Jerry and Lana Ricketts v. Kenneth R. Beckham, Individually and as Owner of Beckham's Metroplex Pest Control--Appeal from 101st District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-102-CV

JERRY AND LANA RICKETTS,

Appellants

v.

KENNETH R. BECKHAM, INDIVIDUALLY

AND AS OWNER OF BECKHAM'S METROPLEX

PEST CONTROL,

Appellee

From the 101st District Court

Dallas County, Texas

Trial Court # 89-1140-E

O P I N I O N

This is an appeal from a summary judgment granted by the trial court in favor of the Defendant. Plaintiff-Appellants Mr. and Mrs. Ricketts sued Defendant-Appellee Beckham and others in connection with Appellants' purchase of a house from Defendants Charles E. Coomes and Mary Lois Coomes. More specifically, Appellants sued the sellers (the Coomeses), the real estate agents, Mickey Avery and John Avery, the real estate agency, Century 21 Real Estate III, Inc., as well as Defendant-Appellee Beckham.

Plaintiff-Appellants' suit was brought for breach of contract and under the Deceptive Trade Practices Act (DTPA), same being under the Texas Business and Commerce Code, Section 17.41 et seq. Thereafter, Appellants non-suited the Averys and the Coomeses, and obtained a post-answer default judgment against Century 21, leaving in the suit only Defendant-Appellee Beckham.

Defendant-Appellee Beckham filed a motion for summary judgment and Plaintiff-Appellants filed a response. The trial court granted Appellee's motion for summary judgment, from which Appellants have appealed, filed a brief, and brought forward a record. Appellee Beckham has not filed a brief.

Appellants assert as their sole point of error that the trial court erred in granting Appellee's motion for summary judgment with respect to Appellants' DTPA claims. We agree.

In January 1987, Appellants purchased a house in Grand Prairie, Texas, from Charles and Mary Lois Coomes. Before the closing on the house, Appellants Mr. and Mrs. Ricketts had no knowledge of any prior termite damage to the property. The closing documents included a termite inspection report prepared by Appellee Beckham. This report listed visible termite damage to the sheetrock in the living room of the house. The report did not mention active termites or previous infestation.

After the Ricketts started moving into the house, they discovered extensive termite damage. Appellant Ricketts contacted Appellee Beckham to arrange for treating the termite damage. When Appellee Beckham came to the house, he informed the Ricketts, for the first time, that his company (Beckham's) had treated the house for termite damage on numerous occasions prior to the time he did the inspection and report relating to the purchase. Appellee Beckham acknowledged that he was aware of the substantial nature of the termite damage and that he did not think the problem would ever be permanently controlled.

Appellants, Mr. and Mrs. Ricketts, alleged causes of action against Appellee Beckham under the DTPA for misrepresentation, failure to disclose information, and for engaging in an unconscionable action or cause of action. Appellee Beckham moved for summary judgment on the specific ground that the summary judgment evidence established a lack of causal connection between the conduct of Defendant Beckham and the damages suffered by the Plaintiffs.

Our Supreme Court has set forth the rules to be followed by an appellate court in reviewing a summary judgment:

1.The movant for 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.

2.In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3.Every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

A defendant who moves for summary judgment has the burden of showing as a matter of law that no material fact issue exists on the plaintiff's cause of action. Arnold v. Nat'l Mut. Fire Ins. Co., 725 S.W.2d 165, 166-67 (Tex. 1987). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). Thus, a defendant must be able to negate at least one element of the plaintiff's cause of action in order to meet its burden of proof. Manoogian v. Lake Forest Corp., 652 S.W.2d 816, 818 (Tex. App. Austin 1983, writ ref'd n.r.e.).

In his motion for summary judgment Appellee contended that he was entitled to judgment as a matter of law because the uncontradicted summary judgment evidence established (as a matter of law) a lack of causal connection between the conduct of Defendant Beckham and the damages suffered by the Plaintiffs.

After setting forth this specific ground for his summary judgement, Appellee went on to argue that his job required only that he inspect the premises for termites, treat those areas, if any, that exhibited visual termite infestation, and submit a written report disclosing his findings to the title company. He then stated that he performed this task in a workmanlike manner and that he submitted the required report.

The problem with Appellee's specific contentions, as set forth, is that they fail to address Appellants' allegations under the DTPA concerning misrepresentations, failure to disclose, and unconscionable action or course of action. Appellee's causation argument does not in any way address causation with respect to these DTPA claims. For example, Appellee did not contend, or present any summary judgment evidence to establish, that his failure to disclose the prior termite treatments and damage was not a producing cause of Appellants' damages. The only matter addressed by Appellee's argument is causation with respect to the inspection and the written report, apparently assuming that this is the only basis for liability asserted against him.

Appellee did not establish his entitlement to judgment as a matter of law on the only ground specifically set forth in the motion for summary judgment causation. See generally McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (motion for summary judgment must stand or fall on the grounds expressly presented in the motion). Neither the motion nor Appellee's summary judgment evidence negates or disproves causation as it relates to Appellants' DTPA allegations.

Apart from Appellee's failure to meet his summary judgment burden, Appellant presented summary judgment evidence showing the existence of questions of material fact on their DTPA claims. Jerry Ricketts stated in his affidavit that, upon moving into the house, he discovered significantly more termite damage than had been disclosed in the report. Only at that time did Mr. Ricketts learn that Appellee had treated the house on numerous occasions prior to the time of doing the inspection and report relating to the purchase. Appellee told Mr. Ricketts that he was aware of the termite damage and that he did not feel the problem could ever be controlled. As owner of the property, Mr. Ricketts believed that based on the extensive damage discovered and the repairs needed the actual value of the house purchased was nowhere near the value he and his wife thought they were receiving when they obtained the report.

Appellants' summary judgment evidence shows the existence of material fact questions on Appellants' DTPA claims, including the issue of causation. Even if Appellee were correct with respect to causation as it relates to the inspection and the written report, it was not proper to grant summary judgment on the DTPA claims, the viability of which do not depend on whether Appellee properly inspected and reported his findings at the time of Appellants' purchase of the house. Accordingly, the summary judgment is reversed and the cause remanded for trial on Appellants' DTPA claims.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Reversed and remanded as indicated

Opinion delivered and filed January 19, 1995

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