JIGNA, INC.,FROM A DISTRICT COURT f/k/a CMW, INC., APPELLANT, v. J. P. AWALT, JR.-AGENT, J. P. AWALT, JR., MARVELLE AWALT MUNTZEL, GRACE ELIZABETH AWALT PHILLIPS, AND NOLAN ENTERPRISES, INC., APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00903-CV
 
JIGNA, INC.,FROM A DISTRICT COURT
f/k/a CMW, INC.,
 
 
        APPELLANT,
 
 
v.
 
 
J. P. AWALT, JR.-AGENT,
J. P. AWALT, JR.,
MARVELLE AWALT MUNTZEL,
GRACE ELIZABETH AWALT PHILLIPS,
AND NOLAN ENTERPRISES, INC.,
 
 
        APPELLEES. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
AUGUST 11, 1989
        This is an appeal by Jigna, Inc., f/k/a CMW, Inc. (Jigna) and Rasik T. Motiwala FN:1 from the granting of motions for summary judgment in favor of Nolan Enterprises, Inc. (NEI), J. P. Awalt, Jr.-Agent, J. P. Awalt, Jr., Marvelle Awalt Muntzel, and Grace Elizabeth Awalt Phillips. FN:2 Final judgment in the case awarded NEI damages and attorney's fees against Jigna and Motiwala, personally. The judgment also ordered that Jigna take nothing on its claims against the Awalts and NEI. The trial court also granted a "motion to foreclose" on a temporary restraining order (TRO) bond and judgment was rendered for NEI against Jigna and the surety on the bond, jointly and severally, for $2,500, the amount of the bond, from which Jigna and Motiwala appeal.
        In six points of error, Jigna and Motiwala FN:3 contend that the trial court erred in 1) rendering summary judgment on Jigna's affirmative claims for relief; 2) rendering judgment against Motiwala in the absence of personal service or appearance by him; 3) rendering summary judgment against Motiwala because he is not liable; 4) rendering summary judgment for NEI on its affirmative claims for relief; 5) ordering foreclosure upon the TRO bond because the wrongfulness of the TRO was not conclusively established; and 6) ordering foreclosure upon the TRO bond when NEI's actual damages were not conclusively established. We affirm in part and reverse in part.
FACTS
        On April 25, 1978, Jigna and the Awalts entered into a lease agreement for the Awalt's five-story building located at 807 Elm Street in Dallas. Jigna operated a fast food restaurant at the leased premises. J. P. Awalt, Jr., acting for himself and as agent for his sisters, Marvelle Awalt and Grace Awalt, was subsequently presented with a proposal by Jigna for a sublease of another floor of the building to be used for the operation of another fast food restaurant by Dr. Hasmukh Shah. Jigna had also proposed a sublease to a printing company, PDQ Press. The lease between Awalt and Jigna provided in paragraph 14, for subleasing by Jigna as follows:
                14.        ASSIGNMENT AND SUBLEASING: If not in default of any of the terms, conditions or covenants contained in this Lease, Tenant may without the consent of the Landlord, assign this lease or sublet the demised premises or any portion thereof, except that no assignment or subletting shall be for any use more hazardous on account of fire or otherwise, or for a use that will cause wear and tear more than the use for which the premises are leased as defined in Par. 3 above.
Pursuant to paragraph three of the Awalt/Jigna lease, the premises were to be used for the commercial purpose of "restaurant and warehouse storage of various merchandise" and also "other business purposes" at Jigna's discretion. Paragraph eight of the Awalt/Jigna lease restricted alterations to the premises as follows:
                8.        ALTERATIONS, ADDITIONS, AND IMPROVEMENTS: Tenant shall not create any openings in the roof or exterior walls, nor make any alterations, additions, or improvements to the demised premises without prior written consent of Landlord. Consent for non-structural alterations, additions, or improvements shall not be unreasonably withheld by Landlord. Tenant shall have the right at all times to erect or install shelves, bins, machinery, air conditioning or heating equipment, and trade fixtures, provided that Tenant complies with all applicable governmental laws, ordinances, and regulations. Tenant shall have the right to remove at the termination of this Lease such items so installed, provided Tenant is not in default; however Tenant shall prior to the termination of this Lease repair any damaged caused by such removal.
(Emphasis ours). In paragraph two of the same lease, Jigna accepted the condition of the leased premises as being suitable in their present condition:
                2.        ACCEPTANCE OF PREMISES: Tenant acknowledges that it has fully inspected the demised premises and Tenant hereby accepts the demised premises, and the buildings and improvements situated thereon, as suitable for the purposes for which the same are leased in their present condition, except: None.
NEI/JIGNA DISPUTE
        NEI was another tenant of Awalt's in the same building. Electricity to the Jigna premises was provided through a common meter on NEI's adjoining premises. Jigna and NEI had a separate agreement involving a submeter which was installed at Jigna's expense and Jigna was to reimburse NEI for a pro rata share of NEI's electric utility charges based upon Jigna's usage as shown by the submeter. Later, Jigna and NEI reached an additional agreement whereby a fire door was installed at Jigna's expense, giving access from Jigna's restaurant to NEI's lobby to meet a requirement of the City of Dallas Fire Code.
        A payment dispute regarding utility sharing and exit door fees later arose between NEI and Jigna. There was evidence that Jigna and NEI resolved their differences by agreeing that Jigna could use the fire door exit without charge in exchange for the free use of certain storage space on Jigna's premises by NEI.
        In July 1984, NEI threatened to cut off electricity to Jigna due to a disagreement on payment of utility costs by Jigna. Jigna sought and obtained a TRO prohibiting such action. Jigna further sought damages against NEI for conspiracy with the Awalts to interfere with Jigna's leasehold interest and seeking to drive Jigna out of the premises. NEI counterclaimed for actual and exemplary damages, declaratory relief, and attorneys' fees under the utility and exit door agreements. The counterclaim was filed against both Motiwala personally, and Jigna.
JIGNA/AWALT DISPUTE
        Jigna began its restaurant operations on the first floor of the leasehold in April 1978. The remainder of the floors were essentially unused for commercial purposes. In March 1982, Jigna undertook to sublease the premises to P.D.Q. Press, Inc. for a printing business to be conducted on the second floor of the building, and requested the Awalts' consent. In Jigna and Motiwala's joint brief, Jigna contends that "Awalt never [consented] and the PDQ sublease proposal was withdrawn."
        In September 1982, Jigna again requested consent from the Awalts regarding certain structural modifications of the premises in connection with another sublease of the second floor to Hasmukh Shah, M.D. J. P. Awalt, Jr. advised Jigna that he was reluctant to consent to any structural modifications of the leased premises if it would impair the structural integrity of the premises. Jigna's proposed modifications included the cutting of holes in the floors as openings for additional stairways accessing the basement and second floor.
        Initially, the Awalts refused consent for this structural modification. During further negotiations, the Awalts' counsel wrote Jigna's engineers a letter informing them that the Awalts were reluctant to consent to any modifications which would impair the structural integrity of the premises because the Awalts' father, now deceased, had previously been advised that the flat slab construction of the building had been criticized by other engineers. In response to that letter, Jigna's engineers said that a cursory inspection revealed that the building was structurally sound. The Awalts contend that they then consented to the structural alterations, but that Jigna demanded financial compensation as well for loss of the PDQ and Shah potential subleases, leading to the present suit.
        Jigna contends that the Awalts had knowledge that the building was not structurally sound at the time they leased the premises to it, evidenced by a letter written to the Awalts' father in 1934 by engineers who criticized the building's slab foundation system. The summary judgment evidence shows that J. P. Awalt, Jr. said that he did not find the 1934 letter until sometime between 1980 and 1983, after the premises were leased to Jigna. At the top of the letter is a notation, in J. P. Awalt, Sr.'s handwriting, which says "J. P., Jr., preserve this record." J. P. Awalt, Jr., in his deposition, said that to his knowledge, no other engineering studies had been done to evaluate the structure of the building.
        Jigna sued the Awalts on theories of 1) fraudulent inducement, 2) breach of implied warranty of suitability, 3) violations of the Texas Deceptive Trade Practices Act (DTPA), 4) breach of contract, 5) tortious interference with business relations, 6) misrepresentation, and 7) conspiracy.
 
STANDARD OF REVIEW
        The function of summary judgment is not to deprive a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952); Futerfas v. Park Towers, 707 S.W.2d 149, 156 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). A defendant moving for summary judgment must show either: (1) that as a matter of law the plaintiff cannot establish his case; or (2) that all essential elements of his defense are conclusively established as a matter of law. Bell v. Sharif-Munir-Davidson Development Corp., 738 S.W.2d 326, 329 (Tex. App.--Dallas 1987, writ denied). A defendant-movant will prevail on a motion for summary judgment which establishes that as a matter of law the plaintiff cannot prove his case, if the defendant disproves at least one element of each of the plaintiff's theories of recovery. Traylor v. Unitedbank Orange, 675 S.W.2d 802, 804 (Tex. App.--Beaumont 1984, writ ref'd n.r.e.). The trial court, when deciding whether there exists any disputed material fact which precludes summary judgment, should consider all evidence favorable to the non-movant as true; further, every reasonable inference from the evidence must be indulged in favor of the non-movant, and any doubts resolved in its favor. If there is a genuine issue of material fact, the motion for summary judgment must be denied. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Bell, 738 S.W.2d at 329.
        Jigna failed to timely file a response to the Awalts' motion for summary judgment and further failed to obtain leave of court for late filing. Therefore, we do not consider its response. See INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985). See also Goswami v. Metropolitan Savings & Loan, 751 S.W.2d 487, 489 n.1 (Tex. 1988). Jigna filed no response to NEI's motion.
        We now look at whether the defendant/movants' motions for summary judgment establish as a matter of law that there is no genuine issue of fact as to one or more essential elements of each of Jigna's causes of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Because Jigna and Motiwala wish to contend on appeal that summary judgment was improperly granted without having filed a timely response to the motion, the only issue before this Court is whether the grounds expressly presented to the trial court by the movants' motions and summary judgment evidence are insufficient as a matter of law to support summary judgment. It is not the duty of this Court to sift the summary judgment record to see if there are other issues of law or fact that could have been raised by the non-movant, Jigna, but were not. Woolrige v. Groos National Bank, 603 S.W.2d 335, 344 (Tex. Civ. App.--Waco 1980, no writ); INA of Texas, 686 S.W.2d at 615.
THE AWALTS' MOTION
        In their first point of error, Jigna contends that the trial court erred in rendering summary judgment against it on its affirmative claims for relief. Jigna had various claims for relief, which included claims for: 1) fraudulent inducement; 2) breach of implied warranty; 3) breach of contract; 4) tortious interference with business relations; 5) express misrepresentation; 6) conspiracy; (7) and five claims for relief under the DTPA. We will address each of these causes of action in turn.
FRAUDULENT INDUCEMENT
 
        Jigna contends that, at the very least, there was a fact issue as to whether J. P. Awalt was aware, at the time the lease was executed, that the premises contained structural defects and that it was fraudulently induced to enter into the contract.
        The Awalts as movant, must show in order to prevail on its motion for summary judgment that Jigna could not establish its case for fraudulent inducement. Bell, 738 S.W.2d at 329. The Awalts could accomplish this by disproving at least one element of this theory of recovery. Traylor, 675 S.W.2d at 804. The elements of a cause of action for fraud are: 1) that a material misrepresentation was made; 2) that it was false; 3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it with the intention that it should be acted upon by the party; 5) that the party acted in reliance upon it, and 6) that he thereby suffered injury. Trenholm v. Ratcliff, 646 S.W.2d 727, 930 (Tex. 1983). A knowing concealment of a material fact may also constitute fraud. See Spolijaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986). It was Jigna's contention, in its petition, that the Awalts concealed structural defects in the building, and this constituted fraud because, had it known of the defects, it would not have leased the building. We now look to the Awalts' motion and proof to see which elements it sought to establish against Jigna.
        The Awalts' motion argues that: 1) no representations were made concerning the leased premises; and 2) the summary judgment evidence reflects that the building is structurally sound and so any such representation is true. The record reflects that there is a fact issue raised by the summary judgment evidence as to whether the building is structurally sound. The 1934 letter, an exhibit to J. P. Awalt Jr.'s deposition, reflects that there was some concern as to the structural soundness of the building. There was also a fact issue as to whether J. P. Awalt, Jr., concealed this potential problem with the building from Jigna. Although J. P. Awalt, Jr., testified that he did not know about their 1934 letter until after 1980, the notation on the 1934 letter from J. P. Awalt, Sr., addressed to J. P. Awalt, Jr., did say for J. P. Awalt, Jr., to preserve the letter. The issue of whether J. P. Awalt, Jr., knew of these facts is not appropriate for determination by summary judgment. Lawrence v. TD Industries, 730 S.W.2d 843, 844 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). Issues of intent, knowledge and state of mind are not susceptible to being readily controverted and are best left to the determination of the trier of fact. Id.
        The Awalts have not shown, by their motion and summary judgment proof, that at least one element of Jigna's fraudulent inducement cause of action is conclusively established against it.
        We next consider whether the Awalts were entitled to summary judgment on this cause of action because they conclusively established the affirmative defense of waiver as a matter of law, as they contend in their brief. Bell, 738 S.W.2d at 329. The Awalts alleged in their motion that Jigna waived its right to sue for fraudulent inducement concerning the condition of the premises when it signed the lease agreement containing paragraph two, in which it said it inspected the premises and agreed that they were suitable for the expressed purposes of the lease.
        Waiver is the intentional relinquishment of a known right. University Nat'l Bank v. MacFarland, 635 S.W.2d 200, (Tex. Civ. App.--Austin 1982, no writ). The affirmative defense of waiver has as its elements: 1) an existing right; 2) knowledge, actual or constructive, of its existence; and 3) an actual intention to voluntarily relinquish it. Rio Delta Land Co. v. Johnson, 475 S.W.2d 346 (Tex. Civ. App.--Corpus Christi 1971, writ ref'd n.r.e.). A party cannot waive a right without full knowledge of the material facts. Cattle Feeders v. Jordan, 549 S.W.2d 29, (Tex. Civ. App.--Corpus Christi 1977, no writ). It can hardly be said that Jigna could have waived the alleged fraud of the Awalts since it was not aware FN:4 of the facts about the building which, it is contending, the Awalts concealed. Awalt has failed to establish this affirmative defense. Point of error one as to fraudulent inducement is sustained.
 
IMPLIED WARRANTY
 
        The Awalts contend that there are no implied warranties given by the landlord in a commercial lease. They also allege that Jigna expressly waived any implied warranties by signing the lease accepting the premises "in their present condition." They further assert that Jigna waived any right to sue under such cause of action for breach of implied warranty when it signed a settlement agreement which stated in pertinent part, that the agreement:
 
 
    constitutes the entire lease agreement between the parties; that any prior modifications, changes, alterations or amendments that might have been made are hereby rescinded, abandoned and/or waived; that there are presently no modifications, changes, alterations or amendments to the attached Exhibit "A" Lease Agreement except as expressly provided for therein; and that any and all claims, rights, actions, or causes of action, whether now known or unknown, which either party may claim to have arising from any previous modifications, amendments, alterations or changes of the attached Exhibit "A" Lease Agreement are hereby released and discharged forever.
        There is an implied warranty of suitability in commercial leases. Davidow v. Inwood North Professional Group, 747 S.W.2d 373, 377 (Tex. 1988). This warranty can be waived. Davidow, 747 S.W.2d at 377. In the lease Jigna signed, it said that it inspected the premises and accepted them as "suitable" for the lease purposes. We hold that this is an effective waiver of the warranty of suitability. Davidow, 747 S.W.2d at 747. We overrule this point of error as to breach of implied warranty.
DTPA
        In its petition, Jigna asserted violations of the Texas Deceptive Trade Practices Act (DTPA), section 17.46(b) (5), (7), (23) and section 17.50(a)(2) and (3). Section 17.46(b)(5) prohibits representations that goods have characteristics, uses, or benefits which they do not have; section 17.46(b)(7) prohibits representations that goods are of a particular standard, quality, or grade, if they are of another; section 17.46(b)(23) creates a cause of action for "the failure 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;" section 17.50(a)(2) creates a DTPA cause of action for breach of an express or implied warranty; and section 17.50(a)(3) creates such a cause of action for unconscionable conduct, defined as an act or practice which, to a person's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree, or results in a gross disparity between the value received and consideration paid. TEX. BUS. & COM. CODE ANN. §§ 17.46(b) (5), (7), (23) and 17.50(a)(2) and (3) (Vernon 1987).
        In order to prevail on these DTPA causes of action, the Awalts had to affirmatively disprove at least one element of each of Jigna's theories of recovery. Traylor, 675 S.W.2d at 804. The Awalts, in their motion, argued that: 1) there is no implied warranty which was breached; 2) there was express waiver by Jigna of all implied warranties and waiver of recovery for misrepresentation; 3) no representations were made; 4) all representations if made, were made in good faith and are true; 5) the settlement agreement entered into between Jigna and the Awalts to settle the prior rent FN:5 dispute judicially estopped Jigna from now making any claim concerning oral representations. FN:6
        Concerning section 17.50(a)(2) and the breach of implied warranty, we have earlier held that this was waived under paragraph two of the lease. Concerning the representations that the premises were of a certain standard, grade or quality, or have characteristics they do not have, sections 17.46(b)(7) and 17.45(1), the Awalts have failed to conclusively establish, as they alleged in their motion, that no representations were made or that the representations concerning the condition of the building were true. Traylor, 675 S.W.2d at 804. Regarding section 17.46(b)(23), "the failure to disclose information," the Awalts have also failed to conclusively disprove at least one element of this cause of action. Traylor, 675 S.W.2d at 804. There is at least a fact issue as to whether false representations were made or facts not disclosed regarding the suitability of the premises. Concerning the action under sections 17.50(a)(3) for "unconscionable conduct," we note that this particular cause of action under the DTPA was not made a ground under the Awalt's motion for summary judgment. Therefore, the motion was, by necessity, legally insufficient to merit summary judgment on a theory of recovery not addressed in the motion. Whiddon v. Metni, 650 S.W.2d 904, 906 (Tex. App.--Dallas 1983, writ ref'd n.r.e.). We sustain the first point of error as to the DTPA causes of action for representations that goods are of a certain grade, standard or quality, representations that goods have characteristics or uses which they do not have, and failure to disclose information. We overrule the first point of error as to the DTPA causes action for breach of warranty and unconscionable conduct.
BREACH OF CONTRACT
        The Awalts did not move for summary judgment on the cause of action for breach of contract. Therefore, the motion was, by necessity, insufficient to merit summary judgment on a theory of recovery not addressed in the motion. Whiddon, 650 S.W.2d at 906. We overrule the first point of error as to the breach of contract cause of action.
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
 
        The tort of interference with business relations consists of the following elements of proof: 1) a contract subject to interference; 2) the act of interference; 3) willful and intentional interference; 4) proximate cause; and 5) actual damage or loss. Armendariz v. Mora, 555 S.W.2d 400, 405 (Tex. Civ. App.--El Paso 1977, no writ). The Awalts, in their motion, moved for summary judgment on this cause of action alleging: 1) justification in their refusal to consent to structural alterations, since the Awalts had a legal right to withhold consent under the lease; and 2) that Jigna has no cause of action because the sublease contracts with PDQ and Dr. Shah which were allegedly interfered with were not in writing and, therefore, were violative of the statute of frauds. As to the first ground, there is a fact issue raised as to whether the consent to the modifications was unreasonably withheld. The lease stated that although Jigna had to request permission to modify the structure of the building, such consent could not be unreasonably withheld. There was some evidence that the Awalts took an extended period of time to reply to Jigna's requests. In addition, there was evidence that they also required a variety of information and assurances before they would consent to the modifications. This at least raises a fact issue concerning reasonableness in the withholding of consent.
        Concerning the statute of frauds defense, this ground also fails because the tort of malicious interference with business relationships can exist even if a contract is not yet in existence. Harshberger v. Reliable-Aire, Inc., 619 S.W.2d 478, 481 (Tex. Civ. App.--Corpus Christi 1981, writ dism'd w.o.j.). Jigna's first point of error is sustained as to the tortious interference with business relations cause of action.
EXPRESS MISREPRESENTATION
 
        Jigna contends that the summary judgment denial of its cause of action for express misrepresentation should be reversed. It cites no authority for this contention and makes no distinction in its brief whether such relates to fraudulent misrepresentation, negligent misrepresentation or misrepresentation under the DTPA. We have earlier discussed the issue of fraudulent misrepresentation and held that summary judgment was improper as to that cause of action. We also have disposed of the issue of misrepresentations under the DTPA. The remaining type of misrepresentation to which Jigna might be referring is negligent misrepresentation. Awalt, in its motion, moved for summary judgment on the grounds that: 1) no representations were made; and 2) if representations were made concerning the building's suitability, any such representations were true. The fact that the lease stated that the purposes for which the building could be used included warehouse storage and restaurant uses amounts to a representation. Further, as discussed earlier, there is a fact issue as to whether the representation was true. Jigna's first point of error is sustained as to the cause of action for misrepresentation.
CONSPIRACY
 
        Jigna contends that summary judgment denial of its conspiracy cause of action was error. The elements of a cause of action for conspiracy are: 1) involvement of two or more persons; 2) an object to be accomplished; 3) a meeting of the minds on the objects or course of action; 4) one or more unlawful overt acts; and 5) damages as a proximate result. Ward v. Dallas Texas National Title Company, 735 S.W.2d 919, 921 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). In their motion, the Awalts contend that there was no conspiracy for the reason that there was "no discussion" or plan between NEI and the Awalts to "put the plaintiff out of business or interfere with" its business.
        The existence of conspiracy is not something which can be readily controverted by a non-movant, as the very essence of a conspiracy is the secret intent of the co-conspirators. Futerfas v. Park Towers, 707 S.W.2d 149, 157 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). Therefore, even the affidavits and depositions brought forth by the Awalts denying any conspiracy do not serve as a proper basis on which summary judgment may be granted. Conspiracy does not easily lend itself to summary judgment. Stimpson v. Plano Indep. School Dist., 743 S.W.2d 944, 947 (Tex. App.--Dallas 1987, writ denied). We hold that summary judgment was improper as to this cause of action. We sustain appellant's first point of error as concerns the conspiracy cause of action.
NEI'S MOTION
 
MOTIWALA'S PERSONAL LIABILITY
 
        In his second point of error, Motiwala argues that the judgment in favor of NEI and against him was improper as he had never been served or appeared individually in the trial court. Motiwala, individually, was not a plaintiff in the suit. He was a counter-defendant, as NEI had counter-sued him for failure to pay monies they contended were due under the utility and exit door agreements. He was never served with process. Summary judgment was rendered for NEI against both Jigna and Motiwala on their claims.
        NEI contends that Motiwala cannot appeal the judgment by direct appeal if he is not a party to the suit, citing McEwen v. Harrison, 345 S.W.2d 706 (Tex. 1961). We agree. Motiwala is limited to a bill of review as his exclusive remedy. Id. at 710. We overrule Motiwala's point of error number two.
        In his third point of error, Motiwala alleges that the trial court erred in rendering summary judgment against him on the merits. Again, Motiwala may not obtain review of this judgment by direct appeal, but may only appeal by way of bill of review. McEwen, 345 S.W.2d at 710. We overrule Motiwala's point of error number three.
        In it's fourth point of error, Jigna contends that the trial court erred in rendering summary judgment on NEI's affirmative claims for relief. Jigna argues that the recovery of $8,700 for exit door fees was "fundamentally flawed" because there was "ample deposition testimony" that this fee was waived by NEI. Because Jigna failed to file any response to NEI's motion for summary judgment, the only issue before this court is whether the grounds expressly presented to the trial court by NEI's motion are insufficient as a matter of law. Fisher, 597 S.W.2d at 397. We agree that there is a fact issue as to whether the exit door fees were due and payable to NEI. Motiwala, in his deposition, stated that NEI had agreed to exchange free storage space for free use of the exit door. Because of this, there is a fact issue as to whether the award of $8,700 was improper. Jigna's point of error number four is sustained as to the exit door fee award.
        Jigna argues that, as to the utility charges, the award of $13,218.84 was improper because certain payments and credits were not allowed. It is Jigna's contention that because NEI's summary judgment proof, invoices attached to its motion and affidavit, add up to $14,248.85, an amount greater than that said to be due to NEI according to its affidavit, there is a fact issue precluding summary judgment. We disagree. The invoices show that at least $14,248.85 is due to NEI. The affidavit says that $13,218.84 is due after all lawful offsets, payments and credits have been allowed. There is no fact issue as to this debt in the summary judgment evidence. Jigna's point of error number four is overruled as to these utility charges.
TRO BOND
 
        In its fifth and sixth points of error, Jigna contends that the trial court erred in summarily ordering foreclosure upon the TRO bond because: 1) the wrongfulness of the TRO was not conclusively established; and 2) NEI's actual damages proximately caused by the alleged wrongful issuance of the TRO were not conclusively established.
        Concerning the wrongfulness of the TRO, Jigna contends that there was no evidence of damage to NEI due to the TRO. The existence and amount of damages resulting from the issuance of a TRO in a question for the trier of fact. Robinson v. Levermann, 175 S.W. 160, 163 (Tex. Civ. App.--Dallas 1915, writ ref'd). NEI was the movant on the bond foreclosure and was charged with bringing forth such evidence. There was no evidence of such damages before the trial court. Therefore, the foreclosure of the bond without such evidence of damages was improper. Womack v. McMillan, 47 S.W.2d 437, 439 (Tex. Civ. App.--Amarillo 1932, no writ). We sustain Jigna's points of error five and six.
HOLDING
        The summary judgment is affirmed as to Jigna's causes of action against the Awalts for breach of implied warranty, breach of warranty under the DTPA, unconscionable conduct under the DTPA, and breach of contract. The summary judgment is reversed and remanded as to Jigna's causes of action against the Awalts for fraudulent inducement, representations that goods are of a certain standard, grade or quality under the DTPA, representation that goods have certain characteristics or uses which they do not have (DTPA), failure to disclose information under the DTPA, tortious interference with business relations, express misrepresentation, and conspiracy. The summary judgment is reversed and remanded as to Jigna's cause of action against NEI for conspiracy. The summary judgment is reversed and remanded as to NEI's cause of action against Jigna and Motiwala on the exit door fee agreement and affirmed as to NEI's cause of action on the utility sharing agreement. The order of foreclosure on the TRO bond is reversed and remanded. The appeal is dismissed as to Rasik Motiwala.
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00903.F The tenant then shall remain principal obligator to the Landlord for the full performance of all the terms, conditions, and covenants of this Lease by which Tenant herein is bound; and, the acceptance of an assignment or subletting of the premises by any firm, person or corporation shall be construed as a promise on the part of such assignee or subtenant to be bound by and perform all of the terms, conditions and covenants by which Tenant herein is bound. No such assignment or subletting shall be construed to constitute a novation. In the event of default by Tenant while the demised premises are assigned or sublet, Landlord, in addition to any other remedies provided herein (or provided by law), may at Landlord's option, collect directly from such assignee or subtenant all rents becoming due to Tenant under such assignment or subletting and Landlord may apply such rent against any sums due to Landlord by Tenant hereunder. No direct collection by Landlord from any such assignee or subtenant shall release Tenant from the further performance of its obligations hereunder.
 
 
All alterations, additions, or improvements made by Tenant shall become the property of Landlord at the termination of this Lease; however, Tenant shall promptly remove, if Landlord so elects, all alterations, additions, and improvements, and any other property placed in the premises by Tenant and Tenant shall repair any damage caused by such removal.
 
FN:1 Motiwala is the principal of Jigna.
FN:2 The Awalt parties will be jointly referred to as "the Awalts" unless otherwise indicated.
FN:3 Jigna and Motiwala have filed a joint brief complaining of the judgment against them.
FN:4 There is at least a fact issue as to Jigna's knowledge and awareness.
FN:5 The Awalts and Jigna entered into the settlement agreement after alleged non-payment of rent disputes and alleged oral modifications and disputes arising therefrom.
FN:6 Jigna, in its brief, said that it makes no claim upon oral representations.
File Date[01-02-89]
File Name[880903F]