                      COURT OF APPEALS
                      SECOND DISTRICT OF TEXAS
                           FORT WORTH


                            NO. 2-07-064-CV


BILLY DON GIFFORD                                              APPELLANT

                                    V.

DON DAVIS AUTO, INC. D/B/A                                     APPELLEES
DON DAVIS TOYOTA AND
TOYOTA MOTOR CREDIT CORPORATION

                                ------------

      FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

                                ------------

                               OPINION

                                ------------

     This appeal arises out of a used car purchase. The trial court granted

summary judgment against the purchaser. We affirm in part and reverse and

remand in part.

                               Background
      On February 21, 2004, appellant Billy Don Gifford purchased a 2001

Toyota Tacoma from appellee Don Davis Auto, Inc. d/b/a Don Davis Toyota

(“Don Davis”). Don Davis used a form retail installment sales contract for this

transaction. Appellee Toyota Motor Credit Corporation (“Toyota Motor Credit”)

financed Gifford’s purchase through a separate installment contract.

      The contract between Gifford and Don Davis included a charge for

$1,265.00 for an extended warranty to be provided by “Toyota C.”             The

contract also contained a charge for $47.44 for a “dealer’s inventory tax paid

to seller.” Finally, the contract included a charge for $1,766.42 for credit life

and credit disability insurance. At some point after Gifford took possession of

the car, he became unable to pay.       Toyota Motor Credit began collection

efforts, which culminated in repossession.

      Gifford sued Don Davis and Toyota Motor Credit asserting claims against

Don Davis for fraud, violations of the Texas Finance Code and Deceptive Trade

Practices Act (“DTPA”), and breach of fiduciary duty and claims against Toyota

Motor Credit for unfair debt collection practices, wrongful repossession,

conversion, and slander of credit. Appellees filed a joint motion for summary

judgment on both traditional and no-evidence grounds. Without specifying the

basis for its ruling, the trial court granted summary judgment for Appellees.

This appeal ensued.

                                       2
                               Standard of Review

      We review a summary judgment de novo.1 The movant for a traditional

summary judgment has the burden of showing that there is no genuine issue of

material fact and that the movant is entitled to summary judgment as a matter

of law.2 A defendant who conclusively negates at least one essential element

of a cause of action is entitled to summary judgment on that claim.3 In deciding

whether there is a genuine issue of material fact, we take all evidence favorable

to the nonmovant as true and make all reasonable inferences in the

nonmovant’s favor. 4

      A no-evidence motion for summary judgment places the burden on the

nonmovant to present summary judgment evidence raising a genuine issue of

material fact as to any challenged elements.5 If the nonmovant presents more

than a scintilla of evidence to raise a genuine issue of material fact, summary




      1
          … Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
      2
      … Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985).
      3
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).
      4
          … Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
      5
       … See Tex. R. Civ. P. 166a(i); see also Espalin v. Children’s Med. Ctr.
of Dallas, 27 S.W.3d 675, 682–83 (Tex. App.—Dallas 2000, no pet.).

                                        3
judgment should be denied.6 More than a scintilla of evidence exists when the

evidence “rises to a level that would enable reasonable and fair-minded people

to differ in their conclusions.” 7 In determining whether the nonmovant has met

this burden, we consider the evidence in the light most favorable to the

nonmovant.8

                                     Analysis

        In a single point of error, Gifford contends that the trial court erred by

granting summary judgment for Appellees on all his claims. We will consider

each claim in turn.

Fraud

        Gifford alleged that Don Davis fraudulently induced him to enter into the

retail installment sales contract. Gifford’s fraud claims are predicated on two

alleged misrepresentations in the installment contract, specifically, that Don

Davis misrepresented the nature of the dealer’s inventory tax and included an

itemized charge for an extended warranty that Don Davis never provided or

intended to provide.


        6
            … Espalin, 27 S.W.3d at 683.
        7
        … Merrill Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)
(citations omitted).
        8
     … Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.
App.—Dallas 2000, no pet.).

                                           4
      Fraud – Dealer’s Inventory Tax

      Gifford asserts that Don Davis’s inclusion of a “dealer’s inventory tax” as

an itemized charge in the installment contract amounts to a fraudulent

misrepresentation because it misled him into thinking that a “dealer’s inventory

tax” is assessed at the time of the sale and that he, not Don Davis, owed this

“tax.” To assess this claim, we must construe Texas statutes regarding the

items that may be included as itemized charges in a motor vehicle retail

installment contract and whether the “dealer’s inventory tax” is such an item.

      In Texas, sales of motor vehicles by installment contracts are subject to

the requirements in chapter 348 of the Texas Finance Code. 9             Section

348.102(a)(7) mandates that an installment contract for the sale of a motor

vehicle “must contain . . . each itemized charge.” 10      Section 348.005(2)

authorizes a retail seller of a motor vehicle to include “any taxes” as itemized

charges in the amount financed in a retail installment sales contract.11

Accordingly, if the “dealer’s inventory tax” is a tax within the meaning of “any

taxes” as used in section 348.005(2), a retail seller is authorized to include it

as an itemized charge in an installment contract.


      9
          … Tex. Fin. Code Ann. §§ 348.001–.518 (Vernon 2006).
      10
           … Id. § 348.102(a)(7).
      11
           … Id. § 348.005(2).

                                       5
      Subchapter B of Chapter 23 of the Texas Tax Code contains provisions

for appraisal of a dealer’s inventory for ad valorem tax purposes. 12 Section

23.121 specifies how the value of a dealer’s motor vehicle inventory is to be

calculated on January 1 of each year for assessment of ad valorem taxes on

that inventory.13 The value of a motor vehicle dealer’s inventory on January 1

is one-twelfth of the dealer’s total annual sales volume for the prior tax year. 14

      The tax code requires each dealer to maintain an escrow account with the

local tax assessor-collector to accumulate funds to apply toward the dealer’s

next-year tax liability on its vehicle inventory.15 Each month the dealer deposits

an amount equal to the total unit property tax values assigned to all vehicles

sold from the dealer’s inventory in the prior month.16 The dealer assigns a unit

property tax to each vehicle at the time of sale based on the formula in sections

23.122(a)(12) and (b). 17 The unit property tax reflects the amount that the

dealer must deposit in the inventory tax escrow account for the sale of a



      12
           … Tex. Tax Code Ann. §§ 23.121–.124 (Vernon 2008).
      13
           … Id. § 23.121.
      14
           … Id. § 23.121(b).
      15
           … Id. § 23.122.
      16
           … Id. § 23.122(c).
      17
           … Id. §§ 23.122(a)(12), (b).

                                          6
particular vehicle. 1 8 The escrowed funds are then applied as prepayment of

property taxes to be levied against the dealer’s motor vehicle inventory value

on January 1 of the subsequent year.19 The dealer may not withdraw any

funds deposited to the escrow account.20 The assessor-collector is required to

distribute all the escrowed funds to the relevant taxing units no later than

February 15.21

      Gifford contends that the “vehicle inventory tax” is not a “tax” that can

be included as an itemized charge in an installment contract under section

348.005(2) of the finance code.     It is instead, Gifford argues, a “deposit”

toward the dealer’s future tax liability.   Accordingly, Gifford contends, by

including this deposit in the installment contract as an itemized charge for a

“dealer’s inventory tax,” Don Davis fraudulently misled him into believing that

he owed a tax when he bought the car, when in fact he did not, and that Don

Davis was going to pay that “tax” at the time of purchase, when in fact all Don

Davis did was make a deposit into an escrow account.




      18
           … Id. § 23.122(b).
      19
           … Id. § 23.122(c).
      20
           … Id. § 23.122(d).
      21
           … Id. § 23.122(k).

                                      7
      Don Davis argues in response that the dealer’s inventory tax is in fact a

tax that retail sellers are authorized to include as an itemized charge in

installment contracts and that Don Davis’s inclusion of this tax as an itemized

charge was not a misrepresentation. We agree with Don Davis.

      More than one hundred years ago, the Supreme Court of Texas explained

that the Texas Constitution authorizes the legislature to provide for the manner

of assessment and payment of ad valorem property taxes and that the value of

different types of property could and probably must be assessed by different

methods:

      [T]axation by a uniform rule does not necessarily demand that there
      should be the same mode of assessment for every species of
      property, without regard to any classification. An assessment, in
      the sense of a valuation of the property of the taxpayer for the
      purpose of determining the proportion of tax to be paid, should, it
      is true, be uniform in its mode, to the extent that the property is
      assessed according to its true value in money. But it would not
      follow that different classes of property may not be valued for
      taxation by different officers and boards, and by different modes
      and agencies. . . .

      Our Constitution, after declaring that “taxation shall be equal and
      uniform,” and that property shall be taxed in proportion to its value
      (evidently alluding to ad valorem taxes), adds in the same sentence:
      “Which [value] shall be ascertained as may be prescribed by law.”
      This would seem to leave the Legislature free to adopt the mode of
      ascertaining the value of any class of property by such method as
      it might deem best. If such was the intention, we think it a wise
      provision. Property is so various and ascertainment of its value in
      some cases is so difficult that no mode of such ascertainment


                                       8
      absolutely uniform in every respect could effect the important end
      of equalizing the burden upon all property owners alike.22

Here, the legislature has chosen to assess ad valorem taxes against motor

vehicle dealer inventories by way of a prepayment based on the unit property

tax value assigned to each unit at the time of sale.23 The fact that this is how

the tax is assessed and collected does not make it any less a tax than other ad

valorem taxes.

      In construing the finance and tax code provisions at issue here, we find

it significant that in 1994, shortly after the legislature promulgated what is now

section 23.122 of the tax code, the Finance Commission, the agency charged

with enforcing the finance code, approved the opinion of the Texas Consumer

Credit Commissioner that the “unit property tax value” is “encompassed in the

term ‘any taxes’ as used in [section 23.122]” and that “the unit property tax

value could be included in the cash price or shown as an itemized charge [in an




      22
        … Mo., Kan. & Tex. Ry. Co. of Tex. v. Shannon, 100 Tex. 379,
393–94, 100 S.W. 138, 143–44 (1907); see also State v. Wynne, 134 Tex.
455, 468–69, 133 S.W.2d 951, 958 (Tex. 1939) (“The burden of levying
taxes rests on the Legislature, and that body has [the] plenary power of
prescribing the mode of taxation to raise revenue; and the specification of
certain objects and subject of taxation in the Constitution does not prevent it
from passing laws requiring other subjects or objects to be taxed, unless
expressly prohibited by the Constitution.”).
      23
           … Tex. Tax Code § 23.122(c).

                                        9
installment contract] . . . .” 24 We believe this construction is reasonable and

reflects the legislature’s intent.   Accordingly, we conclude that the “unit

property tax value” is a tax pursuant to the tax code and that the finance code

authorizes dealers to include the amount of the unit property tax value for a

particular vehicle at the time of sale as an “itemized charge.”

      The question remains, however, whether Gifford has raised a fact issue

as to whether Don Davis misrepresented the nature of the tax such that Gifford

was misled into believing that he, not Don Davis, owed the tax.              The

installment contract included as an itemized charge an amount for a “dealer’s

inventory tax paid to seller.”   Gifford provided an affidavit stating that this

language caused him to believe that he, not Don Davis, owed this tax. But

Gifford’s subjective belief about what the words “dealer’s inventory tax paid to

seller” mean is not dispositive of whether those words amounted to a

misrepresentation.

      The Office of the Consumer Credit Commissioner promulgated regulations

detailing what dealers are required to include in motor vehicle installment sales




      24
       … 19 Tex. Reg. 655 (Jan. 24, 1994) (summary of interpretation); see
also Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 623 (Tex.
2007) (construction of statute by administrative agency charged with its
enforcement is entitled to serious consideration, so long as construction is
reasonable and does not contradict plain language of statute).

                                       10
contract. These regulations state that such a contract must have the following

disclosures:

      (4)   Itemized charges not included in the cash price, as required
      by Texas Finance Code, §348.102(a)(7). Itemized charges may
      include, but are not limited to, the following charges as applicable:
      ...
            (C)    Dealer’s inventory tax . . . .25

The commissioner’s office has also published in the regulations a model “motor

vehicle retail installment sales contract.” 26 This model contract includes the

“[d]ealer’s inventory tax” as one of the “[o]ther charges including amounts paid

to others on [buyer’s] behalf” that must be listed in the itemization of the

amount financed.27

      Don Davis’s installment contract is taken almost verbatim from the model

contract.     The only modification made by Don Davis is that its contract

references a “Dealer’s Inventory Tax Paid to Seller.” [Emphasis added.] The

addition of “Paid to Seller” conveys that, unlike other itemized charges that may

be “amounts paid to others on [buyer’s] behalf,” the dealer’s inventory tax is

paid to Don Davis. Accordingly, Don Davis did not misrepresent the nature of

the dealer’s inventory tax or that Gifford was obligated to pay the tax as


      25
           … 7 Tex. Admin. Code § 84.804(4)(C).
      26
           … Id. § 84.809(b).
      27
           … Id.

                                       11
anything but a charged amount payable to Don Davis. Thus, as a matter of

law, Don Davis made no misrepresentation regarding the dealer’s inventory tax,

and the trial court did not err by granting summary judgment for Don Davis on

Gifford’s fraud claim regarding the dealer’s inventory tax.

      Fraud – Extended Warranty

      Gifford also based a fraud claim on the itemized charge for an extended

warranty. In his affidavit, Gifford states Don Davis told him that $1,265.00

was being paid to “Toyota C.” for an extended warranty. Gifford claims that

this statement is fraudulent because, Gifford alleges, Don Davis never actually

paid “Toyota C.” for the extended warranty. Because appellees’ no-evidence

summary judgment motion asserted that there is no evidence of any

misrepresentation by Don Davis, Gifford had the burden to produce some

evidence demonstrating that Don Davis never paid “Toyota C.” for the extended

warranty.28

      The only evidence Gifford presented to support his claim that “Toyota C.”

was never paid was Don Davis’s responses to Gifford’s requests for production.

Specifically, Gifford asked Don Davis to produce any documents “relating to the

amount and payment of other charges delineated in the Retail Installment Sales




      28
           … See Tex. R. Civ. P. 166a(i).

                                        12
Contract including the amounts paid on behalf of purchaser.” After objecting

to this request, Don Davis answered, “None, except as previously made

available or in Plaintiff’s possession.”

      Gifford asserts that this answer is some evidence that Don Davis has no

documents showing payment to “Toyota C.” for the warranty which, Gifford

argues, raises a fact issue as to whether such a payment was made.          We

disagree.   At most, this answer is evidence only that Don Davis has no

documents reflecting payment for the extended warranty other than those

already made available to Gifford or in Gifford’s possession. Gifford presented

no evidence that he reviewed all documents made available by Don Davis and

none show payment to “Toyota C.”, nor does he state that he has no such

documents in his possession. In the absence of other evidence to support this

claim, we cannot say that Gifford has presented more than a scintilla of

evidence to raise a genuine issue of material fact. We, therefore, conclude that

the trial court properly granted summary judgment for Appellees on Gifford’s

fraud claim based on the extended warranty.




                                           13
Unaddressed Causes of Action

      Summary judgment cannot be granted except on the grounds expressly

presented in the motion.29     In determining whether grounds are expressly

presented, reliance may not be placed on briefs or summary judgment

evidence. 30 The purpose of this requirement is to provide the opposing party

with adequate information for opposing the motion and to define the issues or

points for the purpose of summary judgment.31

      Gifford asserted claims under chapter 349 of the finance code, which

creates private causes of action for certain alleged finance code violations. 32

To the extent Appellees sought summary judgment as to these claims, their

summary judgment motion addressed alleged violations based solely on

inclusion of the “dealer’s inventory tax” as an itemized charge in the installment

contract. For the reasons stated above as to Gifford’s fraud claims, summary

judgment was proper as to any claims that Don Davis violated the finance code


      29
       … Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex.
2002); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).
      30
       … McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341
(Tex. 1993).
      31
       … Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex.
1978); Camden Mach. & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 309
(Tex. App.—Fort Worth 1993, no writ).
      32
           … Tex. Fin. Code Ann. §§ 349.001–.503 (Vernon 2006).

                                       14
based on allegedly misrepresenting the nature of the dealer’s inventory tax

charge.

      However, Gifford’s petition raised other alleged finance code violations.

Because Appellees failed to address these other allegations in their summary

judgment motion, the trial court erred by granting summary judgment on

Gifford’s other finance code violation claims.33

      Gifford also sought an order under section 17.50 of the DTPA

permanently enjoining Don Davis from engaging in deceptive conduct like that

alleged generally in his petition.   Because Don Davis’s summary judgment

motion did not address all of the allegations of deception or misrepresentation

raised by Gifford’s petition, summary judgment as to Gifford’s DTPA claim was

improper. 34

      Finally, Gifford asserted claims for wrongful repossession, conversion,

unfair debt collections, and slander of credit. Appellees failed to address any




      33
           … See Johnson, 73 S.W.3d at 204; Martinez, 941 S.W.2d at 912.
      34
        … See Johnson, 73 S.W.3d at 204; Martinez, 941 S.W.2d at 912. We
express no opinion on whether any of Gifford’s allegations other than the
alleged misrepresentation about the nature of the dealer’s inventory tax could
support an injunction under section 17.50 of the DTPA.

                                      15
of these claims in their summary judgment motion. Accordingly, the trial court

erred by granting summary judgment as to these claims.35

                                   Conclusion

      The trial court properly granted summary judgment on Gifford’s claims

that Don Davis misrepresented the nature of the dealer’s inventory tax and

misrepresented payment of the charge for an extended warranty. However, the

trial court improperly granted final summary judgment on the remainder of

Gifford’s claims because Appellees’ motion for summary judgment failed to

address them.

      Accordingly, we affirm the trial court’s judgment in part, reverse the trial

court’s judgment in part, and remand this cause to the trial court for further

proceedings consistent with this opinion.




                                                  JOHN CAYCE
                                                  CHIEF JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: December 11, 2008




      35
           … See Johnson, 73 S.W.3d at 204; Martinez, 941 S.W.2d at 912.

                                       16
