In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-06-00738-CV
DONALD =
E. SPENCER,=20
Appellant
V.
PRIME =
SITE, INC.,=20
Appellee
On =
Appeal from=20
County Civil Court at Law No. 4
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 823027-101
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant,=20
Donald E. Spencer, appeals from a summary judgment rendered in =
favor of=20
appellee, Prime Site, Inc. In three issues, Spencer asserts that =
the trial=20
court erred by sustaining Prime Site=E2=80=99s objection to his =
summary judgment=20
evidence and by granting summary judgment against him in his =
claims for=20
common law fraud and negligence. ![3DFootnote](3D"")
We conclude that the trial court did not =
abuse its=20
discretion by sustaining Prime Site=E2=80=99s objection to =
Spencer=E2=80=99s evidence, and=20
that the court properly granted summary judgment because no =
evidence=20
raised a fact issue on the claims. We affirm. BackgroundSpencer lived in =
Lynbrook=20
Manor, a community of individually owned condominiums managed by =
Prime=20
Site. As a resident of the complex, Spencer was assigned parking =
space 169=20
for his personal use. Towing records indicate that on July 8, =
2002,=20
Lynbrook Manor resident Calvin McKnight contacted American Wrecker =
Service, requesting that a black Ford F-150 truck be removed from =
parking=20
space 167, McKnight=E2=80=99s assigned parking space in the =
complex. In response=20
to McKnight=E2=80=99s request for a tow from space 167, =
Spencer=E2=80=99s dark blue 2000=20
Ford F-150 truck, which Spencer said =E2=80=9Ccould be called =
black,=E2=80=9D was towed=20
from space 169. Spencer said that when he called Prime Site after =
the=20
towing, he was initially told they =E2=80=9Cdidn=E2=80=99t know =
anything.=E2=80=9D However, after=20
Prime Site contacted American Wrecker, Prime Site informed Spencer =
that a=20
resident had initiated the tow.
<=
/SPAN>Spencer=E2=80=99s=20
vehicle was released without charges for the tow. Spencer said he =
asked=20
Prime Site for the full name of the resident who ordered the tow =
to =E2=80=9Ctalk=20
to them for the safeguard [sic] of my family,=E2=80=9D and to =
ensure =E2=80=9Csomebody=20
doesn=E2=80=99t have any animus against =
us.=E2=80=9D
<=
/SPAN>As=20
of July 25, Spencer was told the resident=E2=80=99s name was =
Calvin. However,=20
Prime Site refused to disclose the full name and contact =
information of=20
the resident who requested the tow. Spencer demanded that Prime =
Site=20
reveal the name of the resident, saying that if it did not, he and =
his=20
family would move from the condominium complex. He and his family =
moved=20
out shortly thereafter.
<=
/SPAN>Spencer=20
got the full name and phone number of McKnight from American =
Wrecker on=20
September 11, 2002 at a municipal court tow hearing. Spencer =
contends that=20
he contacted McKnight three days after the tow hearing, but =
McKnight=20
disclaimed any responsibility for the towing.
&nbs=
p;Spencer=20
filed suit against Prime Site and American Wrecking. Spencer =
asserted that=20
Prime Site=E2=80=99s negligent and fraudulent conduct caused him =
to move from the=20
condominium. Spencer asserted his entitlement to $30,000 in =
damages,=20
including moving expenses, mental anguish, loss of enjoyment of =
life, loss=20
of income, and damages to his vehicle.
<=
/SPAN>In=20
response to the lawsuit filed by Spencer, Prime Site filed a =
motion for=20
traditional and no-evidence summary judgment on the claims for =
fraud and=20
negligence. Prime Site attached to its motion for summary judgment =
(1) a portion of Spencer=E2=80=99s deposition, =
(2) American Wrecker=E2=80=99s=20
tow log, and (3) a copy of Spencer=E2=80=99s original =
petition. In the=20
deposition, Spencer agreed that Prime Site did not place the call =
to have=20
the car towed. The towing log showed that McKnight requested the =
tow from=20
space 167, but that the vehicle from space 169 was=20
towed.
<=
/SPAN>Spencer=E2=80=99s=20
response to the motion for summary judgment included evidence, =
which=20
consisted of (1) an affidavit from himself, (2) the tow=20
agreement between Prime Site and American Wrecker, (3) the =
call=20
record for the tow, (4) a letter from Prime Site to Spencer, =
and=20
(5) a moving services contract for Spencer=E2=80=99s moving =
expense to leave=20
Lynbrook Manor. Prime Site objected to Spencer=E2=80=99s affidavit =
because it was=20
based on hearsay and was conclusory. Prime Site also objected to =
the=20
moving services contract on hearsay grounds because it was not =
accompanied=20
by the required business records affidavit. The trial court =
sustained the=20
evidentiary objections. The=20
trial court granted Prime Site=E2=80=99s summary judgment without =
stating the=20
grounds.
Exclusion of =
Evidence
<=
/SPAN>In=20
his first issue, Spencer contends that the trial court erred in =
sustaining=20
Prime Site=E2=80=99s objection to his affidavit submitted as =
summary judgment=20
evidence.
Spencer does not =
contend=20
that the affidavit is not conclusory or based on hearsay; rather, =
he=20
asserts that the page numbers referred to in the objection fail to =
sufficiently specify the portion believed to be objectionable.=20
<=
/SPAN>A=20
specific objection is one that enables the trial court to =
understand the=20
precise grounds so as to make an informed ruling, affording the =
offering=20
party an opportunity to remedy the defect, if possible. McKinney v. =
Nat=E2=80=99l Union Fire=20
Ins. Co. of Pittsburgh, Pa., 772 S.W.2d 72, =
74 (Tex.=20
1989) (op. on reh=E2=80=99g). The court in=20
McKinney noted that a non-specific objection does not =
preserve=20
error on appeal, not that a non-specific objection cannot be =
sustained.=20
See id.=20
We review a trial court=E2=80=99s ruling that sustains an =
objection to summary=20
judgment evidence for an abuse of discretion. See Cruikshank v. =
Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 499 (Tex. =
App.=E2=80=94Houston=20
[14th Dist.] 2004, pet. denied) (citing City of Brownsville v.=20
Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). =
<=
/SPAN>Though=20
Spencer cites to no authority in his brief, he refers to his =
motion for=20
new trial filed in the trial court, in which he cites Jensen=20
Construction Co. v. Dallas City, 920 S.W.2d 761 (Tex. =
App.=E2=80=94Dallas=20
1996, writ denied). In Jensen, the court held that =
appellate=20
argument regarding objections to an affidavit submitted as summary =
judgment evidence had to be more specific than a reference to =
eight pages=20
of transcript in order to preserve error on appeal. Jensen =
Constr.=20
Co., 920 S.W.2d at 769. The court noted: =E2=80=9CA general =
directive to=20
review affidavits for hearsay and impermissible factual =
conclusions=20
is not sufficient to direct our attention to the error =
about which=20
complaint is made.=E2=80=9D Id. (emphasis added). =
Jensen is not=20
applicable here because it enunciates a requirement of specificity =
in=20
appellate argument, not in objections to the trial court. =
See=20
id.
<=
/SPAN>Prime=20
Site filed written objections to Spencer=E2=80=99s affidavit. =
Specifically, Prime=20
Site objected to conclusory statements in Spencer=E2=80=99s =
affidavit, as=20
follows:
<=
/SPAN>1. Plaintiff=E2=
=80=99s=20
statements on page 3 of his affidavit regarding Prime =
Site=E2=80=99s alleged=20
breach of the =E2=80=9CPrivate Property =
Agreement;=E2=80=9D
<=
/SPAN>2. Plaintiff=E2=
=80=99s=20
statements on page 3 of his affidavit regarding Prime =
Site=E2=80=99s alleged=20
awareness of the alleged breach of the =E2=80=9CPrivate Property =
Agreement,=E2=80=9D and=20
misrepresentations;
<=
/SPAN>3. Plaintiff=E2=
=80=99s=20
statements on page 3 of his affidavit regarding his justifiable =
reliance=20
upon Prime Site=E2=80=99s alleged =
misrepresentations;
<=
/SPAN>4. Plaintiff=E2=
=80=99s=20
statements on page 3 of his affidavit regarding the materialness =
of Prime=20
Site=E2=80=99s alleged misrepresentations;
<=
/SPAN>5. Plaintiff=E2=
=80=99s=20
statements on page 3 of his affidavit regarding his alleged injury =
of=20
intentional infliction of emotional distress;
<=
/SPAN>6. Plaintiff=E2=
=80=99s=20
statements on page 4 of his affidavit regarding Prime =
Site=E2=80=99s alleged=20
negligence[.]
<=
/SPAN>Spencer=20
contends that he =E2=80=9Ccould not find anything on page three of =
his affidavit=20
that aligned with Prime Site=E2=80=99s objections,=E2=80=9D and =
that =E2=80=9Cpage=20
four . . . was the signature page.=E2=80=9D =
<=
/SPAN>Spencer=20
is correct that the fourth page is the signature page and that the =
page=20
numbers referred to in the objections do not correspond with the =
page=20
numbers in the four-page affidavit. However, we cannot conclude =
that the=20
trial court abused its discretion by sustaining the objection =
merely=20
because the page number in the objection does not correspond with =
the page=20
number in the affidavit. Excluding the signature page, the =
affidavit is=20
three pages long. The objections describe topics that are easily =
found on=20
pages two and three of the affidavit. We hold that Spencer has =
failed to=20
demonstrate that the trial court abused its discretion by =
sustaining Prime=20
Site=E2=80=99s objections. We overrule Spencer=E2=80=99s first =
issue.Summary =
Judgment
<=
/SPAN>In=20
his second and third issues, Spencer contends the trial court =
erred by=20
granting summary judgment on his claims for common law fraud and=20
negligence. Prime Site moved for both traditional and no-evidence =
summary=20
judgment. See Tex. =
R. Civ.=20
P. 166a(c) (traditional); Tex. R. Civ. P. 166a(i)=20
(no-evidence). The trial court granted the motion without stating =
the=20
grounds.
<=
/SPAN>We=20
review summary judgments de novo. Valence Operating Co. v. =
Dorsett,=20
164 S.W.3d 656, 661 (Tex. 2005). When, as here, a summary judgment =
does=20
not specify the grounds on which it was granted, we will affirm =
the=20
judgment if any one of the theories advanced in the motion is =
meritorious.=20
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 =
(Tex.=20
2004).
<=
/SPAN>After=20
adequate time for discovery, a party may move for summary judgment =
on the=20
ground that there is no evidence of one or more essential elements =
of a=20
claim. Tex. R. Civ. =
P.=20
166a(i). The trial court must grant the motion unless the =
nonmovant=20
produces summary judgment evidence raising a genuine issue of =
material=20
fact. Id. We review a no-evidence summary judgment by =
construing=20
the record in the light most favorable to the nonmovant and =
disregarding=20
all contrary evidence and inferences. Patriacca v. Frost, =
98 S.W.3d=20
303, 306 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, no pet.). A =
trial court=20
improperly renders a no-evidence summary judgment if the nonmovant =
presents more than a scintilla of probative evidence to raise a =
genuine=20
issue of material fact. Greathouse v. Alvin Indep. Sch. =
Dist., 17=20
S.W.3d 419, 423 (Tex. App.=E2=80=94Houston [1st Dist.] 2000, no =
pet.). More than a=20
scintilla of evidence exists when the evidence =E2=80=9Cwould =
allow reasonable and=20
fair-minded people to differ in their conclusions.=E2=80=9D =
Forbes Inc. v.=20
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.=20
2003).
<=
/SPAN>A. Fraud
<=
/SPAN>In=20
his second issue, Spencer asserts summary judgment for his claim =
of common=20
law fraud was improperly granted. To successfully assert a claim =
for=20
common law fraud, a party must prove:
<=
/SPAN>1. that=20
a material representation was made;
<=
/SPAN>2. the=20
representation was false;
<=
/SPAN>3. when=20
the representation was made, the speaker knew it was=20
false;
<=
/SPAN>4. the=20
speaker made the representation with the intent that the other =
party=20
should act on it;
<=
/SPAN>5. the=20
party acted in reliance on the representation; =
and
<=
/SPAN>6. the=20
party thereby suffered injury.
See In re First Merit Bank, N.A., =
52 S.W.3d=20
749, 758 (Tex. 2001). Prime Site stated =
in its=20
motion,
Plaintiff has =
provided no=20
evidence on any of the essential elements of fraud. Specifically,=20
Plaintiff has presented no evidence that Defendant made a=20
misrepresentation with the intention that Plaintiff act on it, =
that=20
Plaintiff relied on a misrepresentation, that he justifiably =
relied on a=20
misrepresentation, that the representation was material, that the=20
representation was false, or that Plaintiff suffered=20
damages.
<=
/SPAN>Assuming Spencer is correct =
that the=20
record shows that a false representation was made, Spencer =
produced no=20
admissible evidence on the other elements challenged in the =
no-evidence=20
motion. More specifically, the only evidence offered by Spencer on =
reliance and damages was his affidavit and the contract for moving =
services. However, both Spencer=E2=80=99s affidavit and the moving =
services=20
contract were struck by the trial court. Because Spencer did not =
produce=20
evidence to raise a fact issue on each of the challenged =
elements=20
in the motion for summary judgment, we hold that the trial court =
properly=20
rendered the no-evidence summary judgment on Spencer=E2=80=99s =
fraud claim in=20
favor of Prime Site. See Tex. R. Civ. Proc. =
166a(i);=20
Greathouse, 17 S.W.3d 423. We overrule Spencer=E2=80=99s =
second=20
issue.
<=
/SPAN>B. Negligence
<=
/SPAN>In=20
his third issue, Spencer contends summary judgment was also =
improperly=20
rendered on his claim for negligence. To succeed on a negligence =
claim, a=20
plaintiff must prove (1) the existence of a legal duty, =
(2) a=20
breach of that duty, and (3) damages that were proximately caused =
by the=20
breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 =
(Tex.=20
2006). In its motion for summary judgment, Prime Site asserts that =
Spencer=20
could produce no evidence of the elements of duty and causation on =
his=20
negligence claim.
Spencer responds that Prime Site owed a =
duty to=20
Spencer as a third party beneficiary of the contract between Prime =
Site=20
and American Wrecker and offers his own affidavit in support of =
his claim.=20
He also asserts that causation was shown because =E2=80=9C[Prime =
Site]=20
knew . . . that [Spencer] would not reside at =
Lynbrook=20
Manor without knowing and investigating the cause of the illegal =
tow=E2=80=9D and=20
cites to his own affidavit in support of this assertion.=20
<=
/SPAN>Assuming=20
a legal duty existed, Spencer produced no admissible evidence on =
the=20
causation element, which was challenged in Prime Site=E2=80=99s =
no- evidence=20
motion. The only evidence offered by Spencer on causation was his=20
affidavit. However, Spencer=E2=80=99s affidavit was struck by the =
trial court.=20
Because the trial court excluded the only evidence offered by =
Spencer to=20
show causation, we hold that the trial court properly rendered the =
no-evidence summary judgment on Spencer=E2=80=99s negligence claim =
in favor of=20
Prime Site. See Tex. R. Civ.=20
Proc. 166a(i); Greathouse, 17 S.W.3d at 423. We =
overrule=20
Spencer=E2=80=99s third issue.
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 Justice Radack =
and=20
Justices Alcala and=20
Bland.