Levi Pate and Nicole Pate v. Fun Town RV San Angelo, LP

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00059-CV

Levi Pate and Nicole Pate, Appellants

v.

Fun Town RV San Angelo, LP, Appellee

FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY

NO. D180534C, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING

M E M O RAN D U M O PI N I O N

Appellants Levi and Nicole Pate (the Pates) appeal the trial court’s take-nothing

summary-judgment in favor of Fun Town RV San Angelo, LP (Fun Town) on the Pates’ claims for

violations of the Deceptive Trade Practices Act (DTPA) arising from their purchase of a travel

trailer. In their first six issues the Pates argue that the trial court erred in granting Fun Town’s

hybrid summary-judgment motion concerning their DTPA claims for failure to disclose and

misrepresentation, breach of warranty, and unconscionable actions. The Pates next argue that the

trial court erred in granting summary judgment on their “claims” for revocation, rescission, or

restoration based on Fun Town’s disclaimer of warranties and because the Pates seasonably

revoked acceptance of the travel trailer. Finally, the Pates argue that Fun Town cannot prove that

the Pates failed to offer to return any benefit that they derived from the travel trailer. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Levi Pate testified by deposition that he purchased a 2017 Vengeance travel trailer

from the Fun Town dealership in San Angelo in June 2017. Levi testified by deposition that he

was familiar with travel trailers because he previously owned other recreational vehicles. He stated

that he spoke on the telephone with Fun Town sales staff about different inventory that was

available before he visited Fun Town in person. Levi testified that his first visit to Fun Town lasted

approximately two hours. Levi further testified that, during this visit, he and his family spent about

thirty minutes in the travel trailer they ultimately purchased, and “everything looked great in the

travel trailer.”

Levi testified by deposition that during his second visit, Fun Town representatives

once again walked through the travel trailer with him and also answered all of his questions about

the travel trailer before he took possession of it. 1 Levi testified that during the fifteen-minute

walk-through, “[e]verything was opened up, all the slide-outs were opened and electricity was

turned on.” Levi stated that the Fun Town representatives “walked through [and] showed me

everything—how to use everything,” and went through the features of a fifth wheel. During his

deposition, Levi agreed that he was able to complete the walk-through of the travel trailer before

he purchased it. 2 Levi also testified that he signed a pre-delivery inspection checklist that reflected

that he completely inspected the unit and that items in the travel trailer were working properly at

the time of purchase. Levi testified that before he took possession of the travel trailer, Fun Town

changed the hitch on the travel trailer to pair with the hitch on Levi’s new truck.

1Levi testified that his wife Nicole was not present during his second visit to Fun Town.

Levi signed Nicole’s name to the purchase paperwork for the travel trailer during the second visit.

2 During his deposition, Levi was asked if he “had an opportunity to work the slide-outs”

of the travel trailer during the walk-through on the day of purchase. He responded, “I don’t recall,”

but acknowledged “I could have” worked the slide-outs if he chose to.

2

Levi stated that after he brought the travel trailer home, he noticed that the linoleum

floor of the travel trailer was torn from the slide-out. 3 Levi testified that shortly after the purchase

in June 2017, he took the travel trailer on a ten-day vacation to Colorado without performing any

repairs on it. After the Pates returned from their vacation, Levi brought the travel trailer into

Fun Town for the first service appointment available, which was at the end of August, and left the

travel trailer at Fun Town. Hector Martinez, the General Manager for the Fun Town dealership in

San Angelo, testified by deposition that, pursuant to Fun Town’s policy, the Pates could have

continued to use their travel trailer instead of leaving it at Fun Town for several months while the

service department ordered the parts necessary to complete the repair. In January 2018, Fun

Town’s service department moved the travel trailer from San Angelo to its Cleburne dealership to

complete the repair. Fun Town repaired the travel trailer at no cost to the Pates.

In February 2018, while the travel trailer was at the Cleburne dealership, the Pates’

attorney sent Fun Town a DTPA demand letter notifying Fun Town of claims for violations of

various provisions of the DTPA and demanding actual damages, attorney’s fees, and that Fun Town

take back the travel trailer, rescind the sale, and refund the Pates’ expenses. The Pates’ attorney

also acknowledged in the DTPA letter that, “[o]n June 20, 2017, the Pates drove to San Angelo,

signed the papers, and went through the walk through on the travel trailer. At that time everything

worked. The linoleum was fine . . . .” 4

3 The Pates do not allege how many times they operated the slide-out after they purchased

the travel trailer before the linoleum tore. In their summary-judgment response, the Pates assert

that the slide-out ripped the linoleum sometime after they took possession of the travel trailer, and

they called Fun Town the following morning.

4 Although the dissent implies that we took this language from the Pates’ DTPA demand

letter out of context, the DTPA demand letter was drafted by an attorney, the words are

unambiguous, and we apply their plain meaning.

3

Levi testified by deposition that he did not inspect the repairs that Fun Town

performed on the travel trailer before his attorney sent the DTPA demand letter to Fun Town. Levi

also testified that when he went to the Cleburne dealership to inspect the travel trailer in

April 2018, the slide-out worked. Levi stated that he left the travel trailer at the Cleburne

dealership in April 2018 and would not have taken possession of the travel trailer even if it

was repaired.

Martinez testified by deposition that Fun Town repaired the linoleum floor on the

travel trailer before the Pates purchased the unit. Martinez testified that Fun Town was not

deceptive towards the Pates because Fun Town “fixed the linoleum” and “there’s not a need to

disclose every little thing” “that can be fixed” such as tightening a loose plumbing fixture.

Martinez “didn’t know what ripped” the linoleum floor before the sale because a few different

things can cause such a rip. He testified that “maybe a nail or a rock or something like that . . .

had gotten under the slide,” because “[w]hen these things are moving down the road . . . they shift

[and] adjust.” 5 Martinez testified by deposition that after Fun Town “fixed the linoleum” and

“operated the slides in and out a few different times, it didn’t rip.” For this reason, Martinez “did

not feel that it was the slides” that caused the pre-sale rip and instead believed that “a rock or a

nail or something like that could have caused it.”

Martinez testified that the length of time it takes Fun Town’s service department to

complete a repair depends upon how long it takes to obtain the necessary materials and the number

of units already in the service department. To cut down on the amount of time that a unit is in the

service department waiting for repairs, Martinez testified that the service department encourages

customers to use their travel trailers while parts are ordered, such as when Fun Town ordered

5 Martinez testified that these things happen to trailers when “[y]ou have a house of moving

parts going down the road.”

4

linoleum for the Pates’ unit. He stated that most customers use their travel trailer until Fun Town

gets the part in. Finally, Martinez testified that a customer is not required to have their travel trailer

serviced by Fun Town or the specific Fun Town dealership they purchased from.

Martinez testified that when the Pates brought their travel trailer into Fun Town in

August 2017, the service department notified the manufacturer that warrantied the unit of the

linoleum tear, and the manufacturer recommended the steps that the service department should

take to fix it. Martinez stated that “it wasn’t necessarily a rock” that tore the linoleum floor after

the Pates’ purchase, but there could have been an off-adjustment with the slide-out. Martinez

testified that the manufacturer ultimately suggested adding an additional roller to the slide-out, and

the service department complied. Martinez testified by deposition that he “do[es]n’t think

[the slide-out] was defective,” and he “ha[s]n’t h6eard of any other of these trailers needing a roller

in it.”

Martinez attests in an affidavit that Fun Town repaired the linoleum floor before

the travel trailer was sold to the Pates and the slide-out worked properly at the time of purchase.

Martinez further attests that during the make-ready, the slide-out was tested and it did not tear the

linoleum floor when it extended and retracted. Martinez also attests that a Fun Town representative

and the Pates walked through the travel trailer before and after the purchase to go over its features,

which included testing and operating the slide-outs.

Martinez further attests in his affidavit that Fun Town told the Pates that they could

use their travel trailer any time while it was at Fun Town getting repaired. Martinez avers that the

linoleum floor tear did not prevent the Pates from using the travel trailer because the slide-out still

worked. Martinez attests that he personally inspected the travel trailer after the linoleum floor and

slide-out repair, and the slide-out works properly. Martinez also attests that the travel trailer is no

5

less valuable due to any repair that Fun Town completed; however, the Pates refuse to take

possession of the travel trailer despite it being repaired at no cost to the Pates.

In April 2018, the Pates filed a lawsuit against Fun Town asserting causes of action

under the DTPA for failure to disclose, misrepresentation, unconscionable conduct, and breach of

warranty. The Pates state in their petition that the travel trailer was defectively made. The Pates

allege that Fun Town misrepresented that the travel trailer was in perfect condition and that

Fun Town “had the best service department in the Big Country.” The Pates also assert that

Fun Town failed to disclose that it repaired the linoleum before the purchase. The Pates contend

that Fun Town breached the implied warranty of merchantability and engaged in unconscionable

conduct. The Pates assert that they purchased a travel trailer for $70,172.04 that has a fair market

value of zero, and they sought as damages restoration of the purchase price of the travel trailer plus

all payments made on the note, insurance and travel costs, and loss of use. The Pates also requested

revocation of acceptance and rejection of the transaction.

Fun Town filed a hybrid motion for summary judgment arguing that there was no

evidence to support the Pates’ DTPA misrepresentation and failure-to-disclose claims because

there was no evidence of any pre-sale misrepresentation. Moreover, because it was undisputed

that the slide-out functioned properly at the time of purchase, Fun Town had no knowledge of a

defect and no duty to disclose. Fun Town also argued that there was no evidence to support a

breach-of-warranty claim because the Pates signed paperwork stating that they inspected the travel

trailer to their satisfaction and the Pates disclaimed all warranties when they signed the purchase

agreement and dealer warranty disclaimer. Fun Town maintained that there was no evidence to

support an allegation that its actions were unconscionable for the same reasons that the Pates’ other

DTPA claims failed. Finally, Fun Town asserted that restoration of remedy damages was not

6

available to the Pates because they failed to seasonably reject the travel trailer, they disclaimed all

warranties, and they did not offer to return the benefit they received from the travel trailer.

Evidence that Fun Town attached to its summary-judgment motion included: (1) the Pates’ DTPA

demand letter; (2) Martinez’s affidavit; (3) the purchase agreement for the travel trailer, signed by

the Pates; (4) the manufacturer’s customer delivery and warranty registration form, signed by the

Pates; (5) Fun Town’s dealer warranty disclaimer signed by the Pates; (6) the pre-delivery

inspection checklist signed by the Pates, (7) excerpts of Levi Pate’s deposition testimony; and

(8) excerpts of Nicole Pate’s deposition testimony.

The Pates responded to Fun Town’s hybrid motion for summary judgment and

attached evidence that included excerpts of Fun Town corporate representative Hector Martinez’s

deposition and the affidavit testimony of Levi Pate. In December 2021 the trial court signed a

final judgment granting Fun Town’s traditional and no-evidence motions for summary judgment.

ANALYSIS

After an adequate time for discovery has passed, a party may move for a

no-evidence summary judgment on the ground that there is no evidence to support an essential

element of a claim on which the non-movant bears the burden at trial. See Tex. R. Civ. P. 166a(i);

Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). To defeat a no-evidence motion for

summary judgment, the non-movant must produce more than a scintilla of evidence to raise a

genuine issue of material fact on the challenged element. See Tex. R. Civ. P. 166a(i); Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “Less than a scintilla of evidence exists when

the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.”

Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003) (quoting King Ranch

7

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). More than a scintilla of evidence exists if the

evidence would permit reasonable and fair-minded people to differ in their conclusions. Id.

A party moving for traditional summary judgment bears the burden of showing that

no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex.

R. Civ. P. 166a(c); Nassar v. Liberty Mut. Fire Ins., 508 S.W.3d 254, 257 (Tex. 2017) (per curiam).

An issue is established conclusively if reasonable minds could not differ about the conclusion to

be drawn from the facts in the record. Community Health Sys. Prof’l Servs. Corp. v. Hansen,

525 S.W.3d 671, 680 (Tex. 2017). “If the movant carries this burden, the burden shifts to the

nonmovant to raise a genuine issue of material fact precluding summary judgment.” Lujan

v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). A defendant who moves for traditional summary

judgment on the plaintiff’s claims must conclusively disprove at least one element of each of the

plaintiff’s causes of action. Little v. Texas Dep’t of Crim. Just., 148 S.W.3d 374, 381 (Tex. 2004).

We review a trial court’s summary judgment de novo. Lujan, 555 S.W.3d at 84.

Under either a no-evidence or traditional motion, we consider the evidence in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the

nonmovant’s favor. See Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022); Sudan v. Sudan,

199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (citing City of Keller v. Wilson, 168 S.W.3d 802,

823 (Tex. 2005)). Where the trial court does not state the basis on which it granted summary

judgment, we must affirm if any of the grounds asserted in the summary-judgment motion are

meritorious. Hansen, 525 S.W.3d at 680. In reviewing a summary judgment, we consider all

grounds presented to the trial court and preserved on appeal in the interest of judicial economy.

Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Though we typically address a

no-evidence summary-judgment motion before a traditional summary-judgment motion,

8

see Ridgway, 135 S.W.3d at 600, we can address the traditional motion first when it is dispositive.

See D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217, 225 n.7 (Tex. App.—

Fort Worth 2013, no pet.)

The DTPA prohibits “false, misleading, or deceptive acts or practices.” Tex. Bus.

& Com. Code § 17.46(a). The Pates have alleged such acts to include “representing that goods or

services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which

they do not have” and “representing that goods or services are of a particular standard, quality, or

grade, or that goods are of a particular style or model, if they are of another.” Id. § 17.46(b)(5),

(7). The term “transaction” as used in the DTPA contemplates an act where an alteration of legal

rights occurs. Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 744 (Tex. App.—Fort Worth

2005, no pet.). The transaction in this instance occurred when the Pates purchased the travel trailer.

See id.

The Pates first argue that the trial court erred in granting Fun Town’s

summary-judgment motion on their claims alleging violations of the DTPA for failure to disclose

and misrepresentation. See Tex. Bus. & Com. Code § 17.46(b)(5), (7), (24). The Pates’ claims

are based on Fun Town’s purported failure to disclose a defect, misrepresentation of the standard

of the travel trailer, and misrepresentation that Fun Town had the “best service department in the

Big Country.” Specifically, the Pates contend that (a) the slide-out tore the linoleum of the travel

trailer prior to their purchase, (b) Fun Town repaired the linoleum but did not inspect or repair the

slide-out because Fun Town guessed that a nail or small rock had gotten under the slide-out; and

(c) if the Pates had been informed of this event and no attempt to repair the slide-out, they would

not have bought the travel trailer.

9

There is no evidence in the record that Fun Town made false statements about the

travel-trailer’s “sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities” at

the time of purchase. Id. § 17.46(b)(5). There is also no evidence that Fun Town made false

representations about the standard, quality, grade, style, or model of the travel trailer. Id.

§ 17.46(b)(7). Levi testified by deposition that during his first visit to Fun Town, he remembered

Fun Town representatives discussing with him “[j]ust the different types of trailers and

convenience for the significance of fitting our family in the trailer.” Levi testified that he otherwise

did not necessarily remember any specific discussions that he had with Fun Town sales

representatives regarding the travel trailer on his first visit. Levi further testified that during his

second visit, Fun Town representatives conducted a fifteen-minute walk-through that included

going through the systems of the travel trailer. During the walk-through, a Fun Town

representative “showed [Levi] everything—how to use everything” on the travel trailer. After the

walk-through, the Pates signed documents stating that their questions about the travel trailer were

answered and that they tested its features and systems before they completed the purchase. Levi

testified that he did not recall any specific discussions he had with any Fun Town representative

during the second visit, aside from getting approval to sign his wife’s signature on the purchase

paperwork. Nicole testified by deposition that during her first and only visit to Fun Town, she

remembered touring the travel trailer and negotiating price in the sales office. She stated that she

had no additional discussions with Fun Town staff that were not discussed in her deposition.

Neither of the Pates produced evidence of Fun Town statements or representations that were false.

The record contains no evidence raising a genuine issue of material fact as to whether Fun Town

made false statements or misrepresentations under the DTPA. See id. § 17.46(b)(5), (7); Tex. R.

Civ. P. 166a(i).

10

The Pates also allege that Fun Town violated the DTPA by “failing to disclose

information concerning goods or services which was known at the time of the transaction if such

failure to disclose such information was intended to induce the consumer into a transaction into

which the consumer would not have entered had the information been disclosed.” See Tex. Bus.

& Com. Code § 17.46(b)(24). To prevail on a claim for failure to disclose under the DTPA, the

Pates must prove that (1) Fun Town failed to disclose material information concerning goods or

services; (2) the undisclosed information was known at the time of purchase; (3) Fun Town

intended to induce the Pates to enter into the transaction through the failure to disclose; and (4) the

Pates would not have entered into the transaction had the information been disclosed. See id.;

Patterson v. McMickle, 191 S.W.3d 819, 827 (Tex. App.—Fort Worth 2006, no pet.) (citing Gill

v. Boyd Distrib. Ctr., 64 S.W.3d 601, 604 (Tex. App.—Texarkana 2001, pet. denied)). Mere

nondisclosure of material information does not establish an actionable DTPA claim. Patterson,

191 S.W.3d at 827; Head, 159 S.W.3d at 744. “Nondisclosure without evidence that a defendant

had knowledge of the undisclosed information and intentionally withheld the information is

insufficient to establish a violation of the DTPA.” Willowbrook Foods, Inc. v. Grinnell Corp.,

147 S.W.3d 492, 506 (Tex. App.—San Antonio 2004, pet. denied). In addition, the known

information must be withheld for the purpose of inducing the consumer to enter into the

transaction. See Doe v. Boys Club of Greater Dall. Inc., 907 S.W.2d 472, 480 (Tex. 1995).

The summary-judgment record establishes that Fun Town did not “fail to disclose

information . . . that was known at the time of the transaction” intending to induce the Pates to

enter into the transaction. See Tex. Bus. & Com. Code § 17.46(b)(24). It is undisputed that when

the Pates purchased the travel trailer the slide-out worked. Martinez testified that after the

make-ready was completed, Fun Town tested the slide-out to ensure that it worked properly. He

11

attests that, at the time of purchase, the slide-out did not tear the linoleum floor when it extended

and retracted. Martinez further attests that a Fun Town representative walked Levi through the

travel trailer and operated the slide-outs before and after the purchase. Levi likewise testified by

deposition that before he purchased the travel trailer, Fun Town representatives answered all of

his questions and conducted a walk-through where “[e]verything was opened up, all the slide-outs

were opened and electricity was turned on.” The Pates pleaded that the travel trailer had no

apparent defects at the time of purchase. The Pates’ DTPA demand letter states that at the time of

purchase “everything worked” on the travel trailer and “[t]he linoleum was fine.” 6

Levi also testified by deposition that he signed a pre-delivery inspection checklist

at the time of purchase, where he acknowledged the following:

I CERTIFY THAT THE UNIT DESCRIBED ABOVE WAS DELIVERED TO ME

ON THIS DATE 6/20 AND THAT THE DEALER EXPLAINED OR

DEMONSTRATED ALL APPLICABLE ITEMS LISTED TO MY

SATISFACTION. I FURTHER CERTIFY THAT I HAVE COMPLETELY AND

FULLY INSPECTED THIS UNIT AND HAVE FOUND NO DEFECTS IN

MATERIAL AND OR WORKMANSHIP OTHER THAN WHAT MIGHT BE

LISTED ABOVE AND I ACCEPT THIS UNIT WITH

COMPLETE SATISFACTION.

This pre-delivery inspection checklist reflected that the interior, exterior, and floor of the travel

trailer were inspected. Levi also testified by deposition that he signed the manufacturer’s customer

delivery and warranty registration form that acknowledged he “observed and received satisfactory

explanations to all questions regarding the items listed during the delivery process.” The

manufacturer’s customer delivery and warranty registration form also stated that Levi inspected

6 The DTPA demand letter recites that the Pates took a photograph of the tear in the

linoleum that occurred after the purchase. However, the record does not contain a photograph or

description of the tear that occurred before or after the purchase of the travel trailer. The Pates do

not allege and do not provide or point to evidence that that the pre-sale tear in the linoleum was

similar in location and size to the tear that occurred after the purchase of the travel trailer.

12

the travel trailer to his satisfaction and was offered a test drive at the time of purchase. Levi

testified that he was provided the opportunity to make notations on the form if he was not happy

with any feature of the travel trailer, but he did not do so because “[n]othing seemed wrong.”

Critically, the Pates do not allege that Fun Town inspected the slide-out and had

material knowledge of an alleged defect before the sale. In their summary-judgment response, the

Pates assert that the evidence is undisputed that Fun Town did not inspect or repair the slide-out

before the purchase because Fun Town believed that a small rock or nail caused the linoleum tear.

The Pates also acknowledge in their brief that the summary-judgment evidence demonstrates that

Fun Town believed the pre-sale linoleum tear was caused when a rock or nail traveled into the

slide during transit and that the repair was simple. The Pates argue that this belief is why Fun Town

did not inspect or repair the slide-out when it repaired the linoleum pre-sale. See Boys Clubs of

Greater Dall., 907 S.W.2d at 479 (explaining that defendant has no duty to disclose material facts

it should have known but does not). The evidence thus fails to create a fact issue concerning

whether Fun Town knew of a defect and intentionally withheld information with the intent to

induce the Pates to purchase the travel trailer. See Robinson v. Preston Chrysler-Plymouth, Inc.,

633 S.W.2d 500, 502 (Tex. 1982) (instructing that non-disclosure is not actionable without

evidence defendant had knowledge of undisclosed information and intentionally withheld it).

The Pates also contend that Fun Town’s assertion that the dealership had the “best

service department in the Big Country” was a misrepresentation under the DTPA. To be actionable

under the DTPA, a misrepresentation must concern a material fact and not be merely puffing or

opinion. Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980). Broad statements comparing

one’s goods with others or labeling service “good” or “superb” without more “amounts to mere

sales talk, or puffery, not a statement of material fact.” GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889

13

(Tex. App.—Austin 2008, no pet.). A statement that Fun Town had the “best service department

in the Big Country” is a broad, vague statement of opinion and not a representation of material fact

under the DTPA. See id.

Because none of the evidence relied upon by the Pates concerned a

misrepresentation or false statement of material fact under the DTPA, the trial court did not err

when it granted Fun Town’s no-evidence motion for summary judgment on this claim. See Tex.

R. Civ. P. 166a(i). Because the summary-judgment evidence also shows the absence of a genuine

issue of material fact and that Fun Town did not violate the DTPA by failing to disclose a material

fact, the trial court did not err when it rendered traditional summary judgment in favor of Fun Town

on these claims. See Tex. R. Civ. P. 166a(c); Ridgway, 135 S.W.3d at 600. We overrule the Pates’

first two issues.

Before moving to the Pates’ third issue, we pause to address the dissenting opinion.

To conclude that the Pates produced evidence sufficient to create fact issues on their DTPA claims

for failure to disclose and unconscionable conduct, the dissent misinterprets the evidence and

misapplies the standard for summary-judgment review. The dissent proposes that the Pates’

summary-judgment evidence creates a reasonable inference that “Fun Town knew what the real

problem was and simply patched the linoleum to hurry the sale along,” and that Fun Town left the

slide-out in the open position and did not operate it during the walk-through to conceal the

14

underlying problem at the time of purchase. 7 The dissent asserts that the following stacked

inferences created a fact issue precluding summary judgment: 8

• The slide-out caused the linoleum tear during the make ready, and Fun Town knew this.

• Although Fun Town actually knew what the real problem was with the travel trailer, it

simply patched the linoleum during the make-ready to hurry the sale along.

• Fun Town orchestrated the events on the day of purchase to hide the defect from the

Pates by leaving the slide-out in the open position and not operating the slide-out during

the walk-through.

• Fun Town failed to disclose the defect to the Pates at the time of purchase and acted to

hide the defect from the Pates in order to induce them into the sale of the travel trailer.

But the dissent ignores evidence from both parties that nullifies the proposed inferences:

• The DTPA demand letter, wherein the Pates’ attorney states that “[a]t th[e] time [of

purchase] everything worked. The linoleum was fine . . .”

7 The dissent contends that, in analyzing traditional summary judgment, we should not

consider evidence that Fun Town presented in support of its summary-judgment motion because

the Pates do not challenge whether Fun Town carried its burden as a matter of law and only

challenge whether they raised a fact issue in response. We disagree. First, the Pates do challenge

whether Fun Town carried its burden. The Pates argue on appeal that “Fun Town did not prove as

a matter of law that [it] did not engage in false, misleading, or deceptive acts or practices.” The

Pates further assert that “Fun Town fails to prove as a matter of law there is no genuine issue of

material fact as to Fun Town’s lack of knowledge.” Second, considering only the evidence that

the Pates attached to their summary-judgment response would be a no-evidence summary

judgment analysis rather than a traditional summary-judgment analysis. Compare Tex. R. Civ. P.

166a(i) (placing burden on non-movant to produce evidence to resist no-evidence summary

judgment) with Tex. R. Civ. P. 166a(c) (placing burden on movant to show no genuine issue of

material fact in record).

8 Summary-judgment evidence fatally undermines these stacked inferences. See King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755 (Tex. 2003) (“some suspicion linked to other

suspicion produces only more suspicion, which is not the same as some evidence”) (quoting

Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993)); see also City of Keller

v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005) (instructing that although reviewing court examines

summary-judgment record in light most favorable to nonmovant, “[reviewing courts do not

disregard the evidence supporting the motion; if they did, all summary judgments would be

reversed”) (emphasis in original).

15

• Levi’s sworn deposition testimony that (i) Fun Town serviced the travel trailer on the

day of purchase by changing the hitch and (ii) he signed a customer delivery and

warranty registration form reflecting that Fun Town offered him a test drive at the time

of purchase.

• Martinez’s sworn deposition testimony that (i) Fun Town was not deceptive towards

the Pates because Fun Town fixed the linoleum pre-sale and tested the slide-out and it

worked; and (ii) because of this Fun Town thought a rock or nail caused the

linoleum tear.

• Levi’s sworn deposition testimony that (i) “nothing seemed wrong” with the travel

trailer on the day of delivery; (ii) although Levi does not recall if he personally operated

the slide-out during his walk-through of the travel trailer on the day of delivery, he

could have done so if he so chose; and (iii) he signed a pre-delivery inspection checklist

at delivery acknowledging that he “completely and fully inspected this unit” and “found

no defects in material or workmanship,” including the floor.

This evidence—particularly that from the Pates—exposes the dissent’s proposed stacked

inferences as mere surmise or suspicion that is not cognizable summary-judgment evidence.

See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017)

(“The evidence does not create an issue of material fact if it is ‘so weak as to do no more than

create a mere surmise or suspicion’ that the fact exists.”) (quoting Kia Motors Corp. v. Ruiz,

432 S.W.3d 865, 875 (Tex. 2014)).

The dissent argues that we improperly considered Martinez’s sworn deposition

testimony because Martinez’s credibility could be a dispositive factor in the case. However, “[o]ur

summary judgment rule permits the granting of a summary judgment on the basis of

uncontroverted testimonial evidence of an interested witness if that evidence is clear, positive, and

direct, otherwise credible and free from contradictions and inconsistencies, and could have been

readily controverted.” Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) (citing Tex. R. Civ. P.

166a(c)). In an affidavit attached to the Pates’ summary-judgment response, the Pates’ attorney

attests that he took the deposition of Martinez and that Martinez made no changes to his deposition

testimony. The Pates cite more than twenty pages of Martinez’s deposition testimony in their

16

summary-judgment response. And the Pates credit Martinez’s testimony that before the sale,

Fun Town “repaired the linoleum” and did not “inspect or repair” the slide-out because Fun Town

“guessed or assumed that it might have been a small rock or nail that caused the tear.” Because

the Pates did not object to Martinez’s affidavit and deposition testimony as competent

summary-judgment evidence under Rule 166a(c), we are free to consider the testimony. See

Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (“A court of appeals commits

reversible error when it sua sponte raises grounds to reverse a summary judgment that were not

briefed or argued on appeal.”).

Aside from the lack of evidence contradicting the judgment, the record does not

support reversal because the Pates do not allege that Fun Town actively concealed a defect in the

trailer at the time of purchase. See Tex. R. Civ. P. 166a(c) (providing that in reviewing summary

judgment, “[i]ssues not expressly presented to the trial court by written motion, answer, or other

response shall not be considered on appeal as grounds for reversal”); see also Tex. R. App. P.

33.1(a)(1) (mandating that to preserve complaint for appeal, record must demonstrate complaint

was made to trial court). In their summary-judgment response, the Pates allege that, during the

make-ready, Fun Town “simply repaired the linoleum without investigating, inspecting, or

repairing the slide out, and took no action to determine the true nature of the problem.” The Pates

identify the following facts as “undisputed:”

• Fun Town repaired the linoleum before purchase, “but had not repaired or inspected the

slide out” because Fun Town “guessed that maybe a nail or small rock had gotten under

the slide.”

17

• Because Fun Town “guessed or assumed” that a little rock or nail caused the tear, it “made

no effort to inspect or repair the slide out prior to” purchase. 9

The Pates fault Fun Town for “guessing” that a small rock or nail caused the rip and “hop[ing]”

they fixed the trailer correctly. They do not allege that Fun Town actively concealed a defect in

the trailer at the time of purchase. Because the Pates did not argue in the trial court that, before

the purchase, Fun Town knew that the slide-out caused the linoleum to rip and intentionally hid

this knowledge to induce the Pates into the sale, we cannot address the issue on appeal.

See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (instructing that

motions and responses for summary judgment must stand or fall on grounds expressly presented

to trial court).

The Pates did not allege in their petition or summary-judgment response, and no

evidence in the record demonstrates, that Fun Town knew at the time of sale that the slide-out was

defective and withheld this material information with the intent to induce the sale. See Tex. Bus.

& Com. Code § 17.46(b)(24). For these reasons, the trial court did not err by granting Fun Town’s

motion for summary judgment on the Pates’ DTPA claims for failure to disclose and

misrepresentation. See Tex. R. Civ. P. 166a(i), (c).

In their third issue, the Pates argue that the trial court erred in granting

summary judgment on their claim for breach of warranty. 10 “The DTPA does not create

warranties; rather, they must be established independently of the act.” Elliot v. Kraft Foods N.

Am., Inc., 118 S.W.3d 50, 56–57 (Tex. App.—Houston [14th Dist.] 2003, no pet.). To recover

9 The Pates continue to argue in their opening brief that it is “undisputed that Fun Town

did not repair or inspect the slide-out mechanism.”

10 The Pates do not specify the warranty that Fun Town allegedly breached or explain how

Fun Town breached the unspecified warranty.

18

under the DTPA on a breach of warranty, a plaintiff must demonstrate (1) consumer status,

(2) existence of the warranty, (3) breach of the warranty, and (4) that the breach caused injury. Id.

at 55; see Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576–77 (Tex. 1991) (holding

breach of warranty claims are actionable under DTPA). If the seller is a merchant with respect to

goods of that kind, the implied warranty of merchantability applies in a contract for goods unless

it is excluded or modified. See Tex. Bus. & Com. Code § 2.314(a). To show a breach of the

implied warranty of merchantability, a plaintiff must demonstrate that the goods were defective

when they left the seller’s possession and “were unfit for ordinary purposes for which they are

used because of a lack of something necessary for adequacy.” Plas-Tex, Inc. v. U.S. Steel Corp.,

772 S.W.2d 442, 444 (Tex. 1989). A product that performs its ordinary function adequately does

not breach the implied warranty of merchantability simply because it does not function as well as

the buyer would prefer or as well as it could. General Motors Corp. v. Brewer, 966 S.W.2d 56,

56 (Tex. 1998).

Fun Town asserted in its answer and summary-judgment motion that the Pates

disclaimed all warranties from the dealership in the purchase of the travel trailer. 11 See Tex. Bus.

& Com. Code § 2.316(b). A disclaimer of the implied warranty of fitness and implied warranty

of merchantability must be conspicuous, and a disclaimer of the implied warranty of

merchantability must mention the word “merchantability.” See id. A printed heading in capital

letters or text in the body of a form that is in larger or contrasting type is considered conspicuous.

See id. § 1.201(10). Unless circumstances demonstrate otherwise, all implied warranties are

excluded by language that in common understanding calls the buyer’s attention to the exclusion of

11 The Pates’ travel trailer was covered by a one-year limited manufacturer’s warranty.

The Pates purchased an additional eighty-four months of warranty coverage through an

independent third-party company.

19

warranties and makes it plain that there is no implied warranty. See id. § 2.316 (modifying or

disclaiming UCC warranties in sale transactions).

The summary-judgment evidence establishes that the Pates disclaimed all

warranties from Fun Town in the purchase of the travel trailer. The Pates signed multiple

documents stating that Fun Town did not provide them with any warranties for the travel trailer.

The purchase agreement signed by the Pates states in capital font and larger text that “THE

DEALER HEREBY DISCLAIMS TO THE EXTENT PERMITTED UNDER APPLICABLE

STATE LAW ALL WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY IMPLIED

WARRANTY OF THE MERCHANTABILITY OF FITNESS FOR A PARTICULAR

PURPOSE.” The Pates also signed a document bearing the heading “DEALER WARRANTY

DISCLAIMER” in bold capital letters that also states in bold: “[t]he only warranties applying to

this vehicle are those offered by the manufacturer. The selling dealer disclaims all warranties,

either expressed or implied, including all warranties of merchantability or fitness for a particular

purpose . . . .” Hector Martinez, the General Manager for Fun Town, testified by affidavit that

Fun Town does not manufacture the recreational vehicles that it sells to the public and Fun Town

does not provide any warranties on recreational vehicles that it sells.

These exclusions of warranty are sufficiently conspicuous to effectively disclaim

the implied warranties of merchantability and fitness in the sale of the travel trailer. 12 See id.

§ 2.316(b). Because the summary-judgment evidence conclusively disproves the Pates’ DTPA

claim for breach of warranty, we conclude that the trial court did not err when it granted

12 The evidence reflects that the Pates used their travel trailer for its ordinary purpose when

they took it on a ten-day trip to Colorado before it was repaired, and the Pates could have continued

to use the travel trailer instead of leaving it with Fun Town while the service center waited to

complete the repair. See General Motors Corp. v. Brewer, 966 S.W.2d 56, 56 (Tex. 1998).

20

Fun Town’s traditional motion for summary judgment regarding this claim. See Tex. R. Civ. P.

166a(c). We overrule the Pates’ third issue on appeal.

The Pates next argue that the trial court erred in granting summary judgment

because there was evidence that Fun Town’s actions were unconscionable. An unconscionable act

under the DTPA is one that, “to a customer’s detriment, takes advantage of the lack of knowledge,

ability, experience, or capacity of the consumer to a grossly unfair degree.” Tex. Bus. & Com.

Code § 17.45(5). To prove an unconscionable action, the Pates must show that Fun Town took

advantage of their lack of knowledge and that the resulting unfairness was “glaringly noticeable,

flagrant, complete and unmitigated.” Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985).

The summary-judgment evidence conclusively proved that Fun Town did not take

advantage of the Pates’ lack of knowledge or experience to a grossly unfair degree. The Pates,

who previously owned recreational vehicles, were not without choice in selecting another

dealership to purchase a travel trailer from. See Head, 159 S.W.3d at 745 (concluding that trial

court did not err in granting summary judgment on claim of unconscionable act when, among other

factors, consumer had choice in selecting inspection company). For the same reasons that we

conclude the record does not raise a genuine issue of material fact issue concerning the Pates’

previously discussed claims, we conclude that the trial court did not err in granting summary

judgment on the Pates’ claim of an unconscionable act. Tex. R. Civ. P. 166a(c); Bradford v. Vento,

48 S.W.3d 749, 760 (Tex. 2001). We overrule the Pates’ fifth issue.

Further, our conclusion that the summary judgment stands on traditional grounds

means that we need not consider issues four and six, by which the Pates challenge the no-evidence

summary judgment on its breach of warranty and unconscionable claims. See Tex. R. App. P.

47.1; D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., 416 S.W.3d 217, 225 n.7 (Tex. App.—

21

Fort Worth 2013, no pet.) (addressing traditional motion for summary judgment first because it

was dispositive). Finally, the Pates argue in issues seven and eight that the trial court erred in

granting summary judgment on its requests for revocation, rescission, or restoration based on

Fun Town’s disclaimer of warranties or that they revoked their acceptance of the trailer within a

reasonable time. Because the Pates have not shown that the trial court erred in granting Fun Town

a summary judgment, the Pates have not shown that they are entitled to the remedies of revocation,

rescission, or restoration. See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 825 (Tex. 2012)

(instructing that DTPA restoration is available to prevailing consumer); Leifester v. Dodge

Country, Ltd., No. 03-06-00044-CV, 2007 WL 283019, at *3 (Tex. App.—Austin Feb. 1, 2007,

no pet.) (mem. op.) (noting that rescission is remedy available under DTPA claim and not

independent action). We overrule the Pates’ seventh and eighth issues because the Pates have no

surviving claim for which they could receive revocation, rescission, or restoration relief. In their

ninth issue, the Pates acknowledge that they had not offered to return any benefit they derived

from the travel trailer when the summary-judgment motion was filed, but assert that they later filed

an amended petition offering to do so. We need not consider the Pates’ ninth issue, which

supplements the arguments raised in issues seven and eight. See Tex. R. App. P. 47.1.

CONCLUSION

We conclude the trial court did not err when it granted Fun Town’s motion for

summary judgment on the Pates’ claims. We affirm the judgment of the trial court.

22

__________________________________________

Edward Smith, Justice

Before Chief Justice Byrne, Justices Kelly and Smith

Concurring and Dissenting Opinion by Justice Kelly

Affirmed

Filed: August 30, 2024

23