Reverse and Render     in part; Affirm in part: Opinion     hied November 27, 2012.




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                                        No. 05-11-01 468-CV


                         ADT SECURITY SERVICES, INC., Appellant

                                                 V.

                        VAN PETERSON FINE JEWELERS, Appellee


                       On Appeal from the 191st Judicial District Court
                                    Dallas County, Texas
                              Trial Court Cause No. 09-12111


                                           OPINION
                          Before Justices Moseley, FitzGerald, and Myers
                                   Opinion By Justice Moseley

        This is an agreed interlocutory appeal from an order denying ADT Security Services, Inc.’s

two motions for summary judgment. Initially, the trial court granted both of ADT’s motions, which

disposed of all claims brought by Van Peterson Fine Jewelers against ADT. However, Van Peterson

filed a motion for new trial, which the trial court granted. In the order granting Van Peterson’s

motion for new trial, the trial court also denied ADT’s motions for summary judgment.

        In four issues on appeal, ADT argues the trial court erred by denying its motions for summary

judgment because (1) Van Peterson cannot show ADT was responsible for an unknown person’s

conduct; (2) ADT did not owe a duty to Van Peterson; (3) the parties’ contract includes a limitation-

of-liability provision that defeats Van Peterson’s claims for breach of contract, negligence, gross
negligence, and negligent misrepresentation and (4) Van Peterson’s subrogated insurer can not

pursue a claim under the Texas Deceptive Trade Practices Act.

        Because we conclude this appeal may materially advance the ultimate teiirnnation ot the

litigation, we consider ADTs arguments.     Set   Act of’ May 27. 2005. 79th Leg., R.S., ch. 1051,   § I
2005 Tcx. (len. Laws 35 12. 35 13 (applyinu to lawsuits tiled on or after September 1, 2005).

amended by Act of May 25, 2011, 82d Leg., ch. 203,       § 3.01, 201 1 Tex. Gen. Laws 758, 759 (current
version at TEx. Civ. PRAc. & REM. CoDE ANN.         §   51.014 (West Supp. 2011)). However, for the

reasons set forth herein, we reject ADT’s first issue and sustain its third issue. We do not reach the

merits of ADT’s second and fourth issues. As a result, we reverse the trial court’s denial of ADT’s

traditional motion for summary judgment as to Van Peterson’s claims for negligence, gross

negligence, breach of contract, and negligent misrepresentation and render judgment in ADT’s favor

on those claims. In all other respects. we afflrm the trial court’s order    and   remand this case for

further proceedings.

                                            Background

       Van Peterson operated a retail jewelry store. In 1999, Van Peterson and ADT entered into

a contract whereby ADT agreed to provide commercial alarm services to Van Peterson. In its

lawsuit, Van Peterson alleges that in 2007 an unidentified man wearing an ADT uniform and driving

an ADT van came to the jewelry store and sold Van Peterson a cellular backup device for its alarm

system. Van Peterson contends that instead of installing the cellular backup device, the man disabled

the alanm

       In September 2007, Van Peterson’s store was burgled, the wires for the security alarm were

cut, the backup system was destroyed, and approximately $1 million worth of jewelry was stolen.




                                                  —2—
                                         Procedural History

        Van Peterson sued ADT for its damages resulting from the burglary. It alleged causes of

action for breach of contract, negligence, gross negligence, negligent misrepresentation. civil

conspiracy, fraud, and violations of the Deceptive Trade Practices Act (DTPA). in response. ADT

asserted that the unidentified man was not its employee, that it did not sell Van Peterson a cellular

backup device, and that the parties’ contract includes a limitation—of—liability provision that defeats

several of Van Peterson’s claims.

        ADT filed a traditional motion for summary judgment; the trial court granted the motion in

part and dismissed Van Peterson’s claims for breach of contract, negligence, gross negligence, and

negligent misrepresentation. ADT then Ii led a no-evidence motion for summary judgment on Van

Peterson’s Di’PA, civil conspiracy, and fraud claims, which the trial court granted. The court

ordered Van Peterson take nothing on its claims against ADT.

        Van Peterson filed a motion for new trial asking the trial court to reconsider ADT’s motions

for summary judgment. The trial court granted the motion for new trial and denied both of ADT’s

motions for summary judgment.

       Pursuant to former section 51.014(d) of the Texas Civil Practice and Remedies Code, the trial

court then signed an order allowing the parties to submit this agreed interlocutory appeal from its

order granting Van Peterson’s motion for new trial and denying ADT’s motions for summary

judgment. See it!. This appeal followed.

                                             Analysis

       ADT does not challenge the trial court’s authority to rule on the motion for new trial. it

challenges the trial court’s denial of its motions for summary judgment.
        in its lirst issue, ADT argues Van Peterson’s claims fail because Van Peterson cannot prove

ADT is vicariously liable for the conduct of the unidentified person who allegedly came to Van

Peterson’s store to upgrade the alarm. iherelore, ADT argues, the trial court erred by denying its

motion for summaryjudgment. However, ADT (lid not assert this argument as a basis for summary

judgment in either of its motions. ADT first raised this argument in its reply in support of its no-

evidence motion for summary judgment. Without obtaining Van Peterson’s consent, ADT was not

entitled to raise a new grounds for summary judgment in its reply to Van Peterson’s response. See

All Metals Fahricating. Inc. v. Paste, Gen. Contracting, Inc., 338 S.W.3d 615, 622 (Tex.

App.•-Dallas 2011. no pet.) (citing Sandc’i:v v L’apitol Area Council, 930 S.W.2d 905. 911 (Tex.

App.—Austin 1996, no writ)). Thus, we reject ADT’s first issue.

        In its third issue, ADT asserts the trial court erred by denying its traditional motion for

summary judgment, at least in part, because the parties’ contract includes a limitation—of—liability

provision that defeats Van Peterson’s claims for negligence, gross negligence, breach of contract,

and negligent misrepresentation. We apply a well-established standard for reviewing a traditional

summary judgment under rule 1 66a(c). See TEX. R. Civ. P. I 66a(c); Nixon v. Mr Prop. Mgmt. Co.,

690 S.W.2d 546, 548-49 (Tex. 1985). We review a trial court’s summary judgment de novo. See

Provident Li/è & Accident Ins. Co.   i   Knott, 128 S.W.3d 211, 215 (Tex. 2003). Once the movant

establishes its right to summary judgment as a matter of law, the burden shifts to the non-movant to

present evidence raising a genuine issue of material fact, thereby precluding summary judgment.

City of Houston v Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Ta!fbrd v. Columbia

Med. C’tr at Lancaster Subsidiary, L.P, 198 S.W.3d 462, 464 (Tex. App.—Dallas, 2006, no pet.).

       The parties entered into a Commercial Sales Proposal/Agreement, immediately above the

signature line for Van Peterson’s representative, the contract states: “ATTENTION iS DIRECTED




                                                 —4-
TO TilE WARRANTY LIMIT OF LIABILF1’Y AND OUtER CONDITIONS ON THE

REVERSE SIDE.” Under the heading “TERMS AND CONDITIONS”                        on   the following page.

the contract states:


        IT IS UNDERSTOOD THAT ADT IS NOT AN INSURER, THAT
        INSUItNC Ii. IF N\ 511 LI HF. OB I 1N ED B\ I HE (US [OMER AND
       THAT THE AMOUNTS PAYABLE TO ADT HEREUNDER ARE BASED
        UPON I I-Ui. ‘s LUL 01 I ilL SF R iCES AN!) I HE SCOPF OF I IAB1LI1 V
       AS HEREIN SEI FOR1H AND ARE UNRELAIED TO IHE VALUE OF
        I HE ( IJSTOMER’S PROPEWI \ OR PROPERTY OF OTHFRS LOCAU D
       IN CUSTOMER’S PREMISES.              CUSTOMER AGREES TO LOOK
       EXCLIJSIVELV TO CUSTOMER’S INSURER TO RECOVER FOR
       INJURIES OR DAMAGE iN THE EVENT OF ANY LOSS OR iNJURY AND
       RELEASES AND WAIVES ALL RIGH r OF RECOVERY AGAINST ADT
       ARiSING BY WAY OF SUBROGATION ADT MAKES NO GUARAN I F E
       OR W’RRANI\, [‘CI UDLNC AN IMPI lED WARRANI’’ OF
       MERCHANTABILITY OR FiTNESS, THAT THE SYSTEM OR SERVICES
       SUPPLiED, WILL AVERT OR PREVENT OCCURRENCES OR THE
       CONSEQUENCES I HEREFROM, WHICH THE SYSTEM OR SERVICES
       IS DFSIGNF 1) 10 I)ETEC1          THE CUS1OMER DOES NOT DESIRF
       TillS CONTRACT TO PROVIDE FOR FULL LIABILITY OF ADT ANI)
       AGREES THAT AI)T ShALL BE EXEMPT FROM LIABiLITY FOR LOSS,
       DAMAGE OR INJURY DUE DIRECTLY OR INDIRECTLY TO
       OCCURRENCES, OR CONSEQUENCES THEREFROM, WHICH THE
       SFRVICE OR SYS] EM IS DESIGNED TO DEl ECT OR AVERT                      AND
       THAT TilE PROVISIOfS OF THIS PARAGRAPH SHALL APPLY IF LOSS,
       DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN,
       RESULTS DIRECTLY OR 1ND1RECTLY TO PERSON OR PROPERTY
       FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS
       IMPOSED BY THIS CONTRACT OR FROM NEGLiGENCE, ACTIVE OR
       OTHERWISE, STRICT LIABILITY, VIOLATiON OF ANY APPLICABLE
       CO?SUMER PROTECTION LAW OR ANY OTHER ALLEGED FAULT ON
       THE PART OF ADT, ITS AGENTS OR EMPLOYEES.
       Van Peterson argues the DTPA voids limitation-of-liability provisions like this one.

However, the DTPA provision Van Peterson cites addresses a party’s attempted waiver of a claim

brought under the DTPA. See TEx. Bus. & C0M. CODE             §   17.42.   The limitation-of-liability

provision in the contract waives only Van Peterson’s claims for negligence, gross negligence, breach

of contract, and negligent rnisrepresentation—not its DTPA claim. Thus, Section 17.42 does not
invalidate the limitation provision. 5cc .1 rtliur ‘.c (Jarugc, Inc. v   RucaIChii1Ij   Sec. Srs.. Inc., 997

S.W.2d 803, 810 (Tex. i\pp.—Dallas 1999, no writ) (parties’ agreement to limit liability for future

negligence was enforceable and favored by public policy).

        The liability waiver in ADT and Van Peterson’s contract provides \‘in Peterson will look

only to its insurer to recover for injuries or damages in the event of loss, including losses attributable

to ADT’s performance or nonperformance of its obligations under the contract or from negligence.

Because Van Peterson contractually agreed to seek recover from its insurer, and only its insurer,

in the event of a loss due to breach of contract or negligence, and because Van Peterson now seeks

to recover those damages from ADT, the trial court erred by denying ADT’s traditional motion for

summary judgment on Van Peterson’s claims for negligence, gross negligence, breach of contract,

and negligent misrepresentation. We sustain ADT’s third issue.

        Because we sustain ADT’s third issue, we need not address ADT’s second issue in which it

argues ADT did not owe Van Peterson a duty to monitor or maintain its alarm system and, therefore,

could not be held liable for damages under theories of negligence, gross negligence, or negligent

misrepresentation. TEx. R. APP. P. 47.1.

       ADT’s fourth issue states: “Van Peterson’s subrogated insurer cannot pursue a claim under

the DTPA because it is not a ‘Consumer.” ADT argues “the trial court erred in allowing [the

insurer] to pursue its DTPA claim.” Van Peterson’s insurer may be involved in this litigation, but

is not apartv to this litigation. Only Van Peterson sued ADT for damages. The insurer did not join

ADT as a plaintiff and the insurer has not been sued as a third party. Therefore, any opinion from

this Court regarding whether the insurer could pursue a claim under the DTPA would be advisory.




                                                  —6--
 Sec genera/li Seater           mi’s.,   LLC. v l%erjee, 358 S.W3d 841, 44 (Tex, App.- Dallas 2012, no

 pet.) (citing Dallas fran IIoi’tli In! 1            AU
                                                     )
                                                     7 OI’t      8(1.   vANS H 0/      Thiicab Operators, US’A. 335 S.W.3d

 361, 364 (Tex. App.—Dallas 2010, no pet.). We decline to address ADT’s fourth issue.

                                                               Con ci USi() II

            We reverse the trial         court’s   denial of AD F’s traditional motion tbr summary judgment as to

 Van Peterson’s claims for negligence, gross negligence, breach of contract, and negligent

 misrepresentation and render judgment in ADT’s favor on those claims. In all other respects, we

 affirm the trial court’s order and remand this case for 1
                                                         furtherprpeeedings.



                                                                                                         I   /             I



                                                                                               / //              /,
                                                                                                                        /
                                                                            J1MMOSELEY’
                                                                            Jyl’STI CE



 11 1468F.P05




    Our opinion does not address the trial cout’s denial of ADT”s motions for summa’ judgment with respect to \n Peterson’s claims for civil
    t
conspiracy, fraud, or violations of the DTPA.
                                                 nf Apprata
                           FiftIi Jitrirt         tif Iixw tt        Ua11a
                                           JUDGMENT
AliT SECURITY SERVICES, INC.,                            Appeal from the Court Name 19 1st Judicial
Appellant                                                District Court of Dallas County, Texas.
                                                         (Tr.Ct.No, Cause No. DC-09- 12 I Il-i).
No. (b-I l-01468-CV              V.                      Opinion delivered by Justice Moseley.
                                                         Justices FitzGerald and Myers participating.
VAN PETERSON FINE JEWELERS,
Appellee

         In accordance with this Court’s opinion of this date, the July 29, 2011, order of the trial court
 is REVERSED IN PART and judgment is RENDERED granting ADT Security Services, Inc.’s
 traditional motion for summary judgment as to Van Peterson Fine Jewelers’ claims for negligence,
 gross negligence, breach of contract. and negligent misrepresentation. We AFFiRM the trial court’s
order with respect to all other claims addressed in ADT Security Services. Inc.’s traditional motion
 for summary judgment and ADT Security Services, Inc.’s no evidence motion for summary
judgment, We REMAND this case to the trial court for further proceedings.

        It is ORDERED that each party bear their own costs of appeal.


Judgment entered November 27, 2012.
