Reversed and Remanded and Opinion and Dissenting filed March 12, 2013.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-11-01110-CV

                               AVI RON, Appellant

                                        V.

                      AIRTRAN AIRWAYS, INC., Appellee


               On Appeal from the County Civil Court at Law No. 3
                             Harris County, Texas
                         Trial Court Cause No. 983669


                                OPINION


      In this breach-of-contract case, a passenger with confirmed reservations on
an overseas flight sued the airline after it told the passenger that the flight was
canceled. The trial court granted the airline’s traditional motion for summary
judgment, and the passenger appealed. Because the airline failed to conclusively
establish its right to judgment as a matter of law on the grounds expressly
presented in its summary-judgment motion, we reverse the judgment and remand
the case.

                       I. FACTUAL AND PROCEDURAL BACKGROUND
      Appellant Avi Ron purchased five airline tickets from AirTran Airways for
himself and his family to fly from Nassau International Airport in the Bahamas to
Orlando, Florida on January 3, 2010. It is undisputed that Ron and his family
arrived at the airport well in advance of the scheduled departure, but after waiting
for several hours, Ron and the other passengers were told that the flight was
canceled. AirTran and Ron give different versions of the events that transpired at
the airport. In accordance with the standard of review, we summarize the evidence
in the light most favorable to Ron, as the summary-judgment respondent.

      According to Ron’s affidavit testimony, passengers were told that they
would have to wait three days for flight service, and they should attempt to secure
private lodging because local hotels might be unable to accommodate everyone.
Ron states that he and several other passengers went to AirTran’s office at the
airport and spoke with Susan Bain. He describes their conversation as follows:

      [Ms. Bain] informed the passengers that, “Things are a mess . . . . I
      am trying to train new agents; it is a work in progress . . . . We were
      unprepared to add this route . . . . We do not have the personnel to
      properly serve this route. . . . We are still trying to get things on
      stream. . . . It is embarrassing that we do not have a plane. . . .”1
      Ms. Bain further explained to us that AIR TRAN was not required to
      fly passengers and that the AIR TRAN [sic] had no obligation to
      provide meals or lodging except for oversold flights. . . . Ms. Bain
      explained that “Air Tran never has to fly a scheduled flight even if it
      is not a safety or weather issue.” She stated that is a “standard
      contract” with the passengers in the airline industry and part of the
      “ticket conditions that all passengers agree to when they buy a ticket”.
      I, along with other passengers, asked Ms. Bain to provide the
      provisions that allow AIR TRAN to refuse to honor flight service.
      1
          Ellipses in original.

                                         2
      Ms. Bain explained that it was available at the AIR TRAN home
      office in Florida and that she did not have it available in the
      Bahamas. . . . The Contract of Carriage was not at the AIRTRAN
      customer service counter and it was not available for inspection at the
      airport.
      When Bain turned to reenter AirTran’s office, Ron “stepped behind her in
the office doorway” and a Bahamian agent “jumped up and pushed the door”
against Ron and other passengers, closing the door on Ron’s finger. Ron then
entered the office again, and the Bahamian agent became “very agitated, excited
and loud.” Ron states that he was not disorderly and did not direct profanity at any
AirTran agent; nevertheless, a few minutes after he left AirTran’s office, an airport
security officer approached Ron and “discussed the situation with [Ron] and other
passengers along with [AirTran’s] agents.” An AirTran agent told Ron that he and
his family would receive lodging, transportation, and meals at AirTran’s expense
and would be accommodated on the next available flight by AirTran or an alternate
airline, but the agent also cautioned Ron that the next scheduled flight was three
days later, and that no alternative flights were available for booking. Ron declined
the offer, leased a private aircraft, and he and his family flew home.

      Ron sued AirTran, alleging violations of the Texas Deceptive Trade
Practices–Consumer Protection Act and breach of contract, and AirTran moved for
summary judgment on three grounds. First, AirTran stated that all of Ron’s claims
are preempted by the Aircraft Deregulation Act. Second, AirTran asserted that its
Contract of Carriage “incorporates the DOT [Department of Transportation]
compensation requirements for denied boarding” and “provides that a passenger is
not entitled to compensation for involuntary denied boarding where the flight is
cancelled. The only compensation allowed is for a refund of the unused flight
segment.” Third, AirTran stated that under its Contract of Carriage, it had the right
to deny transportation to Ron because he was disorderly.

                                          3
       After amending his pleadings to eliminate claims other than his contract
claim, Ron filed a summary-judgment response. He produced evidence that when
he bought the plane tickets, AirTran sent him a confirmatory email in which
AirTran stated as follows:

       Condition of Contract: Air Transportation by AirTran Airways is
       subject to the terms of AirTran Airways’ Condition of Contract
       including Contract of Carriage . . . . The AirTran Airways [C]ontract
       of Carriage may be inspected at AirTran Airways customer service
       counter. For more information, direct inquiries to AirTran Airways,
       Inc. Customer Relations Department . . . .2
This statement was followed by a Florida address.

       Ron argued that under Title 14, section 253.4 of the Code of Federal
Regulations, an “air carrier shall make the full text of each term that it incorporates
by reference in a contract of carriage available for public inspection at each of its
airport and city ticket offices.” 14 C.F.R. § 253.4(b). If the carrier fails to do so,
then the “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 . . . .”
Id. § 253.4(a). Ron argued that because AirTran failed to provide the contract of
carriage for public inspection at the Nassau airport, it cannot avail itself of any
provisions that were incorporated by reference into the contract of carriage.3

       2
           AirTran produced a copy of the same email as part of its summary-judgment evidence.
       3
          Less than two days before the summary-judgment hearing, AirTran filed a reply in
which it attempted to raise additional grounds for summary judgment. In response to this
document, Ron filed a “counter-response” on the day before the summary-judgment hearing, to
which AirTran filed a “surreply” on the same day. The record does not indicate that the trial
court considered the summary-judgment grounds that were first raised in AirTran’s reply or
surreply, and we do not consider them on appeal. See Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 912 (Tex. 1997) (“A motion for summary judgment must itself expressly present
the grounds upon which it is made, and must stand or fall on these grounds alone.”); Reliance
Ins. Co. v. Hibdon, 333 S.W.3d 364, 378 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)
(“A movant is not entitled to use its reply to amend its motion for summary judgment or to raise
new and independent summary-judgment grounds.” (citing Garcia v. Garza, 311 S.W.3d 28, 36
                                                4
       The trial court granted Air Tran’s motion for summary judgment without
stating the grounds. In a single issue, Ron asks us to reverse the judgment because
AirTran Airways failed to comply with the requirement to make its Contract of
Carriage available at Nassau International Airport.

                              II. STANDARD OF REVIEW

       We review the trial court’s grant of a summary judgment de novo. Ferguson
v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam)
(citing Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.2d 184,
192 (Tex. 2007)). We consider all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if a reasonable
factfinder could, and disregarding contrary evidence unless a reasonable factfinder
could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). We
must affirm the summary judgment if any of the movant’s theories presented to the
trial court and preserved for appellate review are meritorious. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

       The movant for traditional summary judgment has the burden of showing
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant who moves for
traditional summary judgment must conclusively negate at least one essential
element of each of the plaintiff’s causes of action or conclusively establish each
element of an affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010). Evidence is conclusive only if reasonable people could not
differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.


(Tex. App.—San Antonio 2010, pet. denied))).

                                               5
2005). Once the defendant establishes its right to summary judgment as a matter
of law, the burden shifts to the plaintiff to present evidence raising a genuine issue
of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

      On appeal, the summary-judgment movant still bears the burden of showing
that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999). In considering grounds for reversal, we are limited to those grounds
expressly set forth in the summary-judgment motions, answers, or other responses,
and may not rely on the appellate briefs or summary-judgment evidence. D.M.
Diamond Corp. v. Dunbar Armored, Inc., 124 S.W.3d 655, 659–60 (Tex. App.—
Houston [14th Dist.] 2003, no pet.) (op. on reh’g) (citing TEX. R. CIV. P. 166a(c)
and McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)).

                                   III. ANALYSIS

      Ron’s defenses to each of the grounds on which AirTran moved for
summary judgment rely in large part on the meaning of federal statutes and
regulations. We review issues of statutory construction de novo. Marsh USA Inc.
v. Cook, 354 S.W.3d 764, 768 (Tex. 2011).

      Because two of the three grounds on which AirTran sought summary
judgment are based on terms of the Contract of Carriage and Ron raised the same
defense to each, we begin our analysis with these grounds.

A.    AirTran failed to establish its right to summary judgment based on
      language that was incorporated by reference into the contract of
      carriage.
      In its motion for summary judgment, AirTran asserted that its “Contract of
Carriage incorporates the DOT [Department of Transportation] compensation

                                          6
requirements for denied boarding.”      Despite this statement, AirTran failed to
identify any specific federal regulation that is incorporated into its Contract of
Carriage and that sets forth compensation requirements applicable here. Although
AirTran used the term “denied boarding,” which is found in Title 14, part 250 of
the Code of Federal Regulations, see 14 C.F.R. §§ 250.2 et seq., the regulations
codified in part 250 apply to “scheduled flight segments using an aircraft that has a
designed passenger capacity of 30 or more passenger seats, operating in
(1) interstate air transportation or (2) foreign air transportation with respect to
nonstop flight segments originating at a point within the United States.”         Id.
§ 250.2.   In its summary-judgment motion, AirTran did not assert that these
requirements were satisfied here. To the contrary, both AirTran and Ron produced
evidence that Ron had confirmed reservations for a nonstop flight originating from
a point outside the United States. Thus, it does not appear that AirTran was
referring to these regulations.

      AirTran also sought summary judgment based on contract terms that it did
not characterize as an incorporation of federal regulations. AirTran asserted that
“[t]he Contract of Carriage . . . provides that a passenger is not entitled to
compensation for involuntary denied boarding where the flight is cancelled. The
only compensation allowed is for a refund of the unused flight segment. Avi Ron’s
credit card was credited with this amount.”       AirTran additionally argued that
“Pursuant to AirTran Airways Contract of Carriage, they had the right to deny
transportation to Avi Ron as his conduct was disorderly, abusive or violent.” But
the confirmatory email that AirTran sent to Ron does not contain any of these
contract terms. It does provide, however, that “Air Transportation by AirTran
Airways is subject to the terms of AirTran Airways’ Condition of Contract
including Contract of Carriage . . . . The AirTran Airways [C]ontract of Carriage


                                         7
may be inspected at AirTran Airways customer service counter.”

       In his summary-judgment response, Ron pointed out that under federal law,
an air carrier must “make the full text of each term that it incorporates by reference
in a contract of carriage available for public inspection at each of its airport and
city ticket offices.”4 14 C.F.R. § 253.4(b). Moreover, “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 if notice of the term has not been
provided to that passenger in accordance with this part.” Id. § 253.4(a).5

       According to Ron’s summary-judgment evidence, he asked to see the terms
of the contract of carriage at AirTran’s office at the Nassau airport, and was told
that the contract was not available for inspection there. We must accept this
evidence as true and draw all reasonable inferences from it in Ron’s favor; thus, for
the purpose of summary judgment, we must give effect to section 253.4 by
disregarding those contractual terms on which AirTran relies that were
incorporated by reference in AirTran’s contract of carriage. See Fid. Fed. Sav. &
Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d
664 (1982) (“Federal regulations have no less pre-emptive effect than federal
statutes.”).

       In sum, none of the contract terms on which AirTran relies appear in the
confirmatory email; at best, they were incorporated by reference, and Ron
       4
         Although a similar issue was raised in an appeal to this court in a different case, briefing
waiver previously prevented us from reaching the merits of the argument. See, e.g., A.P. Keller,
Inc. v. Cont’l Airlines, Inc., No. 14-10-00917-CV, 2011 WL 5056241, at *5 (Tex. App.—
Houston [14th Dist.] Oct. 25, 2011, no pet.) (mem. op.).
       5
         The rule applies to “contracts of carriage for scheduled service in interstate and overseas
passenger air transportation.” Id. § 253.1. Unlike the regulations of title 14, part 250 discussed
above and cited in some of the cases on which AirTran relies, see, e.g., Delta Air Lines, Inc. v.
Black, 116 S.W.3d 745 (Tex. 2003) (op. on reh’g), the regulations of part 253 are not limited in
their application to flights originating in the United States.

                                                 8
produced summary-judgment evidence that AirTran failed to make the contract
available for inspection at the Nassau airport. We therefore conclude that AirTran
failed to establish that it is entitled to summary judgment on the grounds that its
contract incorporated terms that disclaimed or limited liability for compensation or
permitted it to deny service to Ron.

      Because some courts have expressed concern that “[a]irlines might hesitate
to refuse passage in cases of potential danger for fear of state[-]law contract actions
claiming refusal to transport,”6 we hasten to point out that under federal law, an air
carrier is permitted to “refuse to transport a passenger or property the carrier
decides is, or might be, inimical to safety.” 49 U.S.C. § 44902(b) (2012). See also
Smith v. Conair, Inc., 134 F.3d 254, 258 (4th Cir. 1998) (holding that the contract
claims of a passenger who was denied service for failing to produce identification
were preempted because the carrier relied on its right, under federal law, to deny
service and on its duty to follow a security directive from the Federal Aviation
Administration). AirTran, however, did not move for summary judgment on the
ground that its failure to transport Ron in accordance with the terms of the
confirmatory email was an exercise of its rights or duties under federal law.
Instead, AirTran sought summary judgment on the ground that it was contractually
permitted to refuse to transport Ron. No such contractual provision is mentioned
in the confirmatory email to Ron, and we must accept as true Ron’s evidence that
the contract of carriage was not available for inspection at the Nassau airport.
Because AirTran was required by a federal regulation to comply with Ron’s
request to inspect the contract at the Nassau airport, the same regulation bars
AirTran from “claim[ing] the benefit as against the passenger” of any contract
terms incorporated by reference. See 14 C.F.R. 253.4(a), (b). Thus, the judgment

      6
          See Smith v. Conair, Inc., 134 F.3d 254, 259 (4th Cir. 1998).

                                                 9
cannot be affirmed based on any contractual provision relied upon by AirTran in
its summary-judgment motion.

B.     AirTran failed to establish that Ron’s claims are preempted.
       AirTran additionally moved for summary judgment on the ground that Ron’s
breach-of-contract claim is preempted by the Airline Deregulation Act of 1978
(“the ADA”), which provides that “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.” 49 U.S.C. § 41713
(2012). Among other things, the ADA is intended to place “maximum reliance on
competitive market forces” and to promote “the availability of a variety of
adequate, economic, efficient, and low-priced services without unreasonable
discrimination or unfair or deceptive practices.” Id. § 40101(a)(6), (4). Although
many courts have struggled with the determination of whether a particular breach-
of-contract claim is preempted, we are bound by the precedent established by the
United States Supreme Court and the Supreme Court of Texas in reviewing such
claims of preemption. We therefore begin by reviewing the primary cases from the
federal and state high courts addressing preemption of contract claims under the
ADA.

       1.     American Airlines, Inc. v. Wolens

       In American Airlines, Inc. v. Wolens, the United States Supreme Court
described the test to be used in determining whether a state breach-of-contract
claim is preempted by the ADA. 513 U.S. 219, 115 S. Ct. 817, 130 L. Ed. 2d 715
(1995).     The case began in the Illinois state courts as separate class-action
proceedings in which the plaintiffs asserted that an airline breached its contracts
with them by imposing retroactive changes to the airline’s frequent-flyer program.

                                          10
Id., 513 U.S. at 224–25, 115 S. Ct. at 822.7 The Illinois Supreme Court held that
the contract claims were not preempted because the airline’s frequent-flyer
programs were “peripheral” rather than “essential” to an airline’s regulation. Id.,
513 U.S. at 226, 115 S. Ct. at 822. Although the United States Supreme Court
agreed that the breach-of-contract claims were not preempted, the Court rejected
the argument that the test for preemption requires a court to determine whether the
claim involves matters “essential” to airline operations. Id., 513 U.S. at 226, 115
S. Ct. at 823 (explaining that the Court’s precedent “does not countenance” the
state court’s approach of separating “matters ‘essential’ from matters unessential to
airline operations.” (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374,
112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992))).

       The test for preemption, the Court explained, begins with a determination of
whether the airline’s challenged conduct—there, the retroactive devaluing of
credits in a frequent-flyer program—“relates” to the airline’s “rates, routes, or
services.” Id. The Court held that the plaintiffs’ claims related not only to “rates”
but also to “services,” which include “access to flights and class-of-service
upgrades.” Id.

       This was not, however, the end of the preemption test. The Court further
clarified that even if the matter at issue “relates” to the airline’s “rates, routes, or
services,” the claim is not is preempted unless its recognition would amount to the
State’s enactment or enforcement of a law, rule, regulation, standard, or other
provision having the force and effect of law. Id., 513 U.S. at 228–29, 115 S. Ct. at
824. As the Court explained,

       7
          The plaintiffs also alleged that the airline’s conduct violated the Illinois Consumer
Fraud and Deceptive Business Practices Act, and the Court held that those claims were
preempted. Id., 513 U.S. at 225–26, 115 S. Ct. at 822–23. Here, however, Ron withdrew his
allegations that AirTran had violated similar state consumer-protection statutes.

                                              11
       The conclusion that the ADA permits state-law-based court
       adjudication of routine breach-of-contract claims also makes sense of
       Congress’ retention of the FAA’s saving clause, § 1106, 49
       U.S.C.App. § 1506 (preserving “the remedies now existing at
       common law or by statute”).[8] The ADA’s preemption clause,
       § 1305(a)(1), read together with the FAA’s saving clause, stops States
       from imposing their own substantive standards with respect to rates,
       routes, or services, but not from affording relief to a party who claims
       and proves that an airline dishonored a term the airline itself
       stipulated. This distinction between what the State dictates and what
       the airline itself undertakes confines courts, in breach-of-contract
       actions, to the parties’ bargain, with no enlargement or enhancement
       based on state laws or policies external to the agreement.
Id., 513 U.S. at 232–33, 115 S. Ct. at 826. See also Delta Air Lines, Inc. v. Black,
116 S.W.3d 745, 753–54 (2003) (op. on reh’g) (“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.”) (citing Wolens, 513 U.S. at
228–29, 115 S. Ct. at 824); Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 282
(Tex. 1996) (“Wolens’ emphasis on the voluntariness of contractual undertakings is
important, not because states have no role in enforcing contracts—they do—but
because contract law does not effectuate purposes that could have a prohibited
regulatory effect on airlines.”). Because the plaintiffs did not seek to enlarge or
enhance the parties’ bargain based on the state’s laws or policies, but instead
sought only monetary damages for breach of contract, the Court held that the
contract claims were not preempted. Wolens, 513 U.S. at 225, 232–33, 115 S. Ct.
at 822, 826.

       2.       Delta Air Lines, Inc. v. Black

       In Delta Air Lines, Inc. v. Black, the Supreme Court of Texas applied the

       8
           The FAA is the Federal Aviation Act of 1958. See id., 513 U.S. at 222, 115 S. Ct. at
821.

                                               12
preemption test set forth in Wolens to a breach-of-contract claim. The suit arose
after Robert Black purchased two roundtrip tickets on a Delta flight to Las Vegas,
and although his invoice showed that Black had reserved first-class seats for both
passengers for the entire trip, Delta had assigned Black’s wife a first-class seat
only for the return flight. Black, 116 S.W.3d at 747. Delta offered the Blacks
several options, including seating Black’s wife in the coach section of the aircraft
during the scheduled flight or seating the couple in the first-class section of a flight
later that day. Id. The Blacks instead chartered a private jet to and from Las
Vegas and paid the aircrew’s expenses in Las Vegas for the length of their stay.
Id. at 748.

      Delta moved for summary judgment on the grounds, inter alia, that Black’s
contract claims were preempted. Id. at 752. The trial court agreed, but the Tenth
Court of Appeals reversed, holding that “federal airline regulations allow
passengers whose airline reservations are not honored due to overbooking to seek
recovery for damages ‘in a court of law or in some other manner.’” Black v. Delta
Airlines, Inc., 160 S.W.3d 68, 76–77 (Tex. App.—Waco 2002, pet. granted)
(quoting 14 C.F.R. § 250.9 (1984)), rev’d in part, 116 S.W.3d 745 (Tex. 2003).

      The Supreme Court of Texas reversed. In analyzing the first part of the
preemption test, the court quickly determined that Black’s contract claim for denial
of first-class seating was “related” to the airline’s services, a matter not expressly
addressed in the intermediate court’s decision. See Black, 116 S.W.3d at 753
(citing Wolens, 513 U.S. at 226, 115 S. Ct. at 823, in which the term “services”
was used to include “access to flights and class-of-service upgrades”). The court’s
preemption analysis thereafter focused primarily on the question of whether
Black’s claim was based on the terms of the parties’ contract or would instead
constitute the enactment or enhancement of a state law or policy.

                                          13
        The court emphasized that the contract between Black and the airline
incorporated federal regulations governing compensation to passengers with
confirmed reservations who nevertheless are denied boarding because the flight is
overbooked and an insufficient number of volunteers have agreed to relinquish
their seats.       Id. at 754.         Federal regulations—and thus, Black’s contract
incorporating those regulations—established the circumstances under which
passengers who are denied boarding are entitled to compensation, and the way in
which such compensation is calculated. Id.9 The regulations (and the contract
incorporating the regulations) further provide that a passenger who is eligible for
such compensation has the option to decline payment from the airline and seek
recovery in a court of law. Id. at 755 (citing 14 C.F.R. § 250.9). But a passenger
who is offered seating in a different section of the aircraft is not considered to have
been denied boarding, and thus, is not entitled to compensation from the airline.
Id. Such a passenger therefore cannot “decline” compensation from the airline and
seek recovery in court. Id. Because the airline offered to seat Black’s wife in a
different section of the aircraft at no extra charge and offered the couple seating on
alternative flights arriving in Las Vegas the same day, the Blacks were not “denied
boarding” as that term was used in the regulations and incorporated in the contract.
See id. Black accordingly did not have the option of “declining” compensation and
asserting a contract claim in court, because “[t]he passenger option of declining
payment from the airline and instead seeking recovery in a court of law is reserved
for those passengers who are involuntarily denied boarding and thus eligible for


        9
          If the passenger is given a different seat in the aircraft at no extra charge or if the airline
arranges alternate transportation that delays the passenger in arriving at his destination or first
stopover by no more than an hour, the passenger is entitled to no compensation. 14 C.F.R.
§ 250.9. An arrival delay of more than one but less than two hours entitles the passenger to
200% of the one-way fare (but no more than $650), and an arrival delay of more than two hours
entitles the passenger to receive 400% of the one-way fare (but no more than $1300). Id.

                                                   14
denied boarding compensation.” Id.

      The court accordingly concluded that Black’s breach-of-contract claim was
preempted. The court explained that “[t]he regulations promulgated under the
ADA, which are incorporated as part of the contract, provide the procedure and
remedy in the event a passenger is denied boarding but offered specified
accommodations, and therefore preclude the additional remedies Black has
pursued in state court.” Id. (citing 14 C.F.R. §§ 250.1–.9). Although the ADA
permits “suits based on the terms of the parties’ bargain ‘with no enlargement or
enhancement based on state laws or policies external to the agreement,’” id. at 750
(quoting Wolens, 513 U.S. at 233, 115 S. Ct. at 826), Black was attempting “to
modify the contract terms to allow him and his wife to forego the regulatory
remedies and instead sue in court.” Id.

      3.     AirTran’s Preemption Argument

      Although AirTran cited both Wolens and Black in its summary-judgment
motion, the motion contains little argument concerning preemption of Ron’s
breach-of-contract claim. AirTran asserted that all of Ron’s claims are preempted
by federal law, and paraphrased the provision that “a State . . . 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 . . . .” 49 U.S.C. § 41713. After discussing some of the facts of
Black, AirTran made one of the contractual arguments we have discussed. This
was followed by a single sentence in which AirTran addressed the possible
application of Black to this case: “Ron’s suit is seeking to do that which the court
said in Black that a passenger could not due [sic], modify the terms of the contract
of carriage by resorting to external laws and remedies of the State.”

      This case, however, is readily distinguishable from Black.          In Black,
                                          15
procedures and remedies applicable to the Black’s claims were set forth in federal
regulations and incorporated by reference into the airline’s contract with the
passenger.      In contrast, AirTran’s summary-judgment motion contains no
identification of any specific federal regulation that is incorporated by reference in
the contract and that prescribes a procedure or remedy applicable to Ron’s contract
claim.10 Moreover, there was no suggestion that the airline in Black was prohibited
by federal regulations from relying on any contractual provisions. Here, however,
AirTran informed Ron in its confirmatory email that unspecified terms were
incorporated by reference into its contract, but when Ron asked to see them at the
Nassau airport, he was told they were not available. Thus, unlike the airline in
Black, AirTran is prevented by a federal regulation from relying on an incorporated
contract term for which it failed to supply the required notice. See 14 C.F.R.
§ 253.4. The result is that, unlike the airline in Black, AirTran has identified
neither a federal regulation nor a contractual provision on which it can rely to limit
Ron’s available remedies for breach of contract.

       A breach-of-contract claim that relates to an airline’s services is not
preempted simply because the remedy of a common-law claim for monetary
damages is not specifically described in the contract or in a federal regulation.
This can be seen in Wolens itself, in which the Court held that the claims of the
plaintiffs—who did not ask the Court to force the airline to adhere to the terms of
the parties’ bargain, but instead sought monetary damages for the contract’s
breach—were not preempted. See Wolens, 513 U.S. at 225, 115 S. Ct. at 822
(“Plaintiffs currently seek only monetary relief.”). In doing so, the Court quoted

       10
           As previously mentioned, the federal regulations incorporated into the contract in
Black concerned compensation to passengers who were for denied boarding from an overbooked
flight, and those regulations apply to flights originating at a point in the United States. See 14
C.F.R. § 250.2. Ron’s flight was not alleged to have been overbooked, and it did not originate in
the United States.

                                               16
with approval its plurality opinion in Cipollone v. Liggett Group, Inc., 505 U.S.
504, 526, 112 S. Ct. 2608, 2612, 120 L. Ed. 2d 407 (1992): “‘[A] common-law
remedy for a contractual commitment voluntarily undertaken should not be
regarded as a “requirement . . . imposed under State law . . . . ”’” Wolens, 513 U.S.
at 229, 115 S. Ct. at 824 (alteration in original). The Court further stated that the
course it adopted “bears the approval of the statute’s experienced administrator, the
DOT,” id., 513 U.S. at 234, 115 S. Ct. at 827, and pointed out that “the DOT’s
regulations contemplate that . . . ‘ticket contracts’ ordinarily would be enforceable
under ‘the contract law of the States.’” Id. at 230, 115 S. Ct. at 825 (quoting 47
Fed. Reg. 52129 (1982)). The source quoted by the Court is the announcement in
the Federal Register of the adoption by the DOT’s predecessor, the Civil
Aeronautics Board, of the federal regulations concerning the obligation of carriers
to provide passengers with the text of terms that are incorporated by reference in
the contract of carriage—the very regulations on which Ron relies.                    As the
following excerpts illustrate, the same source also clarified that when an airline
fails to comply with federal regulations requiring the text of the contract’s
incorporated terms to be “immediately available to the public wherever its tickets
are sold”11 such that the airline is barred from relying on the incorporated terms,
then a state-law claim for breach of contract is not preempted:12

       [One commenter has] suggested that the preemption be more specific
       so as not to preempt State contract remedies and “plain-language”
       statutes. The Board agrees with this suggestion with respect to

       11
         Notice of Terms of Contract of Carriage, 47 Fed. Reg. 52128-02, 52132 (Nov. 19,
1982) (codified at 14 C.F.R. pt. 253).
       12
          See Bragdon v. Abbott, 524 U.S. 624, 642, 118 S. Ct. 2196, 2207, 141 L. Ed. 2d 540
(1998) (“[T]he well-reasoned views of the agencies implementing a statute ‘constitute a body of
experience and informed judgment to which courts and litigants may properly resort for
guidance.’” (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139–140, 65 S. Ct. 161, 164, 89 L.
Ed. 124 (1944))).

                                              17
      contract remedies, and has clarified the fundamental provision in
      § 253.4 by stating that the enforcement aspects of the rule are in
      addition to other remedies at law.13
                                            ...
      [T]he Board has modified the provisions of the rule to make clear that
      the “penalty” of an airline not being able to enforce a term only
      applies with respect to a passenger who has not received the required
      notice.14
                                      ...

      Without the enforcement mechanism of voiding the contract term, the
      penalty for violating the rule would be limited to a civil penalty action
      against the airline.      The passenger, however, could still be
      disadvantaged in such a case if the term were still considered valid.
      Civil penalties will in most cases be far less effective, and far more
      costly to administer, than simply voiding the term and allowing the
      passenger to pursue available remedies.15
                                            ...
      [T]he Board is requiring a two-step notice to consumers: Each ticket
      must have a notice, which can and presumably will be standardized,
      that the contract may incorporate terms in several enumerated
      areas . . . and each carrier must ensure that concise and correct
      information concerning these terms is immediately available to the
      public wherever its tickets are sold.16
                                            ...
      [One commenter has] questioned whether there would be any penalty
      outside of contract law for carriers refusing to comply with the rule.
      The Board has civil penalty authority under section 901 of the Act,
      can issue cease and desist orders, and can seek injunctive relief from a
      U.S. District Court if needed. However, we would expect that the
      primary enforcement mechanism would be contract law at the local
      13
         Notice of Terms of Contract of Carriage, 47 Fed. Reg. 52128-02, 52130 (Nov. 19,
1982) (codified at 14 C.F.R. pt. 253).
      14
           Id.
      15
           Id. at 52131–32.
      16
           Id. at 52132.

                                            18
       level.17
       In sum, we conclude that AirTran failed to establish in its motion for
summary judgment that Ron’s breach-of-contract claim was preempted. Although
AirTran makes a number of arguments on appeal that were not raised in its
summary-judgment motion,18 a summary judgment must stand or fall on the
grounds expressly presented in the motion. McConnell, 858 S.W.2d at 341. We
therefore do not consider the merits of these arguments. We also cannot make the
airline’s summary-judgment arguments for it.

       Ours is not the first court to arrive at a result such as this. See Price v. Delta
Airlines, Inc., 5 F. Supp. 2d 226, 232 (D. Vt. 1998) (“[W]hether or not notice was
provided to the Prices is a material fact in dispute, precluding summary
judgment . . . . If notice complying with 14 C.F.R. § 253.4 was not provided, the
Prices will not be bound by the claim restriction term.”). Thus, for example, we
cannot affirm summary judgment based on 14 C.F.R. § 253.5—a provision that is
cited by the dissent, but on which AirTran has never relied, and compliance with
which AirTran neither alleged nor proved. 19 In a related argument, the dissent

       17
            Id. at 52133 (emphasis added).
       18
           Among other things, AirTran argues that (1) Ron failed to prove the existence “of a
contract imposing upon AirTran the obligations he claims, or granting him the remedy he
invokes”; (2) Ron failed to prove that AirTran breached its contract; (3) Ron elected to receive a
refund of his ticket price; (4) Ron created his own loss by rejecting AirTran’s proffered
alternative arrangements; and (5) Ron’s expenses for chartering a flight are neither direct nor
consequential damages. Nothing prevents AirTran from raising these issues in any subsequent
motion for summary judgment.
       19
            This section provides in relevant part as follows:
       Except as provided in § 253.8, each air carrier shall include on or with a ticket, or
       other written instrument given to a passenger, that embodies the contract of
       carriage and incorporates terms by reference in that contract, a conspicuous notice
       that:
       (a)       Any terms incorporated by reference are part of the contract, passengers
                 may inspect the full text of each term incorporated by reference at the
                 carrier’s airport or city ticket offices, and passengers have the right, upon
                                                  19
asserts that this court should follow Casas v. American Airlines, Inc., 304 F.3d 517
(5th Cir. 2002) and contends that under that case, an airline may rely on terms
incorporated by reference without showing that it complied with section 253.4(a)
or 253.4(b), the sections actually at issue in this case. In Casas, however, the court
specifically pointed out that the incorporated provision at issue was included in
notices posted on signs at the airline’s ticket counters. Id. at 525. Thus, in Casas,
the airline did comply with section 253.4(b), whereas here, the evidence is that the
airline did not comply.

       Although the dissent also would affirm on the alternative ground that the
summary-judgment evidence fails to address whether AirTran has a ticket office in
the Bahamas, this would be inconsistent with the applicable standard of review. It
is undisputed that AirTran stated in the confirmation notice that the text of the
contract was available for inspection at its “customer service counter,” and AirTran
produced evidence that this was its “standard contract language”—even though
AirTran states in its contract of carriage that the text is available at AirTran’s
“airport and city ticket offices.” Although the confirmatory email fails to provide
the notice required by federal regulations, we must draw all reasonable inferences
in favor of the summary-judgment respondent, and conclude that, as a practical
matter, the customer-service counters referenced in the email are ticket offices.


              request at any location where the carrier’s tickets are sold within the
              United States, to receive free of charge by mail or other delivery service
              the full text of each such incorporated term;
       (b)    The incorporated terms may include and passengers may obtain from any
              location where the carrier’s tickets are sold within the United States
              further information . . .
14 C.F.R. § 253.5(a). The confirmatory email provided to Ron informed him only that the
contract “may be inspected at AirTran Airways customer service counter.” The statement was
not limited to locations where tickets were sold, and contained no mention of the availability of
of a copy of the contract by mail or other delivery service.

                                               20
This is consistent with affidavits provided by AirTran. Susan Bain, for example,
attested that she went to the “AirTran manager’s office” and directed four agents to
take copies of the flight manifest “to the ticket counter” and instructed them that
the passengers would be given “customer care kits.” Bain stated that “[t]hree
agents remained in the office with me and we began filling out the documentation
for the care kits,” and the fourth obtained the “transportation information that we
needed to transport the passengers from the airport to the hotel.” AirTran also
produced a statement by one of the agents who remained in AirTran’s office with
Bain. Tracey Lynes identified herself as a “customer service agent” and claimed
that she was “on duty at [her] work place (Air Tran Office)” at the time of these
events. Together, these statements support the inference that the AirTran office
was under the charge of an AirTran employee and was both a “customer service”
office and a ticket office.

      We therefore sustain the sole issue presented for our review.

                                 IV. CONCLUSION

      Because AirTran did not meet its burden to establish conclusively its
entitlement to judgment on the grounds expressly raised in its summary-judgment
motion, we reverse and remand the case for further proceedings consistent with
this opinion.




                                        /s/    Tracy Christopher
                                               Justice


Panel consists of Justices Frost, Christopher, and Jamison (Frost, J., dissenting).

                                          21
