Texas Lawyers Representing Families In Child Support Litigation

San Antonio Lawyers has been representing families with their legal problems in Texas for years. We have reprented individuals and companies alike, in their legal matters and we have done it with respect and dignity.

When we are in court, Lawyers in San Antonio Texas we stive to give our clients the best legal representation money can buy. Here is an example of a response filed by one of our attorneys in a sucessful litigation for our client.

seeker for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985).

When evaluating a traditional motion for summary judgment, the court must:

A. Take evidence favorable to the non-movant as true;
B. Indulge every reasonable inference in favor of the non-movant; and
C. Resolve all doubts about the existence of a genuine issue of material fact against the movant. Id at 549.

Pursuant to Tex. R. Civ. P. Rule 166a(i), the court will grant a no-evidence summary judgment only if there is either: (a) complete absence of summary judgment evidence proffered to prove the challenged element; (b) the court is barred by the rules of law or evidence from giving weight to the only summary judgment evidence offered to prove the challenged element; (c) the summary judgment evidence offered to prove the challenged element is no more than a mere scintilla; or (d) the proffered summary judgment evidence establishes conclusively the opposite of the challenged element. Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex. App.-San Antonio 2000, pet. denied).

Under DTPA – Consumer Protection Act (hereinafter “DTPA”), a consumer may maintain a claim if the seller employs a misrepresentation, which is relied on by the consumer to the consumer’s detriment. Tex. Bus. & Comm. Code §17.50(a)(1).
The elements of common-law fraud are:

a. The defendant made a representation to the plaintiff;

b. The representation was material;

c. The representation was false;

d. When the defendant made the representation, the defendant knew the representation was false or made the representation recklessly without any knowledge and as a positive assertion.

e. The defendant made the representation with the intent that the plaintiff act on it;

f. The plaintiff relied on the representation; and
g. The representation caused the plaintiff injury.
In re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex. 2001).

non-movant points to the “as is” basis of the Contract as negating causation in that by agreeing to purchasing the Truck “as is” the Plaintiff should not have relied upon any prior representations. Citing Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905 (Tex. 2007) and Prudential Insurance Company of America v. Jefferson Associates, Ltd., 896 S.W.3d 156 (Tex. 1995), the Defendant states that “as is” provisions in contracts that are not prominently located, that require an independent signature, and are not mere boilerplate serve to place the responsibility for the buyer’s injuries on the buyer himself.

However, in Prudential, 896 S.W.3d at 162, the Texas Supreme Court delineates an exception to this rule by stating “a buyer is not bound by an agreement to purchase something “as is” that he is induced to make because of a fraudulent representation or concealment of information by the seller.” Even under an “as is” contract which allows inspection by the buyer, an affirmative misrepresentation is actionable under the DTPA. Weitzel v. Barnes, 691 S.W.2d 598, 601 (Tex. 1985).

Furthermore, “as is” provisions in contracts that specify that the buyer cannot rely on prior representations only exclude warranties not included in the contract unless the transaction is based on fraudulent misrepresentations, and it is well settled that such provisions cannot bar proof of fraudulent representations or deny a remedy for them. Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 12, 307 S.W.2d 233, 240 (1957).

In the present case, the Plaintiff has presented summary judgment evidence that the Defendant made misrepresentations to him about the condition of the Truck. Specifically, the Defendant, through its website, represented that all the vehicles it sells are given a complete Multi-Point safety and operational inspection and any deficiencies are replaced or repaired and that they are in excellent condition. (Exhibit “C”). In addition, when the Petitioner inquired as to whether it was necessary for him to inspect the Truck, he was told by the Defendant that inspection was unnecessary because the Truck was in excellent condition and that 90% of Defendant’s vehicle sales were conducted over the internet without the buyers inspecting the vehicles purchased. (Exhibit “C”).

When the Truck was received by Plaintiff it was immediately apparent that the Truck was unusable. The Plaintiff attempted to refuse delivery of the Truck and thereafter obtained an agreement by the Defendant to exchange the Truck for a another vehicle. (Exhibit “C”). After the Defendant reneged on that agreement, it did agree to accept return of the vehicle in order to sell it to another buyer and compensate the Plaintiff. (Exhibit “C”).

However, after the Truck was returned to the Plaintiff, an inspection of the equipment installed on the vehicle revealed that it was unsafe to operate and that it had been reconditioned by someone without experienced in hydraulic equipment and that certain parts of the equipment had been installed incorrectly. (Exhibit “D”). It was therefore obvious that the Defendant knew, or should have known, that it’s representations were false or that it’s representations were made as a positive assertion without any knowledge as to truth.

The summary judgment evidence further shows that the Plaintiff relied on the Defendant’s misrepresentations in deciding to purchase the Truck without inspecting it. (Exhibit “C”). This reliance was to the Plaintiff’s detriment in that, in addition to paying $49,900.00 for an inoperative Truck, it would cost the Plaintiff over $15,000.00 to repair it. (Exhibits “C” and “D”).

In the on point case of Kane v. Nxcess Motorcars, Inc., 01-04-00547-CV, 2005 WL 497484 (Tex. App. Mar. 3, 2005), a car dealer sold a car to a buyer over the internet under an “as is” contract that disclaimed any warranties or prior representations, that absolved the seller of any responsibility for any repairs, and listed all the possible defects. The website ad stated that the car was in excellent condition and the seller responded to the buyers’ inquiries regarding the condition of the vehicles’ paint and body with misrepresentations and induced the buyer to forego inspecting the car. Id. Upon receipt of the car, the buyer had it inspected and it was determined that the car had been damaged in an accident. Id. Summary judgment for the seller was reversed and the case was remanded based on the exception stated by the Supreme Court in Prudential and the appellate court ruled that, because there was evidence that knowing misrepresentations were made, the “as is” clause could not preclude the buyer from recovery on his DTPA and common-law fraud claims as a matter of law. Id.

The summary judgment evidence attached hereto shows that there are material issues of fact regarding the representations made by the Defendant to the Plaintiff as to the condition of the Truck and the extent to which the Plaintiff relied on those representations to his detriment. As a matter of law, it has been shown that “as is” provisions in contracts cannot negate causation when it can be shown through the evidence that the seller knowingly misrepresented to the buyer the condition of the goods sold.

Therefore, taking the evidence favorable to the Plaintiff as true, indulging every reasonable inference in favor of the Plaintiff, and resolving all doubts about the existence of a genuine issue of material fact against the Defendant, the Defendant has failed in its burden of showing that there is no genuine issue of material fact and it is therefore entitled to judgment as a matter of law, and its motion for traditional summary judgment must be denied.

Furthermore, the Defendant has failed to show that there is a complete absence of summary judgment evidence that proves the Plaintiff’s claims which is not barred by the rules of law or evidence, that the summary judgment evidence is no more than a mere scintilla or that the summary judgment evidence establishes conclusively the opposite of the Plaintiff’s claim. Therefore the Defendant’s motion for no-evidence summary judgment must be denied as well.

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