                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-118-CV


GLENN RHOADES D/B/A VANGO                                           APPELLANT
AUTO GROUP

                                            V.

SPENCER PROSSER                                                       APPELLEE

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            FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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I. Introduction

      Appearing pro se, appellant Glenn Rhoades d/b/a Vango Auto Group appeals

a summary judgment granted in favor of appellee Spencer Prosser. In one point,

Rhoades contends that there is no evidence to support the judgment. Specifically,

Rhoades asserts that the deemed admissions that Prosser offered in support of his

motion are critical to support necessary elements of Prosser’s claims but that the


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           See Tex. R. App. P. 47.4.
deemed admissions are not verified and, therefore, not competent summary

judgment evidence. W e affirm.

II. Background and Procedural Facts

      In May 2006, Prosser purchased a motor vehicle from Rhoades. At the time

of the sale, information that Rhoades provided Prosser stated that the vehicle’s

mileage was 77,173. After making extensive repairs, Prosser discovered that the

vehicle’s actual mileage exceeded 247,986 at the time of sale.        Prosser sued

Rhoades for fraud, revocation of acceptance or, alternatively, rescission of the

purchase contract, declaratory relief, violation of the Motor Vehicle Information and

Cost Savings Act, 49 U.S.C.A. § 32710 (W est 2007), and violation of the Magnuson-

Moss W arranty Act, 15 U.S.C.A. §§ 2301–12 (W est 2009). Prosser also sought

actual and exemplary damages, attorney’s fees, interest, and costs.

      During the course of discovery, Prosser served requests for admissions on

Rhoades. Rhoades failed to respond. Prosser then filed a motion for summary

judgment based in part upon Rhoades’s deemed admissions, a copy of which was

submitted as an attachment to an affidavit of Prosser’s attorney, Sharon K.

Campbell, and filed with the motion. Rhoades did not file a response. After notice

and a hearing, the trial court found that Prosser effectively revoked acceptance of

the purchase of the vehicle and granted final summary judgment awarding damages

and attorney’s fees on Prosser’s revocation of acceptance and Motor Vehicle

Information and Cost Savings Act causes of action. This appeal followed.


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III.   Standard of Review

       W e review a summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W .3d 844, 848 (Tex. 2009). W e consider the

evidence presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. Id. W e indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.

v. Parker, 249 S.W .3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary

judgment on a cause of action if it conclusively proves all essential elements of the

claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W .2d 59, 60

(Tex. 1986).

IV.    Deemed Admissions as Summary Judgment Proof

       Rhoades complains on appeal that there is no evidence to support the

judgment because the deemed admissions are unverified and not competent

summary judgment evidence and there is no other evidence supporting certain facts

that Rhoades identifies as “necessary elements of [Prosser’s] case.”

       Deemed admissions are competent summary judgment evidence.

Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W .3d 492, 502 (Tex. App.—San

Antonio 2004, pet. denied.). Unanswered requests for admissions are automatically

deemed admitted, unless the court on motion permits their withdrawal or

amendment. See Tex. R. Civ. P. 198.1–.3; Marshall v. Vise, 767 S.W .2d 699, 700


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(Tex. 1989). If a response to a request for admissions is not timely served, the

request is considered admitted without the necessity of a court order. Tex. R. Civ.

P. 198.2. An admission once admitted, deemed or otherwise, is a judicial admission.

Marshall, 767 S.W .2d at 700.

      An affidavit is, by statute, “a statement in writing of a fact or facts signed by

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.” Tex. Gov’t Code Ann.

§ 312.011(1) (Vernon 2005); see Ford Motor Co. v. Leggatt, 904 S.W .2d 643,

645–46 (Tex. 1995) (orig. proceeding). To constitute summary judgment proof, an

affidavit or papers attached to an affidavit must meet the following requirements set

forth in the rules of civil procedure:

      Form of Affidavits; Further Testimony. Supporting and opposing
      affidavits shall be made on personal knowledge, shall set forth such
      facts as would be admissible in evidence, and shall show affirmatively
      that the affiant is competent to testify to the matters stated therein.
      Sworn or certified copies of all papers or parts thereof referred to in an
      affidavit shall be attached thereto or served therewith. The court may
      permit affidavits to be supplemented or opposed by depositions or by
      further affidavits. Defects in the form of affidavits or attachments will
      not be grounds for reversal unless specifically pointed out by objection
      by an opposing party with opportunity, but refusal, to amend.

Tex. R. Civ. P. 166a(f) (emphasis added); see Medford v. Medford, 68 S.W .3d 242,

246–47 (Tex. App.—Fort W orth 2002, no pet.).

      Copies of documents that are attached to a properly prepared affidavit that

indicates the copies are “true and correct” are, therefore, sworn copies that



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constitute summary judgment proof. Republic Nat’l Leasing Corp. v. Schindler, 717

S.W .2d 606, 607 (Tex. 1986); Medford, 68 S.W .3d at 246–47. But unauthenticated

or unsworn documents or documents not supported by any affidavit are not entitled

to consideration as summary judgment evidence. Medford, 68 S.W .3d at 247; Llopa,

Inc. v. Nagel, 956 S.W .2d 82, 87 (Tex. App.—San Antonio 1997, pet. denied).

      Rhoades argues that the copy of the requests for admissions submitted by

Prosser is not competent summary judgment evidence because it is not verified in

the motion or by affidavit. The copy was, however, attached to Campbell’s affidavit

and among the papers submitted to the trial court as summary judgment evidence

before the hearing. Additionally, Rhoades does not contend that Campbell’s affidavit

is defective or that the copy of the requests for admissions attached thereto would,

if verified and considered together with other record evidence, be legally insufficient

to support the judgment.

      Campbell’s affidavit recites that Campbell personally appeared before a

notary, was “duly sworn,” and “deposed and said” what followed. And the affidavit

is certified to by a notary under his seal of office. Accordingly, Campbell’s affidavit

meets the statutory definition of an affidavit.        See Tex. Gov’t Code Ann.

§ 312.011(1).

      In the relevant portion of Campbell’s affidavit, which also proved up her

damages and attorney’s fees, she states that her services to Prosser

“include . . . preparing and sending Plaintiff’s Request for Disclosure, First Set of


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Interrogatories, Request for Admissions, [and] Request for Production of

Documents.“ [Emphasis added.] Campbell also states that “true and correct copies

of the Discovery Requests I prepared and sent to the Defendant via his attorney of

record” are attached to the affidavit. 2   The contention in Rhoades’s brief that

Campbell’s affidavit “does not identify or verify the alleged Request for Admissions”

is, thus, contradicted by the record evidence.

      In her affidavit, Campbell swears that she “has personal knowledge” of the

matters stated therein relating to her preparation of the “Request for Admissions.”

See Leggatt, 904 S.W .2d at 646 (citing Humphreys v. Caldwell, 888 S.W .2d 469,

470 (Tex. 1994) (affidavit lacking attestation that statements made were

unequivocally based on personal knowledge was legally insufficient)). Campbell’s

affidavit is, therefore, competent summary judgment evidence. See Tex. R. Civ. P.

166a(f). Based on the record before us, we hold that the copy of the “Request for

Admissions” attached to Campbell’s affidavit is sworn and is proper summary

judgment evidence in support of Prosser’s motion. See id.; Republic Nat’l Leasing

Corp., 717 S.W .2d at 607.




      2
         Campbell also attached a copy, which she averred to be true and correct,
of the green card indicating receipt of the discovery requests, including the requests
for admission.

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      W ithout briefing the elements of Prosser’s causes of action, 3 Rhoades

contends on appeal that there is no evidence supporting the following facts that he

identifies as “necessary elements of [Prosser’s] case”: the identity of the seller of the

vehicle, knowledge of the vehicle’s mileage as reflected on the odometer statement,

evidence that Rhoades was responsible for the odometer representation, and the

vehicle’s mileage as listed on the title documents.        But, contrary to Rhoades’

contention, the deemed admissions and other summary judgment evidence establish

each of these “elements.” First, deemed admission number 4 proves up a true and

correct copy of part of the title document by which Rhoades obtained title to the

vehicle when he purchased it on May 2, 2006. In the document, Glenn Rhoades or

his agent certified that the vehicle’s mileage was 247,986 on that date. Second,

deemed admission number 6 proves up a true and correct copy of an Application for

Texas Certificate of Title. The Application was also signed by Glenn Rhoades and

dated May 2, 2006, but in it Rhoades certified that the same vehicle’s mileage was

77,173 on that date, not 247,986. Third, Prosser’s affidavit proves up a true and

correct copy of the “Buyer’s Order” contract dated May 16, 2006. The Buyer’s Order




      3
        The trial court awarded $20,878.74 in actual damages on Prosser’s claim
of revocation of acceptance and $11,557.48 in statutory penalties on Prosser’s claim
that Rhoades violated the Motor Vehicle Information and Cost Savings Act, 49
U.S.C.A. §§ 32701–11 (W est 2007).

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was signed by “GR” and stated that the vehicle’s mileage was 77,173 when Vango

Auto Group sold Prosser the vehicle on May 16, 2006. 4

      Based on the foregoing summary judgment evidence, the record supports

each “element” that Rhoades contends is unsupported. Additionally, Prosser was

required to establish the following to support his claim of revocation of acceptance:

(1) initial acceptance without discovery of the non-conforming item if acceptance was

induced by the seller’s assurance (2) of a non-conforming item (3) when such

non-conformity substantially impairs the value to the buyer (4) with revocation

occurring within a reasonable time, and in any event, before a substantial change

in the condition of the goods occurs unless the change is caused by a defect of the

goods. Tex. Bus. & Com. Code Ann. § 2.608 (Vernon 2009); see also Toshiba

Mach. Co., Am. v. SPM Flow Control, Inc., 180 S.W .3d 761, 772 (Tex. App.—Fort

W orth 2005, pet. granted, judgm’t vacated w.r.m.) (op. on reh’g); Neily v. Aaron, 724

S.W .2d 908, 913–14 (Tex. App.—Fort W orth 1987, no writ). However, Rhoades

failed to identify or cite legal authority regarding the elements of Prosser’s revocation

claim. Accordingly, to the extent that Rhoades’ point of error may be construed as

challenging the sufficiency of the evidence in support of revocation, Rhoades failed




      4
          Although the trial court awarded damages based on the finding that
Prosser “effectively revoked acceptance of the purchase” of the vehicle, Rhoades
fails to cite any authority regarding the elements of a revocation claim or identify
which of those elements, if any, were not supported by Prosser’s summary judgment
evidence.

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to adequately brief, and therefore waived, any alleged error by the trial court. 5 See

Tex. R. App. P. 38.1(e), (h); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881

S.W .2d 279, 284–85 (Tex. 1994) (discussing the “long-standing rule” that an

appellate point may be waived due to inadequate briefing). 6        Accordingly, we

overrule Rhoades’ point.

      Having overruled Rhoades’ sole point, we affirm the trial court’s judgment.



                                              ANNE GARDNER
                                              JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: May 20, 2010




      5
       Rhoades likewise failed to identify or cite legal authority regarding
Prosser’s statutory violation. See 49 U.S.C.A. §§ 32701–11.
      6
         Moreover, summary judgment evidence supports revocation. Prosser’s
affidavit and attached Buyer’s Order establish that he initially accepted the vehicle
after being induced by Rhoades’ representations that the vehicle was in good
condition and that the vehicle’s mileage was 77,173; Prosser’s affidavit, the deemed
admissions, and attached title documents establish that, when Prosser accepted the
vehicle, its actual milage was in excess of 247,986; and Prosser’s affidavit
establishes that the vehicle was non-conforming because the discrepancy in mileage
substantially impaired the vehicle’s value as shown by the need for more than
$5,778.74 in repairs and revocation occurred before a substantial change in the
vehicle’s condition and within a reasonable time based on Prosser’s filing suit only
after becoming aware, during the course of repairs, that the vehicle’s service records
showed its mileage to be substantially more than Rhoades had represented.

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