Dustin Brown, Natalie Brown, Individually, Natalie Brown, as Mother of Adley Brown and Natalie Brown, as Mother of Ily Brown v. Tarbert, LLC, Dba Waypoint Homes, Starwood Waypoint TRS, LLC, Brandon Roberts and Chase Ferrell ( 2020 )

Affirmed and Majority and Concurring Opinions filed December 29, 2020.
In the
Fourteenth Court of Appeals
NO. 14-18-00388-CV
DUSTON BROWN, INDIVIDUALLY; AND NATALIE BROWN,
INDIVIDUALLY AND AS NEXT FRIEND OF ADLEY BROWN AND ILY
BROWN, Appellants
v.
TARBERT, LLC; STARWOOD WAYPOINT TRS, LLC; BRANDON
ROBERTS; AND CHASE FERRELL, Appellees
On Appeal from the 157th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2016-81429
MAJORITY OPINION
Appellants Duston Brown, individually; and Natalie Brown, individually and
as next friend of Adley Brown and Ily Brown (collectively, the Browns) challenge
the trial court’s rendition of summary judgment in favor of appellees Tarbert, LLC;1
1
Tarbert asserted in the trial court and on appeal that CSH 2016-Borrower, LLC is the
Starwood Waypoint TRS, LLC; Brandon Roberts; and Chase Farrell (collectively,
Tarbert). We affirm.
I. BACKGROUND
The Browns leased a house in Friendswood from Tarbert, LLC in 2015. They
moved out after several months and filed a lawsuit against Tarbert, alleging the
house contained toxic mold and required repairs and asserting claims of violation of
the Deceptive Trade Practices–Consumer Protection Act (DTPA);2 common-law
fraud; fraud in a real-estate transaction under Business and Commerce Code chapter
27;3 negligent misrepresentation; negligent hiring, supervision, and/or management;
breach of contract; and violations of Property Code chapter 92 concerning property
repairs.4
Tarbert filed a motion for no-evidence summary judgment, to which the
Browns filed a response. The trial court did not rule on this motion, instead allowing
additional time for discovery. Tarbert then filed an amended summary-judgment
motion on no-evidence and traditional grounds. The Browns filed a response to the
amended motion, after which Tarbert filed objections to certain of the Browns’
summary-judgment exhibits. The trial court struck the challenged exhibits and
rendered summary judgment in Tarbert’s favor, dismissing all the Browns’ claims.5
The Browns filed a motion to reconsider the judgment and for a new trial, to which
they attached additional evidence. The trial court struck the evidence and denied the
successor in interest to Tarbert LLC. We need not decide this issue to dispose of this appeal.
2
See Tex. Bus. & Com. Code Ann. §§ 17.41–.63.
3
See Tex. Bus. & Com. Code Ann. § 27.01.
4
See, e.g., Tex. Prop. Code Ann. §§ 92.153, .158, .165, .259.
5
The trial court’s final judgment states, “This is a final an[d] appealable order dismissing
of all claims against all parties.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex.
2001).
2
motion.
II. ANALYSIS
In two issues, the Browns argue the trial court erred by (1) striking certain of
their summary-judgment exhibits and (2) rendering summary judgment in Tarbert’s
favor.
A. Authenticity of summary-judgment evidence
The Browns’ first issue concerns their summary-judgment evidence. Tarbert
objected to exhibits A, D, and J to the Browns’ response to Tarbert’s amended
summary-judgment motion. In its final judgment, the trial court stated, “Defendants’
objections to Plaintiffs’ Evidence in opposition to the [amended summary-judgment]
motion are sustained. Exs A, D & J are stricken.”
The Browns first argue the trial court erred by striking “exhibit A” to their
response to Tarbert’s amended summary-judgment motion. At the outset, there is
disagreement as to what “exhibit A” is. The Browns characterize exhibit A as their
residential lease. Exhibit A to the Browns’ response to Tarbert’s amended
summary-judgment motion, however, is listed as “Affidavit of Natalie Brown,”
while exhibit B is listed, confusingly, as “Ex. A. Lease.”6
6
The Browns’ response to Tarbert’s amended summary-judgment motion lists the exhibits
attached to that response as follows:
A. Affidavit of Natalie Brown
B. Ex. A. Lease
C. Ex. B Move-In Inventory Check List
D. Ex. C Message Regarding Mold remediation
E. Ex. D. Mold Remediation Report
F. Ex. E Mold Photo
G. Ex. F Locking Report
3
The trial court’s judgment sustained Tarbert’s evidentiary objections and
struck “Exs A, D & J” without otherwise describing those exhibits. When
interpreting a judgment, this court applies the same rules used when ascertaining the
meaning of other written instruments. See Lone Star Cement Corp. v. Fair, 467
S.W.2d 402, 404–05 (Tex. 1971). When, as here, the judgment is ambiguous, we
consider the entire contents of the judgment and the record in determining the
meaning of the judgment. See id.; see also Point Lookout West, Inc. v. Whorton, 742
S.W.2d 277, 278 (Tex. 1987) (per curiam) (“[T]he mere fact that a judgment is vague
or contradictory does not authorize an appellate court to deviate from the appropriate
standard of review. The conflict or ambiguity must be resolved, if possible, and the
judgment then reviewed under the applicable standard.”).
Looking, then, to the record to determine the contents of the challenged
exhibit, we begin with Tarbert’s objection, which states:
Separately, Exhibit A of Plaintiffs’ Opposition should be stricken as
untimely. It was filed on February 5, 2018, less than seven days before
the February 9 hearing.
The only document in the record before us filed on February 5, 2018 is a
notarized affidavit titled “Verification” signed by Natalie Brown. Moreover, while
titled “Verification,” this signed and notarized statement comports with the common
definition of “affidavit,” which is consistent with the listing of exhibit “A” in the
Browns’ response as the “Affidavit of Natalie Brown.” Cf. Tex. Gov’t Code Ann.
§ 312.011(1) (“‘Affidavit’ means a statement in writing of a fact or facts signed by
H. Ex. G 30 Day Guaranty
I. Ex. H. 30 Day Guaranty Nullification
J. Ex. I Receipts
K. Ex. J Dr. Browne Letter
L. Ex. K Sliding Door Photo
4
the party making it, sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under his seal of office.”). Ultimately, as the
affidavit of Natalie Brown filed February 5, 2018, is the only document that meets
the description of “exhibit A” as set forth in Tarbert’s objection, we conclude that
this affidavit is the “exhibit A” that Tarbert objected to as untimely and the trial court
struck.7 Cf. Tex. R. Civ. P. 166a(c) (“Except on leave of court, the adverse party, not
later than seven days prior to the day of [summary-judgment] hearing may file and
serve opposing affidavits or other written response.”).8
The issue of whether the trial court properly struck this affidavit is not before
this court, given that, in the portion of their brief discussing “exhibit A,” the Browns
discuss their residential lease, not the affidavit.9 See Tex. R. App. P. 33.1(a). We
7
As discussed further below, the striking of the affidavit is consistent with the trial court’s
rendition of no-evidence summary judgment, given that the affidavit was the Browns’ sole means
of authenticating numerous summary-judgment exhibits. See Freightliner Corp. v. Motor Vehicle
Bd. of Tex. Dep’t of Transp., 255 S.W.3d 356, 363 (Tex. App.—Austin 2008, pet. denied) (“If the
language of the judgment is susceptible to more than one interpretation, the one that renders the
judgment more reasonable, effective, and conclusive, and that harmonizes it with the facts and the
law of the case, should be adopted.”).
Even if the affidavit had not been stricken from the record, we note that its contents are
insufficient to authenticate the Browns’ summary-judgment evidence. The affidavit states that “all
exhibits attached [to the Browns’ response to Tarbert’s amended summary-judgment motion] are
true and correct copies provided by me or under my direction[.]” This conclusory language is not
sufficient testimony showing that each exhibit “is what it is claimed to be” as required by Rule of
Evidence 901. Tex. R. Evid. 901(b)(1); see also, e.g., Harpst v. Fleming, 566 S.W.3d 898, 908
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (trial court did not abuse its discretion by
excluding settlement packets on authenticity grounds when witness “did not testify how he
obtained or received the packets, or that the packets’ contents were accurate and unaltered”).
8
There is no indication in the record that the trial court granted leave for this late filing.
See Tex. R. Civ. P. 166a(c).
9
We note that, under the plain language of Texas Rule of Civil Procedure 166a(c), a trial
court has discretion to strike an affidavit opposing summary judgment filed four days before the
summary-judgment hearing as untimely. See Tex. R. Civ. P. 166a(c); Bell v. Moores, 832 S.W.2d
749, 755 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (“It is not an abuse of discretion for
the trial court to refuse to consider untimely affidavits opposing a motion for summary
judgment.”).
5
turn, then, to Tarbert’s argument that, because this affidavit was the Browns’ only
means of authenticating any of their summary-judgment evidence, in its absence the
Browns by definition have “no evidence” to support their claims.10 See In re Estate
of Guerrero, 465 S.W.3d 693, 703 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied) (“Under the summary judgment standard, copies of documents must be
authenticated in order to constitute competent summary judgment evidence.”); see
also Tex. R. Evid. 901(a) (“To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.”). While Tarbert
did not object to each of the Browns’ exhibits on authentication grounds in the trial
court, Tarbert argues they may raise the issue of a complete absence of
authentication for the first time on appeal. See Guerrero, 465 S.W.3d at 706 (“[A]
complete absence of authentication is a defect of substance that is not waived by a
party failing to object and may be urged for the first time on appeal.”) (quotation
omitted).
The Browns respond that Tarbert was required to object to the authenticity of
each exhibit in the trial court because the fact the Browns attempted to authenticate
the exhibits with the untimely affidavit makes Tarbert’s challenge an objection to
form, not substance, which must be preserved in the trial court. See Mansions in the
Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 317–18 (Tex. 2012) (objection
is required to preserve complaint that purported affidavit lacks jurat or other
indication that it was sworn to because those are objections to form). Mansions in
the Forest, however, deals with preservation when an affidavit is challenged as to
form. See id. Here, Tarbert’s argument is not that Natalie’s Brown’s affidavit is
10
As above, in the affidavit, Natalie Brown states that “all exhibits” attached to the
Browns’ response to Tarbert’s amended summary-judgment motion “are true and correct copies
provided by me or under my direction.”
6
defective; indeed, Tarbert does not need to challenge the affidavit, since the trial
court’s ruling striking the affidavit is unchallenged on appeal. See Tex. R. App. P.
33.1(a); Okpere v. Nat’l Oilwell Varco, L.P., 524 S.W.3d 818, 836 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied) (evidence stricken by trial court is not part
of summary-judgment record and is not considered on appeal). Rather, Tarbert
argues that the absence of the affidavit renders the Browns’ remaining exhibits
incompetent due to a “complete absence of authentication,” which is an objection to
substance that may be raised for the first time on appeal. See Guerrero, 465 S.W.3d
at 706.
The Browns also argue that three of their exhibits—their residential lease, a
mold report concerning the leased property, and a letter from the children’s doctor—
were properly authenticated even absent the stricken affidavit. As to the lease, the
Browns argue that, since the lease was attached to their response to Tarbert’s original
motion for summary judgment, it had already been authenticated and the trial court
could take judicial notice of it. The lease, however, was not properly authenticated
when it was attached to the Browns’ original response. While the Browns’ original
response included a declaration from Natalie Brown stating, “I declare under penalty
of perjury the statements made in the foregoing Response to Defendants’ Motion for
Summary Judgment are true and correct,” this declaration did not purport to
authenticate any documents attached to the response. Accordingly, this declaration
did not serve to authenticate any exhibits, and is not evidence on its own, as a verified
summary-judgment response is incompetent to serve as summary-judgment
evidence. See American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994)
(citing Keenan v. Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394 (Tex. App.—Houston
[14th Dist.] 1988, no writ) (pleadings and responses, even if verified, are not
competent summary-judgment evidence)). Moreover, the Browns’ cited case
7
concerning judicial notice is distinguishable. Jones v. Jones concerned a trial court’s
taking judicial notice of a final judgment and a third amended original petition
already a part of its record even though the attached copies were not certified. 888
S.W.2d 849, 852–53 (Tex. App.—Houston [1st Dist.] 1994, no writ). The lease,
however, is not a pleading,11 as were the documents addressed in Jones, and while
the lease was filed more than once, there is no evidence it was ever properly
authenticated. See Guerrero, 465 S.W.3d at 703.
As to the authenticity of the mold report, the Browns argue that it was “signed
by its author, verified by the lab supervisor and contains results of tests conducted
by a state certified inspector in compliance with government regulations; thus, it is
both a public and business record and undisputedly trustworthy.” Nothing in the
report, however, shows that it is sealed or certified under seal as required of a public
record. See Tex. R. Evid. 902(1), (2). Likewise, nothing in the report constitutes a
sufficient affidavit or unsworn declaration conforming to Texas Rule of Evidence
902(10)(B) as required of a business record. See Tex. R. Evid. 902(10). While the
Browns also argue that the report was not offered for the truth of the matters asserted
therein, whether or not the report met a hearsay exception under Texas Rule of
Evidence 803 is immaterial to the issue of whether it was a self-authenticating public
or business record. See Tex. R. Evid. 803(8), 902(1), (2), (10).
The Browns also argue that a letter from a doctor treating Adley and Ily Brown
was self-authenticating because it was “provided to the opposing party” as part of
the Browns’ expert designation. The Browns cite Texas Rule of Civil Procedure
193.7, which states that “[a] party’s production of a document in response to written
discovery authenticates the document for use against that party in any pretrial
11
Even if it were, as noted above, pleadings are not competent summary-judgment
evidence. See American Petrofina, Inc., 887 S.W.2d at 830 (citing Keenan, 754 S.W.2d at 394).
8
proceeding” absent an objection by the producing party. Tex. R. Civ. P. 193.7. Even
assuming the document was “produced” as contemplated by Rule 193.7, the Browns
are the producing party, so the document is not authenticated for their use, but rather
for the opposing parties’ use. See id.
We conclude that none of the evidence presented by the Browns in response
to Tarbert’s amended summary-judgment motion was competent, as none of it was
properly authenticated. Accordingly, we need not address additional arguments
concerning whether the Browns’ exhibits were properly stricken. See Tex. R. App.
P. 47.1. We overrule the Browns’ first issue challenging the trial court’s evidentiary
rulings.
B. Rendition of no-evidence summary judgment on all claims
In their second issue, the Browns make various arguments that the trial court
“erred in entering a final order dismissing the Browns[’] entire case.” We begin with
analysis of Tarbert’s amended no-evidence motion. First United Pentecostal Church
of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017) (“When a party moves for
both traditional and no-evidence summary judgments, we first consider the
no-evidence motion.”).
1. DTPA
First, the Browns argue that although Tarbert challenged on a no-evidence
basis certain elements with regard to DTPA claims based on a “false, misleading, or
deceptive act,” Tarbert did not challenge the DTPA claims actually alleged by the
Browns. In other words, according to the Browns, because Tarbert only sought
“judgment on a [section] 17.50(a)(1) claim,” their motion is legally insufficient and
the trial court granted more relief than requested.
“A motion for a no-evidence summary judgment must specifically ‘state the
9
elements as to which there is no evidence;’ there may be no ‘conclusory motions or
general no-evidence challenges to an opponent’s case.’” Specialty Retailers, Inc. v.
Fuqua, 29 S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
(quoting Tex. R. Civ. P. 166a(i) & 1997 cmt.). A motion that fails to identify and
challenge one or more essential elements of a claim is insufficient as a matter of law
and cannot sustain a no-evidence summary judgment. See Cuyler v. Minns, 60
S.W.3d 209, 212–13 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Such a
challenge may be raised for the first time on appeal. See id. at 213–14.
In their original petition, the Browns alleged they “would show that [Tarbert]
engaged in certain false, misleading and deceptive acts, practices and/or omissions
actionable under the Texas Deceptive Trade Practices - Consumer Protection Act
(Texas Business and Commerce Code, Chapter 17.41, et seq.), as alleged herein
below.” The Browns alleged that Tarbert “engaged in an ‘unconscionable action or
course of action’ to the detriment of Plaintiffs as that term is defined by Section
17.45(5) of the Texas Business and Commerce Code, by taking advantage of the
lack of knowledge, ability, experience, or capacity of [the Browns] to a grossly
unfair degree.” The Browns further alleged “the implied warranty of habitability”
and “the implied warranty of quiet enjoyment” were “breached and therefore
actionable under Section 17.50(a)(2) of the Texas Business and Commerce Code.”
Finally, they alleged they “would show that the acts, practices and/or omissions
complained of were the producing cause of Plaintiffs’ damages more fully described
hereinbelow.”
The question here is whether Tarbert’s no-evidence motion sufficiently
challenged the producing-cause element of the Browns’ DTPA claims. In the
Amended Motion, Tarbert stated:
10
1. DECEPTIVE TRADE PRACTICES
14. The Browns’ claim under the Texas Deceptive Trade
Practices Act requires the Browns to prove that: (1) they are a
consumer; (2) that Defendants engaged in a false, misleading, or
deceptive act(s); and (3) the act(s) constituted a producing cause of the
Browns’ damages. Doe v. Boys Clubs of Greater Dallas, Inc[.], 907
S.W.2d 472, 478 (Tex. 1995).
15. The Browns have not and cannot submit any evidence that
any Defendant engaged in a false, misleading or deceptive act by
leasing the home to the Browns.
16. Furthermore, the Browns have not shown any evidence, by
appointing an expert or producing documentation, that any Defendant
caused the Browns’ damages.
(Emphases added).
No matter the underlying basis of a plaintiff’s DTPA claim—whether based
on a false, misleading, or deceptive act or practice, an unconscionable action or
course of action, a breach of warranty, or an Insurance Code violation—the DTPA
requires the consumer to show that the defendant’s improper conduct was a
“producing cause” of the consumer’s injury. See Tex. Bus. & Com. Code Ann.
§ 17.50(a).12 “Producing cause” means “a substantial factor which brings about the
12
Section 17.50 of the DTPA, entitled “Relief for Consumers,” provides in pertinent part:
(a) A consumer may maintain an action where any of the following constitute a
producing cause of economic damages or damages for mental anguish:
(1) the use or employment by any person of a false, misleading, or deceptive
act or practice that is:
(A) specifically enumerated in a subdivision of Subsection (b) of
Section 17.46 of this subchapter; and
(B) relied on by a consumer to the consumer’s detriment;
(2) breach of an express or implied warranty;
(3) any unconscionable action or course of action by any person; or
(4) the use or employment by any person of an act or practice in violation
of Chapter 541, Insurance Code.
Tex. Bus. & Com. Code Ann. § 17.50(a).
11
injury and without which the injury would not have occurred.” Doe v. Boys Clubs of
Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995). This requires evidence that
the consumer was adversely affected by the defendant’s improper conduct. See id.
(citing Home Sav. Ass’n v. Guerra, 733 S.W.2d 134, 136 (Tex. 1987)).
Here, Tarbert raised a no-evidence challenge to this element under the
DTPA—that any of their alleged acts “constituted a producing cause of the Browns’
damages.” The Browns do not otherwise contend that the process of raising a
genuine fact issue on the “producing cause” of their DTPA claims would be different
than or require different evidence than on any other DTPA theory. If the Browns
failed to meet their burden of production on this core element, any other DTPA
theory “also necessarily would fail.” See Stow v. Slammin 4, LLC, No. 14-15-00044-
CV, 2016 WL 3134520, at *6 (Tex. App.—Houston [14th Dist.] June 2, 2016, pet.
denied). To conclude otherwise arguably would permit the Browns to “side-step”
summary judgment. See id. at *5 (“While this court acknowledges the need for
compliance with rule 166a(i), at the same time we recognize that ‘a plaintiff may not
side-step a no-evidence summary judgment merely by filing an amended claim.’”
(comparing Fuqua, 29 S.W.3d at 147–48 (trial court erred in granting summary
judgment when amended petition included new claims conversion and quantum
meruit and no-evidence motion did not address essential elements of those claims),
with Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 435–37 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (corrected op.) (trial court properly granted summary
judgment when amended petition alleged “new variations of [plaintiffs] original
negligence claims” and no-evidence motion challenged same essential elements of
duty, breach, and causation))).
We conclude Tarbert’s no-evidence-summary-judgment motion encompassed
12
the Browns’ DTPA claims.13
2. Evidence supporting claims
In the second part of their second issue, the Browns argue that the trial court
erred in rendering no-evidence summary judgment on their claims because they
“produced a scintilla of evidence on each contested element of their contested
claims.” The Browns’ response to Tarbert’s amended no-evidence
summary-judgment motion, however, relied solely on the Browns’ own exhibits as
evidence. 14 As explained above, none of the Browns’ exhibits constitutes competent
summary-judgment evidence. Moreover, while the Browns cite on appeal evidence
attached to their motion to reconsider the judgment and for a new trial, the trial court
struck that evidence, and the Browns do not challenge that ruling on appeal. Under
the circumstances, this court does not consider that evidence. See Tex. R. App. P.
13
The Browns also argue that the trial court granted more relief that requested because,
“[a]s to damages, [Tarbert] only attack[s] the Browns’ claim to damages requiring expert
testimony to prove causation.” This is incorrect and mischaracterizes the scope of the DTPA
portion of Tarbert’s no-evidence challenge, which, as quoted in the Browns’ brief, encompasses
all damages: “Furthermore, the Browns have not shown any evidence, by appointing an expert or
producing documentation, that any Defendant caused the Browns’ damages.” Likewise, although
the Browns suggest that Tarbert only challenged their Property Code claims as to repairs to smoke
detectors without addressing their claim for repairs to door locks, Tarbert’s amended
summary-judgment motion specifies that the Browns brought Property Code claims concerning
repairs to both “locking devices” and “smoke detectors,” and states, “The Browns have provided
no proof that any Defendant failed to repair or replace these devices.”
14
Tarbert attached to its amended summary-judgment motion certain pleadings and
deposition excerpts. “In reviewing the propriety of summary judgment on no-evidence grounds,
we ignore evidence attached to a combined summary judgment motion and offered in support of
traditional summary judgment, unless the non-movant directs the trial court to that evidence in her
response to the movant’s no-evidence motion.” Perkins v. Walker, No. 14-17-00579-CV, 2018
WL 3543525, at *4 (Tex. App.—Houston [14th Dist.] Jul. 24, 2018, no pet.) (mem. op.) In their
summary-judgment responses, the Browns did not cite or point to the evidence attached to
Tarbert’s amended summary-judgment motion. Therefore, this court must ignore that evidence
and may not rely on it as a basis for reversing the trial court’s no-evidence summary judgment.
See id.; see also See American Petrofina, Inc., 887 S.W.2d at 830 (citing Keenan, 754 S.W.2d at
394) (pleadings and responses, even if verified, are not competent summary-judgment evidence)).
13
33.1(a); Okpere, 524 S.W.3d at 836.
We conclude that the Browns have not shown that the trial court erred in
granting Tarbert’s amended no-evidence summary-judgment motion. Accordingly,
we do not reach the Browns’ arguments concerning traditional summary judgment,
which concern the same claims addressed on no-evidence grounds. See Tex. R. App.
P. 47.1. We overrule the Browns’ second issue.
III. CONCLUSION
We affirm the trial court’s judgment as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Frost and Justices Spain and Poissant (Frost, C.J.,
concurring).
14