Johnson, 73 S.W.3d at 204 = (holding trial=20 court could not have granted summary judgment on grounds not = raised).=20 Because we conclude that Norwegian failed to conclusively negate = the=20 elements of reliance and injury, summary judgment was improper on = Peters's=20 claims for negligent misrepresentation, fraud, and fraudulent = inducement.=20 See Martinez, 941 S.W.2d at 911. We sustain = Peters's=20 third and fourth issues.

DTPA

As=20 part of his first issue, Peters contends that Norwegian's = no-evidence=20 motion on his DTPA claims is limited to whether there is no = evidence that=20 Norwegian engaged in false, misleading or deceptive acts.^{=20
(8)} Specifically, Norwegian moved for no-evidence = summary=20 judgment on the grounds that there was "no evidence that = [Norwegian] made=20 false representations about the cruises within the scope of=20 =A7 17.46(b)(5)^{=20
(9)} and (b)(7),"^{=20
(10)} and that there was no evidence that Norwegian = "intended to=20 induce disabled persons into buying tickets or that plaintiffs = would not=20 have taken their cruises had additional detail been included" with = respect=20 to the section 17.46(b)(24) claim.^{=20
(11)} Norwegian agrees that these are the elements that = it=20 challenged in its no-evidence motion for summary judgment. = Because = the parties=20 agree that the no-evidence motion only challenged these elements, = we=20 sustain Peters's first issue as it relates to his DTPA = claims.

As part of=20 his second issue, Peters contends that the trial court erred by = granting=20 the no-evidence motion for summary judgment on his DTPA claims = that rely=20 on the same representations alleged for his negligent = misrepresentation,=20 fraud, and fraudulent inducement claims. As discussed above, = Peters=20 testified that he was told that the Star and the ports = that it=20 visited were accessible, but he was not able to access the entire = ship or=20 all the ports. Viewing Peters's testimony in a light most = favorable to=20 Peters, we conclude that a fact issue exists as to whether = Norwegian made=20 representations that fall within the scope of sections 17.46(b)(5) = and=20 (7). See John, 91 S.W.3d at 450.

With=20 respect to the failure to disclose under section 17.46(b)(24), = Norwegian=20 points to its brochure that had a disclaimer about shore = excursions and it=20 asserts that it did not provide "highly specific information about = the=20 on-shore excursions and the accessibility of certain features on = the=20 ships." Although the brochure may have included a disclaimer, = Norwegian=20 fails to address the other grounds for the DTPA claim that are = premised on=20 the representations made by Jones concerning the accessibility of = the=20 ships and the ports. Peters produced evidence that there was = limited=20 accessibility of the facilities on board the Star, that = he was=20 unable to go ashore in three of the ports that were visited on the = two=20 cruises, and that in deciding to go on the cruises, he relied upon = the=20 information he received regarding accessibility, particularly as = conveyed=20 to him by Jones. Viewing the evidence in a light favorable to = Peters, some=20 evidence shows that Norwegian failed to fully disclose information = to=20 Peters that was intended to induce Peters into purchasing tickets = for the=20 cruises. See SAS & Assocs., Inc. v. Home Mktg. Servicing,=20 Inc., 168 S.W.3d 296, 302 (Tex. App.--Dallas 2005, pet. = denied)=20 (finding some evidence of misrepresentation by failure to disclose = where=20 defendant knew of problems with premises but did not disclose = problems).=20 Thus, even = if=20 Norwegian is correct in its assertion regarding the shore = excursion=20 brochure, summary judgment was not proper on Peters's = failure-to-disclose=20 DTPA claim because Norwegian did not conclusively negate this = element of=20 Peters's claim.

We conclude=20 that the trial court erred by rendering the no-evidence motion in = favor of=20 Norwegian because Peters presented some evidence on the challenged = elements. We sustain this portion of Peters's second issue. = Because the=20 traditional motion for summary judgment asserted by Peters also = concerns=20 the same representations discussed above concerning the DTPA = claims, we=20 also sustain his fifth issue that challenges the trial court's = rendition=20 of traditional summary judgment on the DTPA claims.=20

Breach of=20 Contract Concerning Peters's first issue that challenges = the=20 no-evidence motion for summary judgment for the breach of contract = claim,=20 on appeal the parties agree that the only element challenged is = the=20 element of breach. We therefore sustain Peters's first issue as it = relates=20 to his breach of contract claim.

In his=20 second issue, Peters contends that summary judgment was improper = on the=20 element of breach of contract because he was not taken to the = ports of=20 call, as promised in the contract.^{=20
(12)} Peters points to evidence that he was unable to go = ashore=20 in Roatan on both cruises and in Cancun on his cruise on the = Sea,=20 in contravention of what was promised in the contract. As proof = that=20 Norwegian was bound to take him to various ports during his two = cruises,=20 Peters identifies the portion of paragraph one of the contract = that=20 states, "All the terms and provisions of all sides of this = Contract . . .=20 are a part of this Contract." Peters contends that this = incorporated the=20 itinerary of the portion of the form describing the various ports = and that=20 Norwegian therefore had promised to take him to those ports when = it=20 promised to provide "transportation as specified herein." =

In response=20 to Peters's claim that Norwegian failed to take him to ports of = call,=20 Norwegian points to paragraph 27 of the contract which provides, = in=20 part,

Handicapped=20 persons are advised that certain international safety requirements = and=20 U.S. Coast Guard Regulations may cause difficulty for = mobility-impaired=20 persons or persons with severely impaired sight and/or hearing. . = . .=20 [Norwegian] reserves the right to refuse or deny participation in = any=20 activities or programs either aboard the vessel or onshore at any = port of=20 call, which are sponsored or promoted by [Norwegian] to any = passenger who=20 has, in the sole judgment of [Norwegian], past or present medical=20 conditions that may present risks in such activity and programs,=20 including, but not limited to participation in Dive-in, Sail-on = and=20 Water-Bike programs on or off the vessel.

Peters=20 challenges the applicability of paragraph 27 by asserting that = leaving the=20 ship is not a "risky" activity; it is a necessary activity because = all=20 people who enter a cruise ship must at some point disembark. = Peters also=20 contends that the only reason that leaving the ship may have been = risky to=20 Peters was due to Norwegian's "providing inferior and unsafe ramps = and=20 tenders for disembarkation."

We conclude=20 that the sentence in paragraph 27 that warns that = mobility-impaired=20 persons may have difficulty on the cruise is not pertinent to = whether the=20 agreement was breached here because Peters is not complaining that = something was difficult, he is asserting that he was not provided = a visit=20 to the ports, as promised. We also conclude that the agreement, = which=20 allows Norwegian "to refuse or deny participation in any = activities or=20 programs" that in its "sole judgment . . . may present risks in = such=20 activity and programs" does not conclusively establish that the = agreement=20 was not breached by the failure to allow Peters to visit the ports = of=20 call. Peters presented evidence that Norwegian represented to him = that=20 someone with his limited mobility would have available the ship, = ports,=20 and shore excursions, and therefore, there is an issue of fact = whether in=20 the sole judgment of Norwegian, disembarking at the ports was a = risky=20 activity that is not allowed for someone who is mobility impaired. = We=20 conclude that Peters has produced some evidence that Norwegian = breached=20 the contract by failing to give Peters access to the ports of = call.=20 See See SAS & Assocs., Inc., 168 S.W.3d at = 302.=20 Therefore, the no-evidence summary judgment on the = element of=20 breach of contract was improper.^{=20
(13)} We sustain Peters's second issue with respect to = his breach=20 of contract claim. Having held that there is an issue of fact on = the=20 no-evidence motion for summary judgment on the breach of contract = claim,=20 we also conclude that the trial court erred by granting the = traditional=20 summary judgment that is premised on the same grounds. We = therefore=20 sustain Peters's sixth issue concerning the breach of contract = claim.=20

Unjust=20 Enrichment

In his=20 sixth issue, Peters also challenges the trial court's traditional = summary=20 judgment on his unjust enrichment claim.^{=20
(14)} Norwegian moved for summary judgment on the unjust=20 enrichment claim by asserting that Peters could not prevail on the = unjust=20 enrichment claim because there was a contract between the = parties.^{=20
(15)}=20

Peters=20 responded in the trial court, as in this appeal, that he produced = some=20 evidence that the contract was a contract of adhesion and was=20 unconscionable, and, thus, his unjust enrichment claim was a = viable=20 alternative to his breach of contract claim.

An adhesion=20 contract is a "standardized contract form for consumer goods and = services=20 that are offered on a 'take it or leave it' basis without = affording the=20 consumer a realistic opportunity to bargain and under such = conditions that=20 the consumer cannot obtain the desired product or services except = by=20 acquiescing." In re Media Arts Group, Inc., 116 S.W.3d = 900, 911=20 n.19 (Tex. App.--Houston [14th Dist.] 2003, orig. proceeding) = (emphasis=20 deleted) (quoting In re H.E. Butt Grocery Co., 17 S.W.3d = 360, 371=20 n.8 (Tex. App.--Houston [14th Dist.] 2000, orig. proceeding)). An = adhesion=20 contract may be void if it is also unconscionable. Id. at = 910=20 (citing In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, = 574=20 (Tex. 1999) (orig. proceeding)). A contract may be found = unconscionable if=20 it contains "not only one-sided terms, but whether, given the = parties'=20 general commercial background and the commercial needs of the = particular=20 trade or case, the terms are so one-sided that they are = unconscionable=20 under the circumstances existing when the parties made the = contract."=20 Id. at 912.

About two=20 days before the cruise was set to depart, and after Peters had = paid for=20 the cruise in full, he was presented with a form contract that = recited=20 that it was binding whether or not signed by Peters. The form = contract=20 said that "[t]he fare includes only the transportation as = specified=20 herein, full board, ordinary ship's food." The remainder of the = contract,=20 paragraphs two through 28, serve to limit Norwegian's liability or = to=20 impose further conditions and restrictions upon the passenger. For = example, paragraph 12 provides that in the event of the = passenger's death,=20 the passenger's heirs or representatives are limited to a recovery = of=20 $5,000, even if Norwegian is liable for the death. Paragraph two = states=20 that Norwegian

reserves=20 the right to cancel any scheduled call at any port for any reason = at its=20 option at any time whether before, during or after sailing of the = vessel,=20 without previous notice to the passenger, and without any = liability to the=20 passenger, for any loss, damage or delay whatsoever, however=20 consequential.

Paragraph=20 25 allows Norwegian to "increase fares without prior notice," = requiring=20 the passenger either to accept the increased fair or cancel = without=20 penalty, as long as that is done one month before departure, which = would=20 have been impossible here since Peters only received the agreement = a few=20 days before the ship departed. Paragraph 28 purports to limit all = suits=20 against Norwegian to Dade County Florida, although the cruises = taken by=20 Peters did not depart from, return to, or have any other = connection to=20 Florida. Viewing the evidence in a light most favorable to Peters, = the=20 nonmovant, the evidence shows that Norwegian gave Peters a = one-sided form=20 contract that Peters had no opportunity to negotiate mere days = before his=20 cruise began. We conclude that there was a fact issue whether the = contract=20 was a contract of adhesion and unconscionable and, therefore,=20 unenforceable. See Carnival Cruise Lines, Inc. v. = Shute,=20 499 U.S. 585, 593, 111 S. Ct. 1522, 1527 (1991) ("Common = sense=20 dictates that a ticket of this kind will be a form contract the = terms of=20 which are not subject to negotiation, and that an individual = purchasing=20 the ticket will not have bargaining parity with the cruise = line.").=20 Because Peters has produced evidence to show that there was no = enforceable=20 contract between the parties, Norwegian was not entitled to = summary=20 judgment on Peters's unjust enrichment claim. We sustain Peters's = sixth=20 issue concerning the unjust enrichment claim.

Chapter=20 121 Peters's claims under Chapter 121 can be separated = into two=20 types. First, Peters alleges that Norwegian violated Chapter 121 = because=20 it treated disabled passengers differently than other passengers. = Peters=20 also contends that he was discriminated against because Norwegian = failed=20 to comply with the Texas Architectural Barriers Act^{=20
(16)} ("TABA") and the Texas Accessibility Standards^{=20
(17)} ("TAS").

Chapter 121=20 prohibits discrimination against persons with disabilities. = Specifically,=20 section 121.003 provides:

(a) Persons=20 with disabilities have the same right as the able-bodied to the = full use=20 and enjoyment of any public facility in the state.

(b) No=20 common carrier, airplane, railroad train, motor bus, streetcar, = boat, or=20 other public conveyance or mode of transportation operating within = the=20 state may refuse to accept as a passenger a person with a = disability=20 solely because of the person's disability, nor may a person with a = disability be required to pay an additional fare because of his or = her use=20 of an assistance animal, wheelchair, crutches, or other device = used to=20 assist a person with a disability in travel.

. = . .=20 .

(d) The=20 discrimination prohibited by this section includes a refusal to = allow a=20 person with a disability to use or be admitted to any public = facility, a=20 ruse or subterfuge calculated to prevent or discourage a person = with a=20 disability from using or being admitted to a public facility . .=20 .

Tex. Hum.=20 Res. Code Ann. =A7 121.003 (Vernon 2001).

A. = No-Evidence Motion Pertaining to Whether Peters Was Charged=20 More

Peters's=20 first issue asserts that Norwegian did not move for no-evidence = summary=20 judgment on his Chapter 121 claims except for specified elements.=20 Norwegian's motion for summary judgment states, "Plaintiffs Have = No=20 Evidence That [Norwegian] Charged Them More Than Non-Disabled = Passengers."=20 We conclude that Norwegian moved for summary judgment on the = ground that=20 there was no evidence that Norwegian required Peters "to pay an = additional=20 fare because of his . . . use of [a] wheelchair . . . ." = Tex.=20 Hum. Res. Code Ann. =A7 121.003(b) (Vernon 2001). We sustain = Peters's first=20 issue as it relates to his Chapter 121 claims.^{=20
(18)}

As part of=20 his second issue, Peter contends that Norwegian's no-evidence = summary=20 judgment was not properly granted because he raised a fact issue = regarding=20 his Chapter 121 claims. In support of his claim that he was = charged more=20 than a non-mobility-impaired passenger, Peters points to a = brochure=20 published by Norwegian detailing its Carribean and Bermuda cruises = that=20 states, "The handicapped rooms are slightly more expensive than = other=20 inside staterooms because they are considerably larger, but less = expensive=20 than the least expensive outside stateroom (i.e, room with a = view)."=20 Norwegian responds that the brochure plainly states that it does = not=20 charge "any additional premiums to disabled passengers." =

We conclude=20 that Peters produced some evidence that he was charged more than a = non-mobility-impaired passenger, in violation of Chapter 121, = which=20 disallows Norwegian from requiring Peters "to pay an additional = fare=20 because of his . . . use of [a] wheelchair . . . ." Tex. Hum. Res. = Code=20 Ann. =A7 121.003(b). Viewing the evidence in a light most = favorable to=20 Peters, the non movant, the evidence shows that he needed a larger = room to=20 accommodate his wheelchair and that Norwegian charged more for = that room.=20 See, e.g., Indep. Living Res. v. Or. Arena=20 Corp., 982 F. Supp. 698, 717-18 (D. Or. 1997) (holding that = although=20 wheelchair seating takes more space than conventional seating, = operator of=20 arena was prohibited from charging "higher price commensurate with = the=20 additional space that is consumed.").^{=20
(19)} Under the = policy of=20 Chapter 121, like the ADA, disabled individuals are given the = right to=20 full enjoyment of public facilities.^{=20
(20)} Peters's evidence that he was charged more for his = room=20 that was larger only to accommodate his wheelchair is some = evidence that=20 he was charged more due to his disability. See id. We = sustain=20 Peters's second issue as it relates to his Chapter 121 claim under = 121.003(b).

B.=20 Traditional Motion Concerning Whether the Ship was=20 Renovated

In his=20 seventh issue, Peters contends that the trial court erred by = granting=20 summary judgment on his Chapter 121 claims because Norwegian was = not=20 entitled to traditional summary judgment. Norwegian moved for = summary=20 judgment on Peters's claims of accessibility on the Star = and the=20 Sea on the grounds that:

(1) the two=20 ships were built before January 1, 1992, and therefore the TABA = and TAS do=20 not apply;

(2) because=20 the State has not promulgated any regulations governing passenger = cruise=20 ships to implement the TABA, Norwegian could not be in violation;=20 and

(3) the=20 legislature "did not intend to require foreign-flagged ships that = pick up=20 passengers at Texas ports (but do not travel within Texas) to make = physical alterations to their ships in order to accommodate = disabled=20 individuals."

The=20 provisions of the TABA apply to "a privately funded building or = facility=20 that is defined as a 'public accommodation' by Section 301, = Americans with=20 Disabilities Act of 1990 (42 U.S.C. Section 12181), and it = subsequent=20 amendments, and that is constructed, renovated, or modified on or = after=20 January 1, 1992."^{=20
(21)} Tex. Gov't Code Ann. =A7 469.003(a)(4) (Vernon = Supp. 2006).=20 The TAS further stated that they apply to buildings and facilities = covered=20 by the TABA "during the = design,=20 construction, and alteration of such buildings." TAS Rule 1.1. An=20 "alteration" is defined as a change to a covered building or=20 facility

that=20 affects or could affect the usability of the building or facility = or part=20 thereof. Alterations include, but are not limited to, remodeling,=20 renovation, rehabilitation, reconstruction, historic restoration, = changes=20 or rearrangement of the structural parts or elements, and changes = in or=20 rearrangements in the plan configuration of walls and full-height=20 partitions. Normal maintenance, reroofing, painting or = wallpapering, or=20 changes to mechanical and electrical systems are not alterations = unless=20 they affect the usability of the building or = facility.

Id. Rule=20 3.5.9.

It is=20 undisputed that the Sea and the Star were built = before=20 January 1, 1992. Therefore, the TABA and TAS do not apply unless = they were=20 "renovated" or "modified," see Tex. Gov't = Code Ann.=20 =A7 469.003(a)(4), or "altered," see TAS Rule 1.1, after = that date.=20 Norwegian contends that although the ships did have some work done = to=20 them, it was not the type of "alteration" or "modification" that = would=20 trigger the applicability of TABA or TAS.

Peters = identifies=20 the affidavit of Sven-Erik Eklund as some evidence that the = Sea=20 was covered by the TABA and TAS. Eklund is a = Director-Superintendent=20 Engineer for Norwegian. In his affidavit he avers,

Between=20 January 1, 1992 and September 1, 2000 the only significant change = or=20 modification of the Norwegian Sea reflected in Norwegian Cruise = Line's=20 records was the conversion of cabins 6001, 6201, 7001, and 7201 = from=20 Deluxe Cabins into Owner's suites and the conversion of cabins = 8000, 8001,=20 and 8200 from Deluxe Cabins in Superior Deluxe suites. These = remodeling=20 efforts did not involve removal of any walls or any significant = structural=20 changes but did involve major refurbishing of those cabins. . . .=20 Norwegian Cruise Line's records reveal no structural changes were = done on=20 the Norwegian Star between January 1, 1992 and [the time it left=20 Norwegian's fleet].

Peters also=20 identified an excerpt from the affidavit of Norwegian's witness = James=20 Dolan, a consultant specializing in shipping and maritime issues. = Dolan=20 stated, "I reviewed the [Sea's] original plans and = compared them=20 to the current plans and did not find any evidence of substantial=20 conversion or change since the ship was built in 1988." Peters = further=20 relies on Bakke's deposition. Bakke testified, in response to a = question=20 asking when one of Norwegian's ships "last renovated," that = Norwegian's=20 ships "go to dry-dock two times every five years" and that both = the=20 Sea and the Star were in dry-dock at least once = each in=20 the late 1990s. Finally, Peters identifies a press release that = states=20 that, due to an onboard fire, the Sea underwent "a = multi-million=20 dollar refurbishment project" in January 2000.

Peters=20 contends that because Eklund stated that several cabins on the=20 Sea had been remodeled, this brings at least those cabins = within=20 the TABA and the TAS. See TAS Rule 3.5.9 ("alteration" = includes=20 "remodeling"). Peters also contends that Dolan's affidavit stating = there=20 was no "substantial conversion or change" to the Sea = implicitly=20 recognizes some change. Peter asserts that Bakke's testimony = regarding=20 ships being placed in dry-dock, in response to a question about=20 "renovations," coupled with his testimony that both ships at issue = have=20 been in dry-dock since the effective date of the TABA and the TAS = is some=20 additional evidence that the TABA and TAS apply to the ships. = See=20 TAS Rule 3.5.9 ("alteration" includes "renovation"). Finally, = Peters=20 contends that Norwegian's press release regarding the Sea = going=20 in dry-dock for a "multi-million dollar refurbishment project" is = some=20 evidence that the TABA and TAS apply.

Eklund's=20 affidavit also describes the upgrades to only seven of the = Sea's=20 many cabins as a "refurbishment." He also specifically stated that = no=20 walls were moved. Dolan's affidavit, even if construed as Peters = contends,=20 indicates only that some "change" was made to the Sea. = Bakke's=20 response to a question about renovations mentioned only regular = dry-dock=20 visits. In the same response, Bakke also went on to mention = changing=20 "carpet and upholstery." The press release that Peters identified = also=20 uses the word "refurbishment." The press release further describes = the=20 dry-dock changes as a "facelift." In detailing the "many = enhancements,"=20 the press release identifies new window drapes, carpet, curtains,=20 upholstery, bedspreads, bedskirts, and throw pillows.

Under the=20 TAS, the terms "renovation" and "remodeling" further define an=20 "alteration." Id. The terms "refurbishment," "facelift," = and=20 "enhancement" do not. Id. Further, a "change" may be an=20 "alteration" if it is a change "of the structural parts or = elements" or=20 "in the plan configuration of walls." Id. The TAS does = not apply=20 to "[n]ormal maintenance, reroofing, painting or wallpapering."=20 Id. Further "changes to mechanical and electrical systems = are not=20 alterations unless they affect the usability of the building or = facility."=20 Id.

The=20 "changes" and "renovations" that Peters identifies do not affect = the=20 usability of the ships or appear to be of the type covered by the = TABA and=20 TAS. No walls were moved and there is no other evidence of = structural=20 changes that would affect the usability or accessibility of the = ships.=20 Under this record, we cannot conclude that Peters has raised a = fact issue=20 regarding whether the ships at issue were "altered" after January = 1, 1992,=20 such that the TABA and TAS would apply.^{=20
(22)} We overrule Peters's seventh issue.

Conclusion

We affirm the judgment of the = trial court=20 regarding Peters's Chapter 121 claims based on violations of the = Texas=20 Architectural Barriers Act and the Texas Accessibility Standards. = We=20 reverse the trial court's judgment in all other respects and = remand this=20 cause for further proceedings not inconsistent with this=20 opinion.

Elsa Alcala

Justice

Panel consists of Justices = Taft, Alcala,=20 and Hanks.

1. Rodger Peters Jr. passed away in 2004. On = motion by=20 Peters's parents, the trial court substituted them as plaintiffs = as=20 representatives of Peters's estate. On appeal, both parties refer = to=20 Peters as the appellant, as will we.=20

2. Tex. Bus. & Com. Code Ann. =A7=A7 = 17.41-.63 (Vernon=20 2002 & Supp. 2006).=20

3. Tex. Hum. Res. Code Ann. =A7=A7 = 121.001-.011 (Vernon=20 2001 & Supp. 2006).=20

4. The elements of fraud are (1) that a = material=20 representation was made; (2) the representation was false; (3) = when the=20 representation was made, the speaker knew it was false or made the = representation recklessly, without any knowledge of the truth, and = as a=20 positive assertion; (4) the speaker made the representation with = the=20 intent that the other party act upon it; (5) the other party acted = in=20 reliance on the representation; and (6) that party thereby = suffered=20 injury. In re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex. = 2001). To=20 prevail on a fraudulent inducement claim, "the elements of fraud = must be=20 established as they relate to an agreement between the parties." = Haase=20 v. Glazner, 62 S.W.3d 795, 798-99 (Tex. 2001). The elements = of=20 negligent misrepresentation are (1) the defendant made a = representation in=20 the course of its business, or in a transaction in which it had a=20 pecuniary interest; (2) the defendant supplied false information = for the=20 guidance of others in their business; (3) the defendant did not = exercise=20 reasonable care or competence in obtaining or communicating the=20 information; and (4) the plaintiff suffered pecuniary loss by = justifiably=20 relying on the representation. Fondren Constr. Co. v. = Briarcliff Hous.=20 Dev. Assocs., Inc., 196 S.W.3d 210, 218 (Tex. App.--Houston = [1st=20 Dist.] 2006, no pet.).=20

5. Although Norwegian did not make these = alleged=20 misrepresentations directly to Peters, a party may be liable for a = misrepresentation made indirectly to a third person "if the person = making=20 the misrepresentation had intent or knowledge that it should be = exhibited=20 or repeated to a third person and intended or had reason to expect = the=20 third person would act or refrain from acting in reliance upon the = misrepresentation." Burroughs v. APS Int'l, Ltd., 93 = S.W.3d 155,=20 162 (Tex. App.--Houston [14th Dist.] 2002, pet. denied).=20

6. In its brief, Norwegian also asserts that = any=20 statement made by Peters's travel agents are inadmissible hearsay. = Norwegian raised this objection before the trial court, but did = not obtain=20 a ruling. See Blancett v. Lagniappe Ventures, Inc., 177 = S.W.3d=20 584, 589 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (noting = that=20 written ruling on objection to summary judgment evidence needed to = preserve error); Rogers v. Cont'l Airlines, Inc., 41 = S.W.3d 196,=20 200 (Tex. App.--Houston [14th Dist.] 2001, no pet.) (same).=20

7. Peters paid for his own tickets as well = as tickets=20 for his traveling companions, including his attendant that = assisted him=20 because of his impaired mobility.=20

8. The = elements of a=20 DTPA claim are (1) the plaintiff is a consumer, a person who seeks = or=20 acquires goods or services by purchase or lease, (2) the defendant = engaged=20 in false, misleading, or deceptive acts, and (3) the acts = constituted a=20 producing cause of the consumer's damages. Tex. Bus. & Com. = Code Ann.=20 =A7=A7 17.45(4), 17.50(a) (Vernon 2002 & Supp. 2006); Gill = v. Boyd=20 Distribution Ctr., 64 S.W.3d 601, 604 (Tex. App.--Texarkana = 2001,=20 pet. denied).=20

9. Under section 17.46(b)(5) of the DTPA, a = deceptive=20 trace practice is "representing that goods or services have = sponsorship,=20 approval, characteristics, ingredients, uses, benefits, or = quantities=20 which they do not have or that a person has a sponsorship, = approval,=20 status, affiliation, or connection which he does not." Tex. Bus. = &=20 Com. Code Ann. =A7 17.46(b)(5) (Vernon Supp. 2006).=20

10. Under section 17.46(b)(7) of the DTPA, = a=20 deceptive trade practice is "representing that goods or services = are of a=20 particular standard, quality, or grade, or that goods are of a = particular=20 style or model, if they are of another." Id. = =A7 17.46(b)(7)=20 (Vernon Supp. 2006).=20

11. Under section 17.47(b)(24) of the DTPA, = a=20 deceptive trade practice is "failing to disclose information = concerning=20 goods or services which was known at the time of the transaction = if such=20 failure to disclose such information was intended to induce the = consumer=20 into a transaction into which the consumer would not have entered = had the=20 information been disclosed." Id. =A7 17.46(b)(24) (Vernon = Supp.=20 2006).=20

12. Norwegian does not challenge the = existence of a=20 contract. The purported contract between the parties is the = "Contract of=20 Passage." Peters received the contract and his tickets after he = paid for=20 his tickets, a few days before his cruise. The contract was part = of a form=20 that included his reservation number and the itinerary for the = cruise,=20 such as arrival and departure times from the various ports. The = contract=20 consists of 28 numbered paragraphs covering the bottom one-third = of the=20 front of the itinerary and almost the entire rear. The first = paragraph of=20 the contract provides,

This=20 passenger ticket contract (hereafter "Contract") constitutes a = contract of=20 passage between [Norwegian] and the passenger or purchaser = (whether or not=20 signed by or on his behalf). All the terms and provisions of all = sides of=20 this Contract, including all of the following matter printed = below, are a=20 part of this Contract to which the passenger and/or purchaser, = both on=20 his/her behalf and on behalf of any other person or persons, = including=20 children, for whom this ticket is purchased, acknowledge and agree = to be=20 bound thereby by accepting this contract or transportation from=20 [Norwegian]. The fare includes only the transportation as = specified=20 herein, full board, ordinary ship's food, but does not include = spirits,=20 wine, beer, sodas or mineral waters. This Contract shall be the = entire=20 agreement between the parties and supersedes all representations = or=20 conditions contained in [Norwegian's] advertisements, notices, = brochures=20 or other literature and all promises and agreements made or = claimed to=20 have been made to or with the passenger or anyone representing him = by any=20 party.=20

13. Peters also asserts that Norwegian = breached the=20 contract by not providing "full board" because he could not access = the=20 restaurant on the tenth deck of either ship and his assigned = dinner table=20 was too low. We need not reach whether the contract was breached = on this=20 ground because we have determined that there is an issue whether = the=20 contract was breached on the ground pertaining to the visits to = the ports.=20

14. On appeal, the parties agree that = Norwegian did=20 not assert a no-evidence motion for summary judgment on Peters's = claims=20 for unjust enrichment. We sustain Peters's first issue that = contends that=20 Norwegian did not assert a no-evidence motion for summary judgment = for the=20 unjust enrichment claim.=20

15. An unjust enrichment claim requires a = plaintiff=20 to show that the defendant received a benefit from the plaintiff = through=20 fraud, duress, or the taking of an undue advantage and it would be = unjust=20 for the defendant to retain the benefit. See Heldenfels Bros., = Inc. v.=20 City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). =

16. Tex. Gov't Code Ann. =A7=A7 = 469.001-.208 (Vernon 2004=20 & Supp. 2006).=20

17. The Texas Accessibility Standards = ("TAS") were=20 adopted by the Texas Department of Licensing and Regulation and = compliance=20 with TAS is mandated by the Department's regulations. 16 Tex. = Admin. Code=20 =A7=A7 68.10(29), 68.20 (2007). The TAS are available on the = Department's=20 website. See Texas Department of Licensing and = Regulation,=20 http://www.license.state.tx.us/ab/tas/tascomplete.pdf (last = visited June=20 1, 2007).=20

18. Peters asserted other challenges to the = trial=20 court;'s grant of Norwegian's no-evidence motion on his Chapter = 121=20 claims, identifying fact issues relating to the requirements that = he=20 submit forms that other passengers were not required to submit and = that he=20 travel with a non-disabled companion, but we need not reach those = points=20 because we conclude that there is an issue of fact on whether he = was=20 charged an additional fare due to his disability.

19. The court = relied on=20 the regulations enacted by the Department of Justice to implement = the ADA=20 and a "Technical Assistance Manual" promulgated by the Department. = See=20 28 C.F.R. =A7 36.301(c); Department of Justice, Americans = with=20 Disabilities Act Title Three Technical Assistance Manual =A7=A7 = III-4.1400,=20 4.4600 (1993 & Supp. 1994) available at=20 http://www.usdoj.gov/crt/ada/taman3.html and=20 http://www.usdoj.gov/crt/ada/taman3up.html (last visited June 1, = 2007)=20 .

Section=20 36.301(c) of the Code of Federal Regulations = provides:

A = public=20 accommodation may not impose a surcharge on a particular=20 individual with a disability or any group of individuals with = disabilities=20 to cover the costs of measures, such as the provision of auxiliary = aids,=20 barrier removal, alternatives to barrier removal, and reasonable=20 modifications in policies, practices or procedures, that are = required to=20 provide that individual or group with the nondiscriminatory = treatment=20 required by the Act or this part.

28 C.F.R. =A7=20 36.301(c)

The=20 Department of Justice's ADA Title Three Technical Assistance = Manual=20 provides guidance in interpreting and applying the ADA. Section=20 III-14.4600, pertaining to seating in assembly areas of public=20 accommodations contains the following question-and-answer=20 example:

May a=20 public accommodation charge a wheelchair user a higher fee to = compensate=20 for the extra space required to accommodate a wheelchair or for = storing or=20 retrieving a wheelchair? No. People with disabilities may not = be=20 subjected to additional charges related to their use of a=20 wheelchair.

Department=20 of Justice, Americans with Disabilities Act Title Three Technical=20 Assistance Manual =A7 III-4.4600 (1993 & Supp. 1994).=20

20. The policy of Chapter 121 is "to = encourage and=20 enable persons with disabilities to participate fully in the = social and=20 economic life of the state, to achieve maximum personal = independence . . .=20 and to otherwise fully enjoy and use all public facilities = available=20 within the state." Tex. Hum. Res. Code Ann. =A7 121.001 (Vernon = 2001). The=20 ADA states that "the Nation's proper goals regarding individuals = with=20 disabilities are to assure equality of opportunity, full = participation,=20 independent living, and economic self-sufficiency for such = individuals."=20 42 U.S.C.S. =A7 12101(a)(8) (LexisNexis 2003).=20

21. Neither party disputes that a cruise = ship is a=20 public accommodation. See Spector v. Norwegian Cruise Line = Ltd.,=20 545 U.S. 119, 129, 125 S. Ct. 2169, 2177 (2005) (stating that = cruise ships=20 fall within definition of "public accommodation" of the Americans = with=20 Disabilities Act of 1990, 42 U.S.C. =A7 12181 et seq.)=20

22. Because we conclude that summary = judgment was=20 proper on the ground that the ships were not altered after January = 1,=20 1992, we do not address Peters's claims that summary judgment was = improper=20 on the grounds of a lack of regulations that expressly govern = cruise ships=20 or the legislature's intent to affect foreign-flagged vessels.=20

------=_NextPart_000_0034_01C7AAB3.EDFD8030 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.1stcoa.courts.state.tx.us/resource/opinions/images/icoEMail.gif R0lGODlhFAAPAKIAAAAAgIAAAP///8DAwICAgAAAAAAAAAAAACwAAAAAFAAPAAADNCi63P4wykaq vba4Mrr/ndaITxAM5JI2JrotQCwr7jjVDCnPAq7eKwEHRAwWjshkcsJsShIAOw== ------=_NextPart_000_0034_01C7AAB3.EDFD8030 Content-Type: text/css; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/resource/includes/oca.css .TitleBlue { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .TitleBlueCenter { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: center } .TitleMaroon { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: maroon; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleWhite { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleBlack { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .NavWhite { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.NavWhite:hover { TEXT-DECORATION: underline } .BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } A.BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.BreadCrumbs:hover { COLOR: blue } .TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } .TextJustify { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = black; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: justify } A.TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-DECORATION: underline } A.TextNormal:hover { FONT-WEIGHT: bold } .TextSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow } .TextSmallBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = #000099; FONT-FAMILY: Arial Narrow } .TextSmallJust { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow; TEXT-ALIGN: justify } A.TextSmall { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmallJust { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmall:hover { FONT-WEIGHT: bold } A.TextSmallJust:hover { FONT-WEIGHT: bold } .TextSmallWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = white; FONT-FAMILY: Arial Narrow } .TextWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: white; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif } A.TextWhite { =09 } A.TextWhite:hover { FONT-WEIGHT: bold } .LinksSite { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow; TEXT-DECORATION: none } A.LinksSite { =09 } A.LinksSite:hover { FONT-WEIGHT: bold } .TextNotify { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; 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_0034_01C7AAB3.EDFD8030--