Affirmed and Memorandum Opinion filed October 25, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-00917-CV


  A.P. KELLER, INC., ALBERT P. KELLER, KATHLEEN KELLER, BRIAN
  KELLER, INDIVIDUALLY AND AS NEXT FRIEND OF CARSON KELLER
      AND DYLAN KELLER, LESLEY KELLER, ALBERT L. KELLER,
   INDIVIDUALLY AND AS NEXT FRIEND OF LONDON SARA KELLER,
 BERKELEY EVA KELLER, AND ALBERT SANDERS KELLER, AND LAURA
                       ANN KELLER, Appellants

                                            V.

 CONTINENTAL AIRLINES, INC. AND AIRSERV CORPORATION, Appellees


                   On Appeal from the County Court at Law No. 2
                               Harris County, Texas
                         Trial Court Cause No. 947110-A


                   MEMORANDUM OPINION

      Appellants, A.P. Keller, Inc., Albert P. Keller, Kathleen Keller, Brian Keller,
Individually and As Next Friend of Carson Keller and Dylan Keller, Lesley Keller,
Albert L. Keller, Individually and As Next Friend of London Sara Keller, Berkeley Eva
Keller, and Albert Sanders Keller, and Laura Ann Keller, appeal a summary judgment in
favor of appellees, Continental Airlines, Inc. and Airserv Corporation, in appellants‘ suit
seeking damages allegedly resulting from cancellation of their reservations on a
Continental flight. We affirm.

                                     I. BACKGROUND

       A.P. Keller, Inc. purchased tickets on a Continental flight for eleven members of
the Keller family to travel on March 14, 2009 from Houston to Salt Lake City, Utah for a
ski vacation. When the tickets were purchased in October 2008, the flight was scheduled
to depart at 9:40 a.m. However, in January 2009, Continental changed the departure time
to 9:00 a.m. Continental informed appellants‘ travel agent of the change, but appellants
claim the travel agent did not notify them. Six weeks before the flight, appellants‘
assistant, Cindy Giles, printed the family‘s seat assignments from Continental‘s website.
Although the printout showed the new departure time, Giles did not notice the change.
Giles also accessed the website several other times before the flight, including the
preceding day, to check various matters such as baggage charges but did not notice the
change in departure time. Further, appellants did not check in online before the flight.

       Appellants arrived at the airport at 8:15 a.m. At about 8:20, they began checking
nineteen items, including luggage, car seats, and ski equipment, with a skycap. Due to
equipment difficulties, the skycap could not initially print all nineteen claim tickets, but a
Continental employee, Darren Elwood, eventually assisted in generating all the claim
tickets. The skycap then experienced difficulties printing the boarding passes. At about
8:30 a.m., a family member remarked that a departure sign showed the flight scheduled
for 9:00 a.m. The family again sought assistance from Elwood in printing the boarding
passes, but it was several minutes before he could attend to them because he was busy
with other passengers who preceded appellants in line.

       By about 8:40 a.m., Elwood stated that the flight was boarding and clearing
standby passengers. The senior family member, Albert Keller, Sr. remarked, ―Give me
some boarding passes, and we‘ll get on there.‖ Elwood pointed out the line at security,
which Keller admitted in his deposition was ―longer than usual‖ due to Spring Break
travelers, and said the family would not make the flight. In response to Keller‘s requests,

                                              2
Elwood stated the airline was not permitted to escort the family through security or
―hold‖ the plane and inform gate personnel that they were enroute.

       Elwood successfully rebooked five of the tickets on another airline for a flight two
days later but stated that he had to work on rebooking the other six tickets. The family
first chose the rebooking option but then decided it was unworkable because they had
prepaid for other aspects of the trip and several other family members were already in
Utah. The family then chartered a plane at a cost of $26,988.84 for the flight to Salt Lake
City but returned to Houston after the vacation on the Continental tickets previously
purchased. Continental reimbursed them for the unused portions of their tickets and
provided $100 travel vouchers.

       Appellants sued Continental and Airserv, which employed the skycap who
serviced appellants, for breach of contract and negligence.                Appellants alleged that
Airserv was Continental‘s ―actual and apparent agent.‖                 Appellants also sued their
individual travel agent and his company.               Continental and Airserv filed separate
traditional motions for summary judgment.1 On September 1, 2010, the trial court signed
separate orders granting the motions for summary judgment of both Continental and
Airserv and ordering that appellants take nothing from either defendant. On September
16, 2010, the trial court severed the claims against appellees from the pending claims
against the travel agents, thereby making the September 1, 2010 orders a final judgment.

                                   II. STANDARD OF REVIEW

       A party moving for traditional summary judgment must establish there is no
genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex.
R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). A defendant moving for summary judgment must conclusively negate at
least one element of the plaintiff‘s theory of recovery or plead and conclusively establish
       1
          The trial court previously granted an earlier motion for summary judgment filed by Continental
but later granted appellants‘ motion to reconsider and set aside the summary judgment. Subsequently,
Continental and Airserv filed the motions for summary judgment that the trial court granted and are at
issue on appeal. Hereinafter, all references to motions for summary judgment mean these latter motions.

                                                   3
each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,
197 (Tex. 1995). If the defendant establishes its right to summary judgment, the burden
shifts to the plaintiff to raise a genuine issue of material fact. Id. We review a summary
judgment de novo. Knott, 128 S.W.3d at 215–16. We take as true all evidence favorable
to the nonmovant and indulge every reasonable inference and resolve any doubts in his
favor. Id. We must uphold a summary judgment if the appellant does not challenge and
negate every ground on which summary judgment could have been granted. Wohlstein v.
Aliezer, 321 S.W.3d 765, 772 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

                                        III. ANALYSIS

       Under Rule 5 of Continental‘s Contract of Carriage governing the plane tickets, it
may cancel the reservation and deny boarding of a passenger who does not comply with
the check-in time limits set forth in Rule 5. These time limits include the requirement
that a passenger on a domestic flight must complete his ticket purchase, check in, obtain a
boarding pass, and complete baggage check at least thirty minutes before the scheduled
departure time and be present at the loading gate at least fifteen minutes before departure.
Rule 5 also provides that the time limits are minimum requirements, passenger and
baggage processing times may differ among airports, and the passenger bears the
responsibility to arrive at the airport with sufficient time to satisfy the time limits.
       Continental acknowledges that it cancelled appellants‘ reservations but maintains
it complied with the Contract of Carriage because appellants had not completed the
check-in process by 8:40 a.m. According to appellants, by arriving at the airport at 8:15
a.m. for a 9:00 a.m. flight, they allowed sufficient time (fifteen minutes) to complete the
check-in process before the 8:30 a.m. deadline but appellees‘ equipment malfunction
prevented appellants from timely completing these actions. They argue that therefore
Continental, as opposed to appellants, ―flunked‖ the boarding process. Thus, appellants
effectively contend that Continental breached the Contract of Carriage by improperly
cancelling the reservations or denying boarding to appellants and its alleged negligence



                                               4
resulted in the cancellation. Appellants seek to recover either the cost of the chartered
plane or the pre-paid expenses for the vacation because these amounts were comparable.2
        In its motion, Continental presented two alternative grounds for summary
judgment relative to all of appellants‘ claims: (1) they are barred under the preemption
clause of the federal Airline Deregulation Act (ADA); or (2) even if preemption does not
apply, appellants‘ claims for consequential damages are expressly precluded under the
Contract of Carriage. Airserv also moved for summary judgment on the preemption
ground, arguing that, as Continental‘s vendor, Airserv is entitled to assert the same
preemption defense as Continental.
        For the reasons discussed below, we uphold the summary judgment based on the
preemption ground. Because appellants present the same claims and appellate arguments
relative to both appellees and do not challenge Airserv‘s contention that it may claim the
same defenses as Continental, we will address the preemption ground collectively for
appellees.3
A.      The Preemption Clause
        The preemption clause of the ADA provides in pertinent part:

        Except as provided in this subsection, a State, political subdivision of a
        State, or political authority of at least 2 States may not enact or enforce a
        law, regulation, or other provision having the force and effect of law related
        to a price, route, or service of an air carrier that may provide air
        transportation under this subpart.
49 U.S.C. § 41713(b)(1).
        Appellees rely on Delta Airlines, Inc. v. Black, 116 S.W.3d 745 (Tex. 2003), a
seminal Texas case regarding the preemption clause. In Black, the plaintiff purchased


        2
          Despite alleging negligence as one of their claims, appellants also contend on appeal that
Continental‘s cancellation of the reservations was ―malicious,‖ although appellants do not seem to assert
a separate cause of action based on this allegation.
        3
           Appellants‘ arguments on appeal focus almost entirely on the alleged liability of Continental,
although they mention Airserv when noting Continental is purportedly liable for the actions of Airserv as
its alleged agent. Appellants do not specifically focus on any alleged theory of independent liability
against Airserv. Nevertheless, because we ultimately affirm summary judgment for both appellees, we
will treat appellants‘ arguments as challenging summary judgment in favor of both appellees.

                                                   5
two airline tickets to travel with his wife from Dallas to Las Vegas, and the invoice from
his travel agent showed two first-class reservations. Id. at 747. At the airport, the gate
supervisor informed the plaintiff that the airline had a confirmed first-class seat for the
plaintiff but only a confirmed coach seat for his wife. Id. The airline offered several
alternatives which all involved either one or both passengers traveling in coach or the
passengers flying first-class albeit on a later or indirect flight. Id. The plaintiff declined
all offers and instead chartered a private jet to the couple‘s destination. Id. at 748. He
then sued the airline for breach of contract, fraud, and negligent misrepresentation and
the gate supervisor for misrepresentation only, seeking to recover the cost of the
chartered flight. Id. The Supreme Court of Texas ultimately affirmed the trial court‘s
grant of summary judgment in favor of both defendants based on the preemption
doctrine. Id. at 748–57.
       As the court recognized, the United States Congress deregulated the airline
industry in 1978 by enacting the ADA, which includes an express preemption clause. Id.
at 749 (citing 49 U.S.C. § 40101(a)(6), (a)(12)(A)). Because of the broad ―related to‖
language used therein, the preemption clause not only preempts states from actually
prescribing rates, routes, or services of an air carrier but also preempts state enforcement
actions ―‗having a connection with or reference to, airline rates, routes, or services.‘‖ Id.
at 749–50 (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384–86 (1992)).
The Black court applies a two-prong test to determine whether a claim is preempted by
the ADA: (1) whether the claim is related to an airline‘s prices or services within the
meaning of the preemption clause; and (2) whether permitting the claim to proceed would
constitute enactment or enforcement of a state law within the meaning of the preemption
clause. Id. at 752, 753.

       With respect to the first prong, the court concluded that all the plaintiff‘s claims
concerning denial of first-class status were ―related to‖ the airline‘s boarding procedures
and seating policies. Id. at 753, 756. The court stated that, although various courts had
fashioned inconsistent standards for determining whether a state law claim ―relates to an


                                              6
airline‘s services,‖ the majority of courts have held state law claims involving seating and
boarding procedures ―relate to services‖ within the scope of the preemption clause. Id.
The court recognized that ―seating policies and boarding procedures are not peripheral to
the operation of an airline, but are inextricably linked to the contract of carriage between
a passenger and the airline and have a definite ‗connection with or reference to‘ airline
services.‖ Id. (quoting Morales, 504 U.S. at 384).

       With respect to the second prong, the court stated that, in deciding whether
contract claims are preempted, it must distinguish between ―obligations dictated by the
State‖ and those voluntarily undertaken by the airline. Id. (citing Am. Airlines, Inc. v.
Wolens, 513 U.S. 219, 233 (1995)). In particular, when parties privately negotiate a
contract‘s terms and then sue in state court for breach of those terms, there is generally no
specter of state-imposed regulation. Id, at 753–54 (citing Wolens, 513 U.S. at 228–29).
Thus, enforcement of a contractual commitment voluntarily undertaken does not amount
to enforcement of state law as forbidden by the preemption clause. Id. at 754 (citing
Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 281–82 (Tex. 1996)).            As an
example, the court cited Wolens, in which the United States Supreme Court determined
that permitting a breach-of-contract claim based on an airline‘s retroactive changes to its
frequent-flyer program would not constitute state enforcement forbidden by the
preemption clause because a frequent-flyer program is a self-imposed undertaking
between private parties and therefore too tenuous or peripheral to constitute state
enforcement. Id. (citing Wolens, 513 U.S. at 228–29).

       In contrast, the court held that the plaintiff‘s claims relating to the airline‘s
ticketing and boarding procedures implicated directly the federal interest in deregulated
air transportation and therefore, contrary to the purpose of the ADA, bore the potential
for ―‗intrusive regulation of airline business practices.‘‖ Id. (quoting Kiefer, 920 S.W.2d
at 282). As the court recognized, ―[i]f passengers were permitted to challenge airlines‘
boarding procedures under state common law, the airline industry would potentially be
subject to regulation by fifty different states.‖ Id. at 756 (citing Smith v. Comair, 134

                                             7
F.3d 254, 258–59 (4th Cir. 1998)). Finally, the court held that the plaintiff‘s tort claims
for fraud and negligent misrepresentation, if allowed, would also amount to enforcement
of state law. Id. at 756–57.

       In the present case, appellees contend that, likewise, all of appellants‘ claims
―relate to‖ Continental‘s ―services‖ and seek enforcement of state law because they
request consequential damages (the cost of their private chartered jet) under state contract
and tort law based on Continental‘s boarding procedures—its decision to cancel
appellant‘s reservations for their failure to comply with the time limits set forth in the
Contract of Carriage, irrespective of which party was at fault for the non-compliance.
B.     Appellants’ Contentions
       In their two stated issues, appellants assert (1) the preemption doctrine does not
apply, or (2) alternatively, even if the doctrine applies, appellants are entitled to recover
damages under the Contract of Carriage.
       Although appellants present an appellate issue generally stating the preemption
doctrine does not apply, the sole argument that follows does not concern applicability of
the preemption doctrine.        Instead, the argument concerns Continental‘s alternative
summary-judgment ground that, even if appellants‘ claims are not barred by the
preemption clause, the Contract of Carriage specifically precludes recovery of
consequential damages.         Specifically, appellants argue that they are not bound by
Continental‘s contractual limitation on damages because there is no evidence Continental
provided notice to appellants of the limitation as required under federal law. See 14
C.F.R. § 253.4 (providing that ―an air carrier may not claim the benefit as against the
passenger of, and the passenger shall not be bound by, any contract term incorporated by
reference [in the plane ticket] if notice of the term has not been provided to that passenger
in accordance with‖ applicable regulations governing such notice.)

       Appellants cite no authority that this notice provision is a prerequisite to
application of, or otherwise pertains to, the preemption clause. Moreover, appellants
advance no argument regarding the two prongs of the preemption analysis, and they do

                                              8
not cite Black under this issue, much less attempt to distinguish it from the facts of this
case. Accordingly, appellants have, in effect, failed to address the preemption doctrine in
their issue purporting to challenge its application.

       In their second issue, appellants state, ―Even if this Court determines preemption
applies, that assumption does not dictate the absence of any relief.‖ Then, appellants
again advance arguments that mostly seem to challenge Continental‘s alternative
summary-judgment ground that the Contract of Carriage precludes recovery of
consequential damages: (1) airlines would be incentivized to arbitrarily cancel
reservations if they may successfully disclaim payment of consequential damages; (2) the
provision in the Contract of Carriage cited by Continental does not preclude
consequential damages; and (3) appellants may recover consequential damages because
Continental violated rules regarding tender and payment of denied boarding
compensation.

       As appellees assert, appellants seem to ―put[] the cart before the horse‖ by
suggesting their claims may proceed despite the preemption doctrine without first
demonstrating the doctrine is inapplicable.          However, although appellants do not
expressly challenge application of the preemption doctrine under this second issue, their
third contention regarding denied boarding compensation could be construed as
challenging application of the doctrine, rather than a reason their claims may proceed
even if the doctrine is applicable; this contention is the only instance in which appellants
cite Black, and in the referenced portion of Black, the court considered a similar argument
relative to its effect on the preemption doctrine.

       To support their contention, appellants cite federal regulations governing denied
boarding compensation relative to ―oversold‖ flights and advance reasons that
Continental allegedly failed to comply: it did not pay or tender the required minimum
compensation; it was not permitted to offer vouchers unless they informed appellants of
their rights and appellants rejected those rights; and it did not provide the required written
explanation regarding denied boarding compensation. See generally 14 C.F.R. § 250.1–

                                              9
.11.   Appellants then cite the particular regulation requiring an airline to inform a
passenger who has been denied boarding, ―Acceptance of the [required minimum]
compensation may relieve (name of air carrier) from any further liability to the passenger
caused by its failure to honor the confirmed reservation. However, the passenger may
decline the payment and seek to recover damages in a court of law or in some other
manner.‖ Id. at § 250.9(b). To the extent that appellants suggest this language prescribes
an exception to the preemption doctrine allowing a suit to proceed in state court for direct
and consequential damages, appellants were not denied boarding within the purview of
the above-cited regulations.
       These regulations govern the situation in which a passenger is denied boarding
because the flight was oversold (i.e., ―bumped‖) and no other passenger has accepted the
airline‘s request for a volunteer to relinquish his seat in return for certain compensation.
See generally id. at 250.1–.11. Appellants presented evidence that they were denied
boarding and the flight was oversold. However, their own summary-judgment evidence
establishes they were not denied boarding because the flight was oversold. In particular,
appellants were not checked in but denied boarding at the gate because the flight was
oversold and there were an insufficient number of volunteers. To the contrary, they were
denied boarding because their reservations were cancelled for failure to comply with the
check-in time limits, irrespective of which party was at fault for the failure to comply.
The fact that the flight happened to be oversold did not transform cancellation of their
reservations into a denied boarding situation under the above-cited federal regulations.
       In Black, the plaintiff similarly argued that his claims were not barred by the
preemption clause because, under section 250.9, a passenger may voluntarily decline
denied boarding compensation and seek damages in a court of law. See 116 S.W.3d at
754 (citing 14 C.F.R. § 250.9(b)). However, construed in context, the court then rejected
the plaintiff‘s argument that he was eligible to file suit in a court of law to recover the
cost of his chartered flight because he and his wife were not denied boarding within the
purview of the federal regulations; they were offered seats on the flight, albeit in coach
despite their first-class reservations. Id. at 755. Because the plaintiff and his wife were

                                            10
ineligible for denied boarding compensation, ―they could not possibly decline this
compensation‖ and ―‗seek to recover damages in a court of law.‘‖ Id. (quoting 14 C.F.R.
§ 250.9(b)).
       Although the present case differs from Black with respect to the fact that
appellants were not offered seats on the flight, they likewise were not denied boarding
under the circumstances governed by the federal regulations.                   Because they were
ineligible for denied boarding compensation under these provisions, they ―could not
possibly‖ decline such compensation and seek consequential damages in a court of law.
Accordingly, appellants have not raised a genuine issue of material fact on their
contention that any exception prescribed by the regulations negated application of the
preemption doctrine.4

       In sum, appellants have failed to establish that the trial court erred by granting
summary judgment in favor of appellees on all of appellants‘ claims. We overrule both
of appellants‘ issues and affirm the trial court‘s judgment.




                                               /s/     Charles W. Seymore
                                                       Justice



Panel consists of Justices Anderson, Seymore, and McCally.




       4
          Because appellants were not denied boarding within the purview of the referenced federal
regulations, we need not decide whether the regulations create an exception to the preemption doctrine.

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