ELLEN TERRY, JOHN REXFORD, JOHN EVANS, KAREN AKIN-HESTIA ASSOCIATES LP, MARGARET BALL, DON BROOME, KAREN DE GRAFFENREID, JUDY DENNY, GLEN DENNY, UMBERTO ERPILLO, MARSHA GORDON, ERICH HOPKINS, KAREN JEFFERSON, REGINA KING, ESTATE OF DENNIS LOISELLE, BOB LUCHSINGER-SOUTHWEST FREIGHT DISTRIBUTORS, INC., RONALD MONSHOWER, MICHELLE MORGAN, ROYCE RING, ROBERT ROSEN, KAROL STONE, HELEN TYSON, AND EARL WHATLEY-AMERICAN FACTORS CORP., Appellants v. MERCEDES-BENZ, USA, LLC, AND PARK PLACE MOTORCARS, Appellees

AFFIRMED; Opinion Filed July 18, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00118-CV
............................
 
ELLEN TERRY, JOHN REXFORD, JOHN EVANS, KAREN AKIN-HESTIA ASSOCIATES LP, MARGARET BALL, DON BROOME, KAREN DE GRAFFENREID, JUDY DENNY, GLEN DENNY, UMBERTO ERPILLO, MARSHA GORDON, ERICH HOPKINS, KAREN JEFFERSON, REGINA KING, ESTATE OF DENNIS LOISELLE, BOB LUCHSINGER-SOUTHWEST FREIGHT DISTRIBUTORS, INC., RONALD MONSHOWER, MICHELLE MORGAN, ROYCE RING, ROBERT ROSEN, KAROL STONE, HELEN TYSON, AND EARL WHATLEY-AMERICAN FACTORS CORP., Appellants
 
V.
MERCEDES-BENZ, USA, LLC, AND PARK PLACE MOTORCARS, Appellees
.............................................................
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 03-09385
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Francis, and Mazzant
Opinion By Justice Francis
        In this dispute involving allegations of a bumper defect in the Mercedes-Benz CLK 430, twenty-three owners/lessees of the vehicle appeal the trial court's order granting summary judgment in favor of Mercedes-Benz USA, LLC, and Park Place Motorcars. In four issues, appellants generally argue the trial court erred in (1) granting appellees' no-evidence summary judgment on their fraud, DTPA, and civil theft claims; (2) excluding certain evidence; and (3) denying them an adequate time to conduct discovery. Because all dispositive issues are well settled in the law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.
        Appellants are Ellen Terry, John Rexford, John Evans, Karen Akin-Hestia Associates LP, Margaret Ball, Don Broome, Karen de Graffenreid, Judy Denny, Glen Denny, Umberto Erpillo, Marsha Gordon, Erich Hopkins, Karen Jefferson, Regina King, Estate of Dennis Loiselle, Bob Luchsinger-Southwest Freight Distributors, Inc., Ronald Monshower, Michelle Morgan, Royce Ring, Robert Rosen, Karol Stone, Helen Tyson, and Earl Whatley-American Factors Corp.   See Footnote 1  Each either purchased or leased a Mercedes CLK 430, a two-door coupe or convertible with a “low profile design” introduced in 1999 and reproduced virtually unchanged in model years 2000, 2001, 2002, and 2003. Except for Jefferson and King, each appellant purchased or leased the car from Park Place Motors.
        At the time appellants made their purchases, appellees did not tell them the “front bumper was designed to be so low to the ground that it would hit common curbs and wheel stops.” Additionally, appellees did not tell appellants that the bumper was made of a “plastic material” so that when it hit a curb or wheel stop, it often sustained significant damage.
        Appellants sued appellees for common-law fraud, failure to disclose under section 17.46(b)(24) of the Texas Deceptive Trade Practices Act, and civil theft under the Texas Theft Liability Act. Appellants alleged the bumper was defective and that appellees knew, but failed to disclose, the defects to them at the time of the sale with the intent to induce them to purchase the cars. Had they known of the defects, appellants allege they would not have purchased the vehicles at the prices paid, or at all.
        Appellees moved for summary judgment on the grounds that there was no evidence of many of the elements of appellants' causes of action. Appellants responded with various evidence, including depositions, invoices, and affidavits, much of which was ultimately excluded by the trial court. Additionally, appellees sought summary judgment as to some appellants on statute of limitations grounds. The trial court granted summary judgment in appellees' favor. This appeal ensued.
        In their first issue, appellants complain the trial court erred in granting a no-evidence summary judgment on their fraud, DTPA, and civil theft claims. Within this issue, appellants raise thirteen sub-issues in which they challenge “assertions of no evidence” of various elements of the three causes of action. Before turning to the merits of these claims, however, we first address appellants' briefing in this case.
        Texas Rule of Appellate Procedure 38 governs an appellant's brief to be filed in this Court. The rule provides that a brief shall contain, among other things, a clear and concise argument for the contention with appropriate citation to authorities and record. Tex. R. App. P. 38.1(h). Failure to cite authority or provide substantive legal analysis presents nothing for review. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.).
        Seven of appellants' thirteen sub-issues address the fraud and DTPA nondisclosure claims. In particular, appellants challenge “assertions” of no evidence of (1) any material misrepresentation or omission by defendants as it relates to fraud and the DTPA; (2) existence of a duty to disclose; (3) any intent to induce reliance on the alleged misrepresentations and omissions; (4) any reasonable or justifiable reliance; (5) concealment of any material fact; (6) concealment of any fact with intent to induce reliance; and (7) defendants' knowledge of the falsity of any representation or that they intended to induce reliance. Within these seven sub-issues, however, only one - existence of a duty - contains any attempt to set out the relevant law and analyze it within the context of the issue presented. The remaining six sub-issues, which were independently briefed, contain a total of five legal citations: three offer no citations to legal authority, and the others contain little or no attempt to analyze the only cited authority to the specific issue. Instead, appellants merely recite the evidence submitted to the trial court. Some of the evidence relied upon was excluded by the trial court, and appellants either have not challenged the ruling or, again, have not adequately briefed the issue. Given these circumstances, we conclude these sub-issues are inadequately briefed and present nothing for review. Because these issues were grounds for summary judgment, appellants cannot show reversible error with respect to the fraud and DTPA claims. But even if appellants adequately briefed their issues, they have failed to show reversible error on either claim.
        A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence “rises to the level that would enable reasonable and fair minded people to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
        At the center of this dispute is the alleged “bumper defect” and appellees' failure to disclose it. As a general rule, a failure to disclose information does not constitute fraud unless there is a duty to disclose the information. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001). Thus, silence may be the equivalent to a false representation only when the particular circumstances impose a duty on the party to speak and he deliberately remains silent. Id. Whether such a duty exists is a question of law. Id
        Appellants complain that appellees did not tell them the bumper would not clear standard height curbs and wheel stops, which could cause potential damage. They assert the duty to disclose exists because appellees “had knowledge of the bumper defects” and “knew [appellants] were ignorant of the bumper defects and did not have an equal opportunity to discover the truth.” Appellees respond that the height of the bumper was “open and obvious,” and there is no duty, as a matter of law, to disclose a fact that is obvious. Assuming a duty to disclose would arise under the circumstances argued by appellants, we agree with appellees that no such duty exists under these facts. See id. at 755-56 (for purposes of opinion, assuming general duty to disclose facts in commercial setting as set out in section 551 of the Restatement (Second) of Torts).
        The undisputed evidence presented by appellants was that the CLK 430 was “considered to have a low profile design and contoured to improve aerodynamics and high-speed stability in order to give it a sporty look.” Further, the evidence showed that the bumper height on the CLK 430 was five to five-and-five-eighths inches, depending on year model, while the standard curb or wheel stop in Texas is six inches. Even given these facts, however, the height of the bumper was not concealed. Although appellants asserted they would not have purchased the product had they known of the “defect,” there is no evidence from any source that a low bumper on a “sporty” car constitutes a defect as opposed to an inherent characteristic of the automobile obvious to any potential purchaser. Regardless, appellants knew, or certainly should have known, that the bumper had a minimum clearance of some amount. That it could be damaged if it came into contact with an object higher than its minimum clearance is the type of information that any person driving an automobile is expected to know. Under the facts of this case, there is no evidence that appellants did not have an equal opportunity to discover this information. Accordingly, we conclude that appellants had no right to be informed of something they already knew or should have known. Cf. Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 351 (Tex. 1998) (refusing to allow recovery on either products liability or negligent failure to warn claim when risk would be obvious to average user of product); Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995) (concluding, as matter of law, no duty to warn of dangers of operating front-end loader without rollover protective structure because average person would recognize risk); Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387-88 (Tex. 1991) (holding no duty to warn of open and obvious danger of alcoholism from prolonged and continuous consumption of alcoholic beverages barred all claims, including products liability and negligence). Because we conclude there was no duty to disclose as a matter of law, the trial court did not err in granting summary judgment on the fraud claim.
        This reasoning applies with equal force to appellants' DTPA nondisclosure claim. To prevail on a claim for failure to disclose under the DTPA, a plaintiff must prove (1) the defendant knew information regarding the goods or services, (2) the information was not disclosed, (3) there was an intent to induce the consumer to enter into the transaction through the failure to disclose, and (4) the consumer would not have entered into the transaction had the information been disclosed. See Tex. Bus. & Com. Code Ann. § 17.46(b)(24) (Vernon Supp. 2006); see also Patterson v. McMickle, 191 S.W.3d 819,827 (Tex. App.-Fort Worth 2006, no pet. ).
        Although not specifically expressed, the statute contemplates that the “undisclosed” information be something not obvious to the consumer. Stated another way, if the fact complained of is objectively obvious, it logically cannot be considered “undisclosed.” Appellants argue the “bumper defect” was not obvious and rely on their testimony that it never occurred to them to measure the bumper height. That it did not occur to appellants to measure the distance from the bumper to the ground before purchasing their cars does not diminish the fact that the bumper height was open to view and obvious. As stated previously, appellants knew the automobile had a minimum clearance of some amount and damage could result if they hit something higher than the clearance. We conclude, as a matter of law, that the duty imposed by the statute was not triggered because, as stated previously, appellants had no right to be informed of information they knew.
         Finally, for the same reason, appellants' claims under the Theft Liability Act also fail. The Theft Liability Act creates liability for theft as defined by various sections of the Texas Penal Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 134.002(2), 134.003(a) (Vernon 2005). The offense of theft occurs if a peson unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2006). Appropriation is unlawful if it is without the owner's effective consent. Id. at § 31.03(b)(1). Effective consent means consent other than that induced by deception. Id. at § 31.01(3)(A). Deception means “failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.” Tex. Pen. Code Ann. § 31.01(1)(A),(B) (Vernon Supp. 2006).
        In sub-issues eight through thirteen, appellants argue there is some evidence that (1) Park Place and MBUSA unlawfully appropropriated their property; (2) they did not give “effective consent” to the transactions; (3) appellees made representations they did not believe to be true and that appellants relied on those representations; and (4) appellees, by words or conduct, created a false impression that was likely to affect appellants' judgment.
        Initially, we question whether the Theft Liability Act was intended to encompass claims by consumers claiming that a product they purchased was defective in some manner and therefore worth less than they thought. Even if it is, however, the claim in this case fails. Under the allegations in this case, deception is a necessary element to liability. Here, appellants argue they were deceived by appellees' advertising and “holding out Mercedes cars as being of the highest quality and well engineered” when they knew “this was not true with respect to the CLK 430s because of the Bumper Defects.” In other words, appellants argue that by selling the CLK 430s without disclosing that the front bumper could be damaged if it hit curbs or parking stops, appellees overcharged for the vehicles and thus appropriated some of the purchase price that was more than the true value of the vehicle. We cannot agree.
        As we previously said, the bumper's condition was not concealed and was obvious to any potential purchaser. We have concluded appellees did not have a duty to notify appellants that the car's bumper had a minimum clearance and, that if it contacted an object exceeding the minimum clearance, damage could be done. If a party has no duty to disclose certain information, we cannot say that the failure to disclose that same information is a deception within the meaning of the penal code. Because appellees had no duty to disclose the information of which appellants complain, there can be no deception given the facts of this case.
        Because we conclude as a matter of law that appellees had no duty to disclose the information regarding the bumper, the trial court did not err in granting the no-evidence summary judgment on appellants' common-law fraud, DTPA nondiscloure, and civil theft claims. Having reached this decision, we need not address the third issue in which some appellants challenge the no-evidence summary judgment to the extent it was granted on statute of limitations grounds.
        In their second issue, appellants argue they were denied an adequate time for discovery before being required to respond to the no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i) (party may move on no-evidence ground “[a]fter adequate time for discovery). They complain that the discovery period set by scheduling order was not over when the trial court heard appellees' motion and granted it.
        Initially, we note that this Court has refused to read into the rule a bright-line requirement that the discovery period be completed before a no-evidence motion for summary judgment be filed. Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.-Dallas 2006, no pet. ). Regardless, to preserve a complaint that a no-evidence summary judgment was premature, the party claiming it did not have adequate time for discovery must file either an affidavit explaining the need for further discovery or a verified motion for continuance. See Willms v. Americas Tire Co., 190 S.W.3d 796, 807 (Tex. App.-Dallas 2006, pet. denied ); Dishner, 162 S.W.3d at 376; Yokogawa Corp. of Am. v. Skye Int'l Holdings, Inc., 159 S.W.3d 266, 271-72 (Tex. App.-Dallas 2005, no pet.); Brown v. Brown, 145 S.W.3d 745, 749 (Tex. App.-Dallas 2004, pet. denied ).
        Here, appellants do not direct this Court to a place in the record where they filed an affidavit or verified motion for continuance nor did we locate either when reviewing the record. Although appellants did object in the last paragraph of their response that the motion “was not timely,” they did not seek a continuance nor was the response verified. Further, we note that at the summary judgment hearing, appellants decided to “mention” that they “had not had an opportunity to depose either of the defendants.” Although they were cut short by the trial court, they did not ask for any continuance or voice any complaint that they needed more time for discovery. Under all of the circumstances presented, we conclude appellants have failed to preserve their complaint for review. Issue two is without merit.
        In their fourth issue, appellants complain the trial court erred in excluding as evidence Park Place repair invoices as well as the deposition testimony of Raul Romero, a former Park Place employee. With respect to the invoices, appellant have provided no legal citation to support their contention of trial court error. Accordingly, this complaint is not adequately briefed. See Tex. R. App. P. 38.1(h). As for their remaining argument, even if we consider the portions of Romero's deposition cited to us by appellants, our resolution of the first issue would remain the same. Consequently, the exclusion of this evidence did not constitute reversible error. See Tex. R. App. P. 44.1(a)(1). We reject issue four.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
060118f.p05
 
Footnote 1 Appellants' brief lists the names of twenty-two appellants but omits the name of Glen Denny. Mr. Denny, however, is listed as one of the appellants in the amended notice of appeal filed by counsel. We conclude the absence of Mr. Denny as a named party was an inadvertent omission by counsel and include him as one of the appellants in this case. See Tex. R. App. P. 25.1(d)(3). Thus, there are twenty-three appellants.