Rodger Peters v. Norwegian Cruise Line Limited D/B/A Norwegian Cruise Line

Opinion issued June 7, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00906-CV

RODGER PETERS, JR., Appellant

V.

NORWEGIAN CRUISE LINE LIMITED D/B/A NORWEGIAN CRUISE

LINE, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2000-39257-A

MEMORANDUM OPINION Appellant, Rodger Peters Jr., (1) appeals from a summary judgment in favor of

appellee, Norwegian Cruise Line Limited ("Norwegian"). Peters filed suit against

Norwegian, alleging causes of action for negligent misrepresentation, fraud,

fraudulent inducement, violations of the Deceptive Trade Practices-Consumer

Protection Act ("DTPA"), (2) breach of contract, unjust enrichment, and violations of

chapter 121 of the Human Resources Code ("Chapter 121") (3) in connection with

cruises that he took on two of Norwegian's ships. In his first two issues, Peters

contends that the trial court erred by granting summary judgment because

Norwegian's no-evidence motion did not adequately identify the challenged elements,

and he presented evidence that raised an issue of fact on those elements that were

properly challenged. In his remaining five issues, Peters asserts that he presented

evidence to raise an issue of fact on each of the elements in each of the claims

challenged in Norwegian's traditional summary judgment motion. We conclude that

the trial court improperly granted summary judgment on Peters's claims for negligent

misrepresentation, fraud, fraudulent inducement, DTPA, breach of contract and unjust

enrichment, as well as Peters's Chapter 121 claims based on Norwegian charging

Peters more for a room than non-mobility-impaired passengers. We further conclude

that the trial court properly granted summary judgment on Peters's Chapter 121

claims based on the accessibility of Norwegian's ships. We, therefore, affirm in part,

reverse in part and remand the cause. Background Due to an untreatable genetic condition, Peters required a wheelchair for

mobility. In 1998, Peters decided to take a cruise on Norwegian's ship Norwegian

Star ("the Star ") after he saw a poster for a "Texaribbean Cruise" in the window of

a travel agency. On at least 15 different occasions, Peters spoke with a travel agent,

Camille Jones, regarding the accessibility of the Star for physically disabled people.

Jones would try to get answers from Norwegian for Peters's specific questions and

then she would pass the information to Peters. Peters testified that Jones told him that

the elevators were "large enough for the wheelchairs to get in." According to Peters,

Jones informed him that "she was unsure" if the ship had public restrooms that could

accommodate his wheelchair, but that his bedroom would have a restroom that he

could use. Peters also asked about the accessibility of the ports of call and was told

"all three of them were accessible." Peters said that Jones specifically told him that

he would be able to go on a glass-bottom boat in Cozumel. Peters also read a

Norwegian brochure concerning the cruise that led him to believe that many of the

shore excursions were accessible.

Peters eventually purchased tickets for himself and three friends to take the

cruise on the Star . After he had purchased the tickets, Peters was notified by

Norwegian of certain requirements Norwegian had for disabled passengers. Peters

was notified he should travel in the same cabin with a non-mobility-impaired

companion who could "provide assistance in the unlikely event of an emergency."

Peters was also required to provide a letter from his doctor stating that he was "fit to

travel." Finally, Peters was required to sign a release, releasing Norwegian and its

medical staff of all liability.

When Peters took the cruise on the Star , the ship was not fully able to

accommodate his wheelchair. Although Jones had told Peters that the elevators were

"large enough for the wheelchairs to get in," Peters could not get his wheelchair into

the only elevator that could access the tenth deck, which resulted in his inability to

dine at the restaurant on that deck or take part in any of the activities there, and he

had to turn his wheelchair sideways to get into two other elevators. Peters could not

access the public restroom facilities and had to go to his room to access a restroom,

but that was consistent with what Jones had told him. Peters also had other problems

with access on the Star . Peters could not get to the sick bay because the only elevator

to it had a six-inch step and was too small for his wheelchair. Additionally, the sauna

and swimming pool were inaccessible to Peters due to the lip around the sauna and

the absence of a lift for the pool.

The ports of call visited by the Star were not fully accessible to Peters, unlike

what Jones had told him. Although Jones had said all the ports of call were

accessible, Peters was unable to go ashore in Roatan, Honduras because the dock had

steps and the gangplank from the ship was too narrow for his wheelchair. Two men

offered to carry Peters and the wheelchair off the ship, but Peters did not feel safe

with them carrying him. Additionally, Peters was unable to take the glass-bottom

boat excursion in Cozumel, unlike what Jones had specifically told him. Peters

explained that he was unable to go on the glass-bottom boat because the bus that

served as the only transportation from the ship to the boat was not accessible to

people in wheelchairs. Although he acknowledged that he could have paid a different

bus driver to pick him up to take him to the boat, Peters said he learned that the size

of the boat made it inaccessible to wheelchairs.

Despite these problems, Peters decided to take another Texaribbean Cruise in

September 2000, this time on the Norwegian Sea ("the Sea "). Peters asked his new

travel agent about accessibility on the Sea and was informed that "a lot of the

accessibility issues had been taken care of." Despite this assurance, Peters had

accessibility problems on the Sea . His room was too small, and he could only access

it after employees of the ship removed some of the furniture from the room. The

dining table was too low for him, but he acknowledges that he did not ask for

assistance in having the table adjusted. One of the lounges had no seating for

wheelchairs and Peters had to sit apart from his friends, in an aisle, where he felt like

he was in the way and was bumped once by someone. Peters did not ask to be moved

from that location, however. Peters could not access the computers in the internet

café because the tables were too close together, but he was able to send an email from

the internet café with the assistance of an employee. Like on the Star , the public

restrooms on the Sea were not accessible to Peters. Also like on the Star , Peters

could not access the tenth deck due to the size of the elevator, which denied him

access to the restaurant there and a tour of the navigation bridge. Of the three ports

of call for the Sea , Peters was only able to go ashore in one of them, Cozumel. In

Cancun, he was not allowed on the tender that provided transport to the shore,

because, he was told, it was too dangerous to take his electric wheelchair aboard the

tender. Peters also did not go ashore in Roatan because the ramp was again too

narrow.

This suit was originally filed by three other plaintiffs in August 2000. In

September 2001, Peters and another plaintiff joined the suit when the plaintiffs filed

their Third Amended Petition. Norwegian filed a motion for summary judgment in

July 2005, requesting summary judgment on all claims asserted by all plaintiffs. Days

after Norwegian filed its motion for summary judgment, all the plaintiffs except

Peters nonsuited their claims against Norwegian. Peters filed a response to

Norwegian's motion and Norwegian filed a reply to that response. On August 16,

2005, the trial court signed an order granting Norwegian's motion for summary

judgment without stating the grounds upon which it relied. Because some of the

other plaintiffs still had unresolved claims pending against another defendant, the trial

court later severed Peters's claims against Norwegian, making the summary judgment

final and appealable.

Summary Judgment Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett ,

164 S.W.3d 656, 661 (Tex. 2005). When, as here, a summary judgment does not

specify the grounds on which it was granted, we will affirm the judgment if any one

of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint

Venture , 145 S.W.3d 150, 157 (Tex. 2004). However, a court errs by granting

summary judgment on grounds that were not presented in the motion. Johnson v.

Brewer & Pritchard, P.C. , 73 S.W.3d 193, 204 (Tex. 2002) (citing Sci. Spectrum, Inc.

v. Martinez , 941 S.W.2d 910, 912 (Tex. 1997)).

Traditional summary judgment is proper only when the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to judgment

as a matter of law. Tex. R. Civ. P. 166a(c). The motion must state the specific

grounds relied upon for summary judgment. Id. A defendant moving for traditional

summary judgment must conclusively negate at least one essential element of each

of the plaintiff's causes of action or conclusively establish each element of an

affirmative defense. Sci. Spectrum, Inc. , 941 S.W.2d at 911 . In reviewing a

traditional summary judgment, we must indulge every reasonable inference in favor

of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve

any doubts in favor of the nonmovant. Valence Operating Co. , 164 S.W.3d at 661 .

In a no-evidence motion for summary judgment, after adequate time for

discovery, a party may move for summary judgment on the ground that there is no

evidence of one or more essential elements of a claim or defense on which the

opposing party has the burden of proof. Tex. R. Civ. P. 166a(i). The movant's no-evidence motion for summary judgment must specifically state the elements it

challenges on the grounds of no evidence. Id. ; Malcomson Rd. Util. Dist. v. Newsom ,

171 S.W.3d 257, 262 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). The trial

court must grant the motion unless the nonmovant produces summary judgment

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 in the light most favorable

to the nonmovant and disregarding all contrary evidence and inferences. Patriacca

v. Frost , 98 S.W.3d 303, 306 (Tex. App.--Houston [1st Dist.] 2003, no pet.). A trial

court improperly renders a no-evidence summary judgment if the nonmovant presents

more than a scintilla of probative evidence to raise a genuine issue of material fact.

Greathouse v. Alvin Indep. Sch. Dist. , 17 S.W.3d 419, 423 (Tex. App.--Houston [1st

Dist.] 2000, no pet.). More than a scintilla of evidence exists when the evidence

"would allow reasonable and fair-minded people to differ in their conclusions."

Forbes Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 172 (Tex. 2003).

Negligent Misrepresentation, Fraud, and Fraudulent Inducement

Norwegian filed a traditional and no-evidence motion for summary judgment

on Peters's claims for negligent misrepresentation, fraud, and fraudulent inducement .

Peters challenges the trial court's grant of Norwegian's motions on these claims.

A. No-Evidence Motion for Summary Judgment

In his first and second issues, Peters contends that the no-evidence motion for

summary judgment failed to properly identify the challenged elements and that he

presented evidence sufficient to raise a question of fact on those elements that were

challenged.

1. Elements Challenged in the No-Evidence Motion

The parties do not dispute that the only challenge asserted by Norwegian was

the "false representation" element of the negligent misrepresentation, fraud, and

fraudulent inducement claims. (4) The parties, however, dispute whether the no-evidence challenge that was limited to the element of "false representation," was

further limited to the sole event with the glass-bottom boat, as Peters contends, or

whether the challenge related to the entire element of "false representation," as

Norwegian asserts. Peters contends that because the motion for summary judgment

specifically mentioned the sole event of the glass-bottom boat, the no-evidence

motion challenged only the evidence pertaining to the claim that the glass-bottom

boat was not accessible, and not any other allegedly false representation. To support

his position, Peters cites to Hamlett , which states, "When it is not readily apparent to

the trial court that summary judgment is sought under rule 166a(i), the appellate court

will presume that the motion is filed under the traditional summary judgment rule and

analyze it accordingly." Hamlett v. Holcomb , 69 S.W.3d 816, 819 (Tex.

App.--Corpus Christi 2002, no pet.) However, after Hamlett , the Texas Supreme

Court stated, "We disapprove of decisions that hold or imply that, if a party attaches

evidence to a motion for summary judgment, any request for summary judgment

under Rule 166a(i) will be disregarded." Binur v. Jacobo , 135 S.W.3d 646, 651 (Tex.

2004). Rather, the Supreme Court of Texas held that "[i]f a motion clearly sets forth

its grounds and otherwise meets Rule 166a's requirements, it is sufficient." Id.

We conclude that the no-evidence motion concerning the element of "false

representation" was not limited to the event with the glass-bottom boat. See Tex. R.

Civ. P. 166a(i); Cmty. Initiatives, Inc. v Chase Bank of Tex. , 153 S.W.3d 270, 279

(Tex. App.--El Paso 2004, no pet.) (stating that no-evidence movant need not attack

specific evidentiary components that make up element of claim). The parties do not

dispute that Norwegian's motion asserts there is no evidence of the false

representation element with respect to Peters's claims for negligent misrepresentation,

fraud, and fraudulent inducement. We hold that the element of false representation

was challenged in the no-evidence motion and that any evidence pertinent to that

element could be properly considered. We overrule Peters's first issue as it pertains

to the false representation element of his negligent misrepresentation, fraud, and

fraudulent inducement claims.

2. Evidence of "False Representation" Presented by Peters

In his second issue, Peters asserts that the trial court erred by granting summary

judgment on his negligent misrepresentation, fraud, and fraudulent inducement claims

because he produced more than a scintilla of evidence on the element of "false

representation." On appeal, as in his response to Norwegian's no-evidence motion

for summary judgment, Peters contends that he presented evidence of Norwegian's

false representation that the Star was accessible to people using wheelchairs and that

all three ports of call "were accessible." Viewing the evidence in a light most

favorable to Peters, the evidence shows that Jones (5) told him that the Star was

accessible to him and his wheelchair. (6) Although Jones had informed Peters that all

of the ports were accessible, Peters was unable to go ashore in Roatan, because the

dock had steps and the gangplank from the ship was too narrow for his wheelchair.

Norwegian responds that two men offered to carry Peters and the wheelchair off the

ship, and that it was physically possible for him to leave the ship at the port in

Roatan. We are required, however, to view the evidence in a light most favorable to

Peters, who testified that he did not feel it was safe for the men to carry him down the

narrow gangplank of the ship. We also note that Peters presented other evidence that

the only elevator able to access the tenth deck was too small for his wheelchair and

thus the restaurant and events on the tenth deck were inaccessible. In addition, Peters

could not access the sauna, pools, and sick bay. Viewing the evidence in a light most

favorable to Peters, the evidence shows that Jones, who was relaying information

given to her by Norwegian, made false statements concerning the accessibility of the

ship and ports.

Peters produced some evidence that he was not able to go ashore in all the ports

and that the public restrooms, swimming pool, the entire tenth deck, as well as other

facilities, were not accessible. We conclude that the evidence "would allow

reasonable and fair-minded people to differ in their conclusions" regarding whether

Norwegian made false representations to Peters regarding the accessibility of the Star .

See John v. Marshall Health Servs., Inc. , 91 S.W.3d 446, 450 (Tex. App.--Texarkana

2002, pet. denied) (finding some evidence of false representation where plaintiff

testified that "he was given positive assurances about each of his concerns" and that

these assurances were false). Having determined that there is an issue of fact

concerning statements related to Peters about the Norwegian cruise, we do not reach

his other assertions that false statements were made to him about the glass-bottom

boat, the accessibility of the ports on his Sea cruise, and the accessibility of the Sea

as compared to the Star. Because Peters presented some evidence in response to the

no-evidence challenge on the element concerning false statement, we conclude that

the trial court erred by rendering the no-evidence motion for summary judgment in

favor of Norwegian. We sustain Peters's second issue as it relates to his negligent

misrepresentation, fraud, and fraudulent inducement claims.

B. Traditional Motion for Summary Judgment

In his third and fourth issues, Peters contends that the trial court erred by

granting traditional summary judgment on his fraud, fraudulent inducement, and

negligent misrepresentation claims because Norwegian did not conclusively establish

that there is no genuine issue of material fact regarding one or more of the elements

of the claims. The only elements discussed by Norwegian in the motion for summary

judgment, other than the no-evidence point regarding false representations, are the

elements of reliance and injury, which are common to these causes of action.

1. Reliance

On appeal, as in its motion for summary judgment, Norwegian contends that

Peters did not rely on the statements about the cruises in making his decision to go

on the cruises. Norwegian points to Jones's deposition testimony that Peters received

the brochure with information on the glass-bottom boat excursion after he purchased

his tickets. However, Jones's testimony was that the brochure "might have been" in

the packet that Norwegian sent after the tickets were purchased. Jones's testimony

does not conclusively show that the brochure was not used by Peters in his decision

to take the cruise.

Norwegian further contends that because Peters conceded that he would take

another cruise on either the Sea or the Star , he cannot show that he relied on the

statements about the cruises. However, Peters's statement--made after he had filed

suit for the cruises on the Sea and the Star --does not conclusively negate Peters's

reliance on past representations by Norwegian. Peters was concerned with

accessibility onboard the ships and his ability to go ashore. Before purchasing his

tickets, he repeatedly asked questions relating to those concerns. Only after he had

received answers assuring him of his ability to access the ships and go ashore did he

purchase tickets.

Norwegian further asserts that Peters acknowledged that the travel agent never

made any assurances about transportation to the on-shore excursions and was warned

by Norwegian that he might need individual transportation. Although Norwegian

challenges the evidence relating to the on-shore excursions, it has not challenged the

other false statements that Peters contends were made when he purchased the tickets.

Peters asserts that he specifically asked his travel agents regarding accessibility

before he purchased either cruise, which indicates that he was concerned about that

issue in making his decision to go on the cruises. Jones, one of Peters's travel agents,

testified that going to the ports was "part of what [Peters] was looking forward to,"

and that the ports and the shore excursions were also a vital part of purchasing the

cruise. Jones acknowledged that she understood that accessibility was of particular

concern to Peters. Peters also produced the deposition testimony of Ursula Schleider,

the Director of Marketing Communications for Norwegian. Schleider testified,

"When we market the product, we speak about what the ship is and where that ship

sails, I think that is--what encourages a person to purchase or not purchase the cruise

. . . is on the ship and where it sails to." She also testified that "it's the destination

that sells the cruise," and that "[g]oing ashore would be important." Arturo Guerrero,

the Vice-President of Hotel Operations for Norwegian, also testified that the ability

to visit the ports of call on a cruise was an important part of the decision to purchase

a ticket.

Viewing the evidence in a light most favorable to Peters, see Patriacca , 98

S.W.3d at 306 , some evidence shows that Peters relied on the false representations

concerning the accessibility of the ships. We conclude that summary judgment on the

element of reliance was improper. See Forbes Inc. , 124 S.W.3d at 172 ; Valence

Operating Co. , 164 S.W.3d at 661 .

2. Injury

Norwegian asserts in its motion for summary judgment that because Peters was

not "required to pay money for on shore excursions that [he] could not participate in,"

he suffered no economic injury. Although Norwegian correctly notes that Peters did

not pay for excursions he did not participate in, those damages are not claimed by

Peters. Peters claims damages for the purchase price of the tickets (7) and his lost

vacation time he used to take the cruises. In addition to the false statements about the

excursions, Peters also asserts that he was damaged by relying on other allegedly

false representations about the accessibility of the ships. Norwegian did not address

these other allegedly false representations in its motion for summary judgment. We

conclude that Norwegian did not conclusively negate the injury element of Peters's

claims. See Johnson , 73 S.W.3d at 204 (holding trial court could not have granted

summary judgment on grounds not raised). Because we conclude that Norwegian

failed to conclusively negate the elements of reliance and injury, summary judgment

was improper on Peters's claims for negligent misrepresentation, fraud, and

fraudulent inducement. See Martinez , 941 S.W.2d at 911 . We sustain Peters's third

and fourth issues.

DTPA

As part of his first issue, Peters contends that Norwegian's no-evidence motion

on his DTPA claims is limited to whether there is no evidence that Norwegian

engaged in false, misleading or deceptive acts. (8) Specifically, Norwegian moved for

no-evidence summary judgment on the grounds that there was "no evidence that

[Norwegian] made false representations about the cruises within the scope of

§ 17.46(b)(5) (9) and (b)(7)," (10) and that there was no evidence that Norwegian "intended

to induce disabled persons into buying tickets or that plaintiffs would not have taken

their cruises had additional detail been included" with respect to the section

17.46(b)(24) claim. (11) Norwegian agrees that these are the elements that it challenged

in its no-evidence motion for summary judgment. Because the parties agree that the

no-evidence motion only challenged these elements, we sustain Peters's first issue as

it relates to his DTPA claims.

As part of his second issue, Peters contends that the trial court erred by

granting the no-evidence motion for summary judgment on his DTPA claims that rely

on the same representations alleged for his negligent misrepresentation, fraud, and

fraudulent inducement claims. As discussed above, Peters testified that he was told

that the Star and the ports that it visited were accessible, but he was not able to access

the entire ship or all the ports. Viewing Peters's testimony in a light most favorable

to Peters, we conclude that a fact issue exists as to whether Norwegian made

representations that fall within the scope of sections 17.46(b)(5) and (7). See John ,

91 S.W.3d at 450 .

With respect to the failure to disclose under section 17.46(b)(24), Norwegian

points to its brochure that had a disclaimer about shore excursions and it asserts that

it did not provide "highly specific information about the on-shore excursions and the

accessibility of certain features on the ships." Although the brochure may have

included a disclaimer, Norwegian fails to address the other grounds for the DTPA

claim that are premised on the representations made by Jones concerning the

accessibility of the ships and the ports. Peters produced evidence that there was

limited accessibility of the facilities on board the Star , that he was unable to go

ashore in three of the ports that were visited on the two cruises, and that in deciding

to go on the cruises, he relied upon the information he received regarding

accessibility, particularly as conveyed to him by Jones. Viewing the evidence in a

light favorable to Peters, some evidence shows that Norwegian failed to fully disclose

information to Peters that was intended to induce Peters into purchasing tickets for

the cruises. See SAS & Assocs., Inc. v. Home Mktg. Servicing, Inc. , 168 S.W.3d 296,

302 (Tex. App.--Dallas 2005, pet. denied) (finding some evidence of

misrepresentation by failure to disclose where defendant knew of problems with

premises but did not disclose problems). Thus, even if Norwegian is correct in its

assertion regarding the shore excursion brochure, summary judgment was not proper

on Peters's failure-to-disclose DTPA claim because Norwegian did not conclusively

negate this element of Peters's claim.

We conclude that the trial court erred by rendering the no-evidence motion in

favor of Norwegian because Peters presented some evidence on the challenged

elements. We sustain this portion of Peters's second issue. Because the traditional

motion for summary judgment asserted by Peters also concerns the same

representations discussed above concerning the DTPA claims, we also sustain his

fifth issue that challenges the trial court's rendition of traditional summary judgment

on the DTPA claims.

Breach of Contract Concerning Peters's first issue that challenges the no-evidence motion for

summary judgment for the breach of contract claim, on appeal the parties agree that

the only element challenged is the element of breach. We therefore sustain Peters's

first issue as it relates to his breach of contract claim.

In his second issue, Peters contends that summary judgment was improper on

the element of breach of contract because he was not taken to the ports of call, as

promised in the contract. (12) Peters points to evidence that he was unable to go ashore

in Roatan on both cruises and in Cancun on his cruise on the Sea , in contravention

of what was promised in the contract. As proof that Norwegian was bound to take

him to various ports during his two cruises, Peters identifies the portion of paragraph

one of the contract that states, "All the terms and provisions of all sides of this

Contract . . . are a part of this Contract." Peters contends that this incorporated the

itinerary of the portion of the form describing the various ports and that Norwegian

therefore had promised to take him to those ports when it promised to provide

"transportation as specified herein."

In response to Peters's claim that Norwegian failed to take him to ports of call,

Norwegian points to paragraph 27 of the contract which provides, in part,

Handicapped persons are advised that certain international safety

requirements and U.S. Coast Guard Regulations may cause difficulty for

mobility-impaired persons or persons with severely impaired sight

and/or hearing. . . . [Norwegian] reserves the right to refuse or deny

participation in any activities or programs either aboard the vessel or

onshore at any port of call, which are sponsored or promoted by

[Norwegian] to any passenger who has, in the sole judgment of

[Norwegian], past or present medical conditions that may present risks

in such activity and programs, including, but not limited to participation

in Dive-in, Sail-on and Water-Bike programs on or off the vessel.

Peters challenges the applicability of paragraph 27 by asserting that leaving the ship

is not a "risky" activity; it is a necessary activity because all people who enter a cruise

ship must at some point disembark. Peters also contends that the only reason that

leaving the ship may have been risky to Peters was due to Norwegian's "providing

inferior and unsafe ramps and tenders for disembarkation."

We conclude that the sentence in paragraph 27 that warns that mobility-impaired persons may have difficulty on the cruise is not pertinent to whether the

agreement was breached here because Peters is not complaining that something was

difficult, he is asserting that he was not provided a visit to the ports, as promised. We

also conclude that the agreement, which allows Norwegian "to refuse or deny

participation in any activities or programs" that in its "sole judgment . . . may present

risks in such activity and programs" does not conclusively establish that the

agreement was not breached by the failure to allow Peters to visit the ports of call.

Peters presented evidence that Norwegian represented to him that someone with his

limited mobility would have available the ship, ports, and shore excursions, and

therefore, there is an issue of fact whether in the sole judgment of Norwegian,

disembarking at the ports was a risky activity that is not allowed for someone who is

mobility impaired. We conclude that Peters has produced some evidence that

Norwegian breached the contract by failing to give Peters access to the ports of call.

See See SAS & Assocs., Inc. , 168 S.W.3d at 302 . Therefore, the no-evidence

summary judgment on the element of breach of contract was improper. (13) We sustain

Peters's second issue with respect to his breach of contract claim. Having held that

there is an issue of fact on the no-evidence motion for summary judgment on the

breach of contract claim, we also conclude that the trial court erred by granting the

traditional summary judgment that is premised on the same grounds. We therefore

sustain Peters's sixth issue concerning the breach of contract claim.

Unjust Enrichment

In his sixth issue, Peters also challenges the trial court's traditional summary

judgment on his unjust enrichment claim. (14) Norwegian moved for summary judgment

on the unjust enrichment claim by asserting that Peters could not prevail on the unjust

enrichment claim because there was a contract between the parties. (15)

Peters

responded in the trial court, as in this appeal, that he produced some evidence that the

contract was a contract of adhesion and was unconscionable, and, thus, his unjust

enrichment claim was a viable alternative to his breach of contract claim.

An adhesion contract is a "standardized contract form for consumer goods and

services that are offered on a 'take it or leave it' basis without affording the consumer

a realistic opportunity to bargain and under such conditions that the consumer cannot

obtain the desired product or services except by acquiescing." In re Media Arts

Group, Inc. , 116 S.W.3d 900 , 911 n.19 (Tex. App.--Houston [14th Dist.] 2003, orig.

proceeding) (emphasis deleted) (quoting In re H.E. Butt Grocery Co. , 17 S.W.3d 360 ,

371 n.8 (Tex. App.--Houston [14th Dist.] 2000, orig. proceeding)). An adhesion

contract may be void if it is also unconscionable. Id. at 910 (citing In re Oakwood

Mobile Homes, Inc. , 987 S.W.2d 571, 574 (Tex. 1999) (orig. proceeding)). A

contract may be found unconscionable if it contains "not only one-sided terms, but

whether, given the parties' general commercial background and the commercial needs

of the particular trade or case, the terms are so one-sided that they are unconscionable

under the circumstances existing when the parties made the contract." Id. at 912.

About two days before the cruise was set to depart, and after Peters had paid

for the cruise in full, he was presented with a form contract that recited that it was

binding whether or not signed by Peters. The form contract said that "[t]he fare

includes only the transportation as specified herein, full board, ordinary ship's food."

The remainder of the contract, paragraphs two through 28, serve to limit Norwegian's

liability or to impose further conditions and restrictions upon the passenger. For

example, paragraph 12 provides that in the event of the passenger's death, the

passenger's heirs or representatives are limited to a recovery of $5,000, even if

Norwegian is liable for the death. Paragraph two states that Norwegian

reserves the right to cancel any scheduled call at any port for any reason

at its option at any time whether before, during or after sailing of the

vessel, without previous notice to the passenger, and without any

liability to the passenger, for any loss, damage or delay whatsoever,

however consequential.

Paragraph 25 allows Norwegian to "increase fares without prior notice," requiring the

passenger either to accept the increased fair or cancel without penalty, as long as that

is done one month before departure, which would have been impossible here since

Peters only received the agreement a few days before the ship departed. Paragraph

28 purports to limit all suits against Norwegian to Dade County Florida, although the

cruises taken by Peters did not depart from, return to, or have any other connection

to Florida. Viewing the evidence in a light most favorable to Peters, the nonmovant,

the evidence shows that Norwegian gave Peters a one-sided form contract that Peters

had no opportunity to negotiate mere days before his cruise began. We conclude that

there was a fact issue whether the contract was a contract of adhesion and

unconscionable and, therefore, unenforceable. See Carnival Cruise Lines, Inc. v.

Shute , 499 U.S. 585, 593 , 111 S. Ct. 1522, 1527 (1991) ("Common sense dictates that

a ticket of this kind will be a form contract the terms of which are not subject to

negotiation, and that an individual purchasing the ticket will not have bargaining

parity with the cruise line."). Because Peters has produced evidence to show that

there was no enforceable contract between the parties, Norwegian was not entitled to

summary judgment on Peters's unjust enrichment claim. We sustain Peters's sixth

issue concerning the unjust enrichment claim.

Chapter 121 Peters's claims under Chapter 121 can be separated into two types. First,

Peters alleges that Norwegian violated Chapter 121 because it treated disabled

passengers differently than other passengers. Peters also contends that he was

discriminated against because Norwegian failed to comply with the Texas

Architectural Barriers Act (16) ("TABA") and the Texas Accessibility Standards (17)

("TAS").

Chapter 121 prohibits discrimination against persons with disabilities.

Specifically, section 121.003 provides:

(a) Persons with disabilities have the same right as the able-bodied

to the full use and enjoyment of any public facility in the state.

(b) No common carrier, airplane, railroad train, motor bus, streetcar,

boat, or other public conveyance or mode of transportation

operating within the state may refuse to accept as a passenger a

person with a disability 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 of an assistance animal, wheelchair,

crutches, or other device used to assist a person with a disability

in travel.

. . . .

(d) The discrimination prohibited by this section includes a refusal to allow

a person with a disability to use or be admitted to any public facility, a

ruse or subterfuge calculated to prevent or discourage a person with a

disability from using or being admitted to a public facility . . .

Tex. Hum. Res. Code Ann. § 121.003 (Vernon 2001).

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

Peters's first issue asserts that Norwegian did not move for no-evidence

summary judgment on his Chapter 121 claims except for specified elements.

Norwegian's motion for summary judgment states, "Plaintiffs Have No Evidence That

[Norwegian] Charged Them More Than Non-Disabled Passengers." We conclude

that Norwegian moved for summary judgment on the ground that there was no

evidence that Norwegian required Peters "to pay an additional fare because of his . . .

use of [a] wheelchair . . . ." Tex. Hum. Res. Code Ann. § 121.003 (b) (Vernon 2001).

We sustain Peters's first issue as it relates to his Chapter 121 claims. (18)

As part of his second issue, Peter contends that Norwegian's no-evidence

summary judgment was not properly granted because he raised a fact issue regarding

his Chapter 121 claims. In support of his claim that he was charged more than a non-mobility-impaired passenger, Peters points to a brochure published by Norwegian

detailing its Carribean and Bermuda cruises that states, "The handicapped rooms are

slightly more expensive than other inside staterooms because they are considerably

larger, but less expensive than the least expensive outside stateroom (i.e, room with

a view)." Norwegian responds that the brochure plainly states that it does not charge

"any additional premiums to disabled passengers."

We conclude that Peters produced some evidence that he was charged more

than a non-mobility-impaired passenger, in violation of Chapter 121, which disallows

Norwegian from requiring Peters "to pay an additional fare because of his . . . use of

[a] wheelchair . . . ." Tex. Hum. Res. Code Ann. § 121.003 (b). Viewing the

evidence in a light most favorable to Peters, the non movant, the evidence shows that

he needed a larger room to accommodate his wheelchair and that Norwegian charged

more for that room. See, e.g . , Indep. Living Res. v. Or. Arena Corp. , 982 F. Supp.

698, 717-18 (D. Or. 1997) (holding that although wheelchair seating takes more

space than conventional seating, operator of arena was prohibited from charging

"higher price commensurate with the additional space that is consumed."). (19) Under the policy of Chapter 121, like the ADA, disabled individuals are given

the right to full enjoyment of public facilities. (20) Peters's evidence that he was charged

more for his room that was larger only to accommodate his wheelchair is some

evidence that he was charged more due to his disability. See id. We sustain Peters's

second issue as it relates to his Chapter 121 claim under 121.003(b).

B. Traditional Motion Concerning Whether the Ship was Renovated

In his seventh issue, Peters contends that the trial court erred by granting

summary judgment on his Chapter 121 claims because Norwegian was not entitled

to traditional summary judgment. Norwegian moved for summary judgment on

Peters's claims of accessibility on the Star and the Sea on the grounds that:

(1) the two ships were built before January 1, 1992, and therefore the

TABA and TAS do not apply;

(2) because the State has not promulgated any regulations governing

passenger cruise ships to implement the TABA, Norwegian could

not be in violation; and

(3) the legislature "did not intend to require foreign-flagged ships

that pick up passengers at Texas ports (but do not travel within

Texas) to make physical alterations to their ships in order to

accommodate disabled individuals."

The provisions of the TABA apply to "a privately funded building or facility

that is defined as a 'public accommodation' by Section 301, Americans with

Disabilities Act of 1990 ( 42 U.S.C. Section 12181 ), and it subsequent amendments,

and that is constructed, renovated, or modified on or after January 1, 1992." (21) Tex.

Gov't Code Ann. § 469.003 (a)(4) (Vernon Supp. 2006). The TAS further stated that

they apply to buildings and facilities covered by the TABA " during the design,

construction, and alteration of such buildings." TAS Rule 1.1. An "alteration" is

defined as a change to a covered building or facility

that affects or could affect the usability of the building or facility or part

thereof. Alterations include, but are not limited to, remodeling,

renovation, rehabilitation, reconstruction, historic restoration, changes

or rearrangement of the structural parts or elements, and changes in or

rearrangements in the plan configuration of walls and full-height

partitions. Normal maintenance, reroofing, painting or wallpapering, or

changes to mechanical and electrical systems are not alterations unless

they affect the usability of the building or facility.

Id. Rule 3.5.9.

It is undisputed that the Sea and the Star were built before January 1, 1992.

Therefore, the TABA and TAS do not apply unless they were "renovated" or

"modified," see Tex. Gov't Code Ann. § 469.003 (a)(4), or "altered," see TAS Rule

1.1, after that date. Norwegian contends that although the ships did have some work

done to them, it was not the type of "alteration" or "modification" that would trigger

the applicability of TABA or TAS.

Peters identifies the affidavit of Sven-Erik Eklund as some evidence that the

Sea was covered by the TABA and TAS. Eklund is a Director-Superintendent

Engineer for Norwegian. In his affidavit he avers,

Between January 1, 1992 and September 1, 2000 the only significant

change or modification of the Norwegian Sea reflected in Norwegian

Cruise Line's records was the conversion of cabins 6001, 6201, 7001,

and 7201 from Deluxe Cabins into Owner's suites and the conversion

of cabins 8000, 8001, and 8200 from Deluxe Cabins in Superior Deluxe

suites. These remodeling efforts did not involve removal of any walls

or any significant structural changes but did involve major refurbishing

of those cabins. . . . Norwegian Cruise Line's records reveal no

structural changes were done on the Norwegian Star between January 1,

1992 and [the time it left Norwegian's fleet].

Peters also identified an excerpt from the affidavit of Norwegian's witness James

Dolan, a consultant specializing in shipping and maritime issues. Dolan stated, "I

reviewed the [ Sea 's] original plans and compared them to the current plans and did

not find any evidence of substantial conversion or change since the ship was built in

1988." Peters further relies on Bakke's deposition. Bakke testified, in response to

a question asking when one of Norwegian's ships "last renovated," that Norwegian's

ships "go to dry-dock two times every five years" and that both the Sea and the Star

were in dry-dock at least once each in the late 1990s. Finally, Peters identifies a press

release that states that, due to an onboard fire, the Sea underwent "a multi-million

dollar refurbishment project" in January 2000.

Peters contends that because Eklund stated that several cabins on the Sea had

been remodeled, this brings at least those cabins within the TABA and the TAS. See

TAS Rule 3.5.9 ("alteration" includes "remodeling"). Peters also contends that

Dolan's affidavit stating there was no "substantial conversion or change" to the Sea

implicitly recognizes some change. Peter asserts that Bakke's testimony regarding

ships being placed in dry-dock, in response to a question about "renovations,"

coupled with his testimony that both ships at issue have been in dry-dock since the

effective date of the TABA and the TAS is some additional evidence that the TABA

and TAS apply to the ships. See TAS Rule 3.5.9 ("alteration" includes "renovation").

Finally, Peters contends that Norwegian's press release regarding the Sea going in

dry-dock for a "multi-million dollar refurbishment project" is some evidence that the

TABA and TAS apply.

Eklund's affidavit also describes the upgrades to only seven of the Sea 's many

cabins as a "refurbishment." He also specifically stated that no walls were moved.

Dolan's affidavit, even if construed as Peters contends, indicates only that some

"change" was made to the Sea . Bakke's response to a question about renovations

mentioned only regular dry-dock visits. In the same response, Bakke also went on

to mention changing "carpet and upholstery." The press release that Peters identified

also uses the word "refurbishment." The press release further describes the dry-dock

changes as a "facelift." In detailing the "many enhancements," the press release

identifies new window drapes, carpet, curtains, upholstery, bedspreads, bedskirts, and

throw pillows.

Under the TAS, the terms "renovation" and "remodeling" further define an

"alteration." Id. The terms "refurbishment," "facelift," and "enhancement" do not.

Id. Further, a "change" may be an "alteration" if it is a change "of the structural parts

or elements" or "in the plan configuration of walls." Id. The TAS does not apply to

"[n]ormal maintenance, reroofing, painting or wallpapering." Id. Further "changes

to mechanical and electrical systems are not alterations unless they affect the usability

of the building or facility." Id.

The "changes" and "renovations" that Peters identifies do not affect the

usability of the ships or appear to be of the type covered by the TABA and TAS. No

walls were moved and there is no other evidence of structural changes that would

affect the usability or accessibility of the ships. Under this record, we cannot

conclude that Peters has raised a fact issue regarding whether the ships at issue were

"altered" after January 1, 1992, such that the TABA and TAS would apply. (22) We

overrule Peters's seventh issue.

Conclusion

We affirm the judgment of the trial court regarding Peters's Chapter 121 claims

based on violations of the Texas Architectural Barriers Act and the Texas

Accessibility Standards. We reverse the trial court's judgment in all other respects

and remand this cause for further proceedings not inconsistent with this opinion.

Elsa Alcala

Justice

Panel consists of Justices Taft, Alcala, and Hanks.

1. Rodger Peters Jr. passed away in 2004. On motion by Peters's parents, the trial court

substituted them as plaintiffs as representatives of Peters's estate. On appeal, both

parties refer to Peters as the appellant, as will we.

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

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

4. The elements of fraud are (1) that a material representation was made; (2) the

representation was false; (3) when the representation was made, the speaker knew it

was false or made the representation recklessly, without any knowledge of the truth,

and as a positive assertion; (4) the speaker made the representation with the intent that

the other party act upon it; (5) the other party acted in reliance on the representation;

and (6) that party thereby suffered injury. In re FirstMerit Bank , 52 S.W.3d 749, 758

(Tex. 2001). To prevail on a fraudulent inducement claim, "the elements of fraud

must be established as they relate to an agreement between the parties." Haase v.

Glazner , 62 S.W.3d 795, 798-99 (Tex. 2001). The elements of negligent

misrepresentation are (1) the defendant made a representation in the course of its

business, or in a transaction in which it had a pecuniary interest; (2) the defendant

supplied false information for the guidance of others in their business; (3) the

defendant did not exercise reasonable care or competence in obtaining or

communicating the information; and (4) the plaintiff suffered pecuniary loss by

justifiably relying on the representation. Fondren Constr. Co. v. Briarcliff Hous. Dev.

Assocs., Inc. , 196 S.W.3d 210, 218 (Tex. App.--Houston [1st Dist.] 2006, no pet.).

5. Although Norwegian did not make these alleged misrepresentations directly to Peters,

a party may be liable for a misrepresentation made indirectly to a third person "if the

person making the misrepresentation had intent or knowledge that it should be

exhibited or repeated to a third person and intended or had reason to expect the third

person would act or refrain from acting in reliance upon the misrepresentation."

Burroughs v. APS Int'l, Ltd. , 93 S.W.3d 155, 162 (Tex. App.--Houston [14th Dist.]

2002, pet. denied).

6. In its brief, Norwegian also asserts that any statement made by Peters's travel agents

are inadmissible hearsay. Norwegian raised this objection before the trial court, but

did not obtain a ruling. See Blancett v. Lagniappe Ventures, Inc. , 177 S.W.3d 584,

589 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (noting that written ruling on

objection to summary judgment evidence needed to preserve error); Rogers v. Cont'l

Airlines, Inc. , 41 S.W.3d 196, 200 (Tex. App.--Houston [14th Dist.] 2001, no pet.)

(same).

7. Peters paid for his own tickets as well as tickets for his traveling companions,

including his attendant that assisted him because of his impaired mobility.

8.

The elements of a DTPA claim are (1) the plaintiff is a consumer, a person who seeks

or acquires goods or services by purchase or lease, (2) the defendant engaged in false,

misleading, or deceptive acts, and (3) the acts constituted a producing cause of the

consumer's damages. Tex. Bus. & Com. Code Ann. §§ 17.45 (4), 17.50(a) (Vernon

2002 & Supp. 2006); Gill v. Boyd Distribution Ctr. , 64 S.W.3d 601, 604 (Tex.

App.--Texarkana 2001, pet. denied).

9. Under section 17.46(b)(5) of the DTPA, a deceptive trace practice is "representing

that goods or services have sponsorship, approval, characteristics, ingredients, uses,

benefits, or quantities which they do not have or that a person has a sponsorship,

approval, status, affiliation, or connection which he does not." Tex. Bus. & Com.

Code Ann. § 17.46 (b)(5) (Vernon Supp. 2006).

10. Under section 17.46(b)(7) of the DTPA, a deceptive trade practice is "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)(7) (Vernon Supp.

2006).

11. Under section 17.47(b)(24) of the DTPA, a deceptive trade practice is "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." Id. § 17.46(b)(24) (Vernon Supp. 2006).

12. Norwegian does not challenge the existence of a contract. The purported contract

between the parties is the "Contract of Passage." Peters received the contract and his

tickets after he paid for his tickets, a few days before his cruise. The contract was part

of a form that included his reservation number and the itinerary for the cruise, such

as arrival and departure times from the various ports. The contract consists of 28

numbered paragraphs covering the bottom one-third of the front of the itinerary and

almost the entire rear. The first paragraph of the contract provides,

This passenger ticket contract (hereafter "Contract") constitutes a

contract of passage between [Norwegian] and the passenger or

purchaser (whether or not signed by or on his behalf). All the terms

and provisions of all sides of this Contract, including all of the

following matter printed below, are a part of this Contract to which the

passenger and/or purchaser, both on his/her behalf and on behalf of any

other person or persons, including children, for whom this ticket is

purchased, acknowledge and agree to be bound thereby by accepting

this contract or transportation from [Norwegian]. The fare includes

only the transportation as specified herein, full board, ordinary ship's

food, but does not include spirits, wine, beer, sodas or mineral waters.

This Contract shall be the entire agreement between the parties and

supersedes all representations or conditions contained in [Norwegian's]

advertisements, notices, brochures or other literature and all promises

and agreements made or claimed to have been made to or with the

passenger or anyone representing him by any party.

13. Peters also asserts that Norwegian breached the contract by not providing "full board"

because he could not access the restaurant on the tenth deck of either ship and his

assigned dinner table was too low. We need not reach whether the contract was

breached on this ground because we have determined that there is an issue whether

the contract was breached on the ground pertaining to the visits to the ports.

14. On appeal, the parties agree that Norwegian did not assert a no-evidence motion for

summary judgment on Peters's claims for unjust enrichment. We sustain Peters's first

issue that contends that Norwegian did not assert a no-evidence motion for summary

judgment for the unjust enrichment claim.

15. An unjust enrichment claim requires a plaintiff to show that the defendant received

a benefit from the plaintiff through fraud, duress, or the taking of an undue advantage

and it would be unjust for the defendant to retain the benefit. See Heldenfels Bros.,

Inc. v. City of Corpus Christi , 832 S.W.2d 39, 41 (Tex. 1992).

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

17. The Texas Accessibility Standards ("TAS") were adopted by the Texas Department

of Licensing and Regulation and compliance with TAS is mandated by the

Department's regulations. 16 Tex. Admin. Code §§ 68.10 (29), 68.20 (2007). The

TAS are available on the Department's website. See Texas Department of Licensing

and Regulation, http://www.license.state.tx.us/ab/tas/tascomplete.pdf (last visited

June 1, 2007).

18. Peters asserted other challenges to the trial court;'s grant of Norwegian's no-evidence

motion on his Chapter 121 claims, identifying fact issues relating to the requirements

that he submit forms that other passengers were not required to submit and that he

travel with a non-disabled companion, but we need not reach those points because

we conclude that there is an issue of fact on whether he was charged an additional

fare due to his disability.

19. The court relied on the regulations enacted by the Department of Justice to implement

the ADA and a "Technical Assistance Manual" promulgated by the Department. See

28 C.F.R. § 36.301 (c); Department of Justice, Americans with Disabilities Act Title

Three Technical Assistance Manual §§ III-4.1400, 4.4600 (1993 & Supp. 1994)

available at http://www.usdoj.gov/crt/ada/taman3.html and

http://www.usdoj.gov/crt/ada/taman3up.html (last visited June 1, 2007) .

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

A public accommodation may not impose a surcharge on a particular

individual with a disability or any group of individuals with disabilities

to cover the costs of measures, such as the provision of auxiliary aids,

barrier removal, alternatives to barrier removal, and reasonable

modifications in policies, practices or procedures, that are required to

provide that individual or group with the nondiscriminatory treatment

required by the Act or this part.

28 C.F.R. § 36.301 (c)

The Department of Justice's ADA Title Three Technical Assistance Manual provides

guidance in interpreting and applying the ADA. Section III-14.4600, pertaining to

seating in assembly areas of public accommodations contains the following question-and-answer example:

May a public accommodation charge a wheelchair user a higher fee to

compensate for the extra space required to accommodate a wheelchair

or for storing or retrieving a wheelchair? No. People with disabilities

may not be subjected to additional charges related to their use of a

wheelchair.

Department of Justice, Americans with Disabilities Act Title Three Technical

Assistance Manual § III-4.4600 (1993 & Supp. 1994).

20. The policy of Chapter 121 is "to encourage and enable persons with disabilities to

participate fully in the social and economic life of the state, to achieve maximum

personal independence . . . and to otherwise fully enjoy and use all public facilities

available within the state." Tex. Hum. Res. Code Ann. § 121.001 (Vernon 2001).

The ADA states that "the Nation's proper goals regarding individuals with disabilities

are to assure equality of opportunity, full participation, independent living, and

economic self-sufficiency for such individuals." 42 U.S.C.S. § 12101 (a)(8)

(LexisNexis 2003).

21. Neither party disputes that a cruise ship is a public accommodation. See Spector v.

Norwegian Cruise Line Ltd. , 545 U.S. 119, 129 , 125 S. Ct. 2169, 2177 (2005) (stating

that cruise ships fall within definition of "public accommodation" of the Americans

with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. )

22. Because we conclude that summary judgment was proper on the ground that the ships

were not altered after January 1, 1992, we do not address Peters's claims that

summary judgment was improper on the grounds of a lack of regulations that

expressly govern cruise ships or the legislature's intent to affect foreign-flagged

vessels.