                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-049-CV


JAMES T. FIELDER                                                   APPELLANTS
AND ALYSE FIELDER
                                        V.

LEWISVILLE IMPORTS, LTD.                                               APPELLEE
D/B/A BANKSTON HONDA

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

       FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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

      This is an appeal from a summary judgment. We affirm.

                                  Background

      In December 2003, appellants James T. Fielder and Alyse Fielder

(collectively, Fielder) bought a car from appellee Lewisville Imports, Ltd., d/b/a

Bankston Honda (Bankston). In this transaction, Bankston used a form retail


      1
          … See Tex. R. App. P. 47.4.
installment sales contract that included charges for $1,300.00 for an extended

warranty to be provided by “Honda Care” and for $59.97 for a tax denominated

a “Dealer’s Inventory Tax Paid to Seller.”

      In December 2005, Fielder sued Bankston, alleging claims for fraud,

fraudulent non-disclosure, DTPA violations, and violations of Chapter 348 of the

Texas Finance Code. Fielder’s claims were predicated on two contentions: (1)

that the installment contract misrepresented the nature of the dealer’s inventory

tax, and (2) that Bankston failed to disclose that it was keeping a portion of the

amount paid for the extended warranty.          Bankston moved for summary

judgment, which the trial court granted. This appeal followed.

                               Standard of Review

      A trial court’s grant of a traditional summary judgment is reviewed de

novo.2 The movant for summary judgment has the burden of showing that

there is no genuine issue of material fact and that it is entitled to summary

judgment as a matter of law. 3 A defendant who conclusively negates at least

one essential element of a cause of action is entitled to summary judgment on




      2
          … Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
      3
      … Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985).

                                        2
that claim. 4   In deciding whether there is a genuine issue of material fact,

evidence favorable to the nonmovant will be taken as true, and all reasonable

inferences will be made and all doubts resolved in the nonmovant’s favor. 5

                                    Analysis

      Fielder’s dealer inventory tax claims are identical to those asserted by the

plaintiff and resolved in our recent opinion in Gifford v. Don Davis Auto, Inc. 6

For the reasons expressed in that opinion, the trial court properly granted

summary judgment as to Fielder’s dealer inventory tax claims.7

      Fielder also claimed that Bankston committed fraud and violated the DTPA

and the finance code by failing to disclose that almost half of the amount

charged for the extended warranty was going to be kept by Bankston.

Bankston’s summary judgment motion asserted that Bankston had no duty,


      4
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).
      5
          … Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
      6
      … No. 02-07-00064-CV, 2008 WL 5194314 (Tex. App.—Fort Worth
Dec. 11, 2008, no pet. h.).
      7
       … See id., 2008 WL 5194314, at *2–4; cf. Feagins v. Tyler Lincoln-
Mercury, Inc., No. 06-08-00043-CV, 2008 WL 4999099, at *1–3 (Tex.
App.—Texarkana Nov. 26, 2008, no pet. h.) (holding that summary judgment
was proper on car purchaser’s claims that dealer’s inventory tax charge violated
Texas Finance Code, but concluding that car purchaser’s affidavit raised fact
issue precluding summary judgment on fraud and DTPA claims based on
dealer’s inventory tax).

                                        3
either at common law or under any statute, to disclose the amount it retained

from the extended warranty charge. We agree with Bankston.

      Whether a duty to disclose exists is a question of law.8 Fielder’s fraud

claim was based on the theory that Bankston “partially” disclosed the cost of

the extended warranty and, therefore, had a duty to fully disclose where the

proceeds from that charge were going.9 By including the extended warranty

charge under the heading, “Other Charges Including Amounts Paid to Others on

Your Behalf (Seller may keep part of these amounts),” the installment contract

disclosed to Fielder that Bankston may keep part of the extended warranty

charge. The installment contract, therefore, did not convey the false impression

that Bankston was not keeping part of the extended warranty charge, and

Bankston had no duty to disclose that it was.

      Fielder’s statutory claims based on the extended warranty charge are

equally unavailing. Section 348.301 of the Texas Finance Code provides that,

notwithstanding any other applicable law, no one assigning a retail installment


      8
     … See Feagins, 2008 WL 4999099, at *5 (citing Bradford v. Vento, 48
S.W.3d 749, 755 (Tex. 2001)).
      9
        … See, e.g., BP Am. Prod. Co. v. Marshall, No. 04-06-00478-CV, 2008
WL 5169635, at *8 (Tex. App.—San Antonio Dec. 10, 2008, no pet. h.)
(noting that “Texas appellate courts have held a duty to disclose may arise in
an arm’s length business transaction when one party makes a partial disclosure
that although true, conveys a false impression”); Feagins, 2008 WL 4999099,
at *5 and n.8 (same).

                                       4
contract or any balance under the contract has any duty to disclose the terms

of the assignment.10 This statute precludes any duty on Bankston’s part to

disclose that it was keeping a portion of the charge for the extended

warranty.11

      Moreover, section 348.009 provides that a failure to make a particular

disclosure does not constitute a violation of chapter 348 if such a disclosure is

not required by “a federal law, including a regulation or interpretation of law.” 12

The Federal Reserve Board considered but elected not to require disclosure that

a dealer is retaining part of a charge for an extended warranty.13 Bankston,

therefore, had no statutory duty to disclose the difference between the amount

charged for the extended warranty and the amount kept by Bankston.

      Because Bankston demonstrated its entitlement to summary judgment on

all of Fielder’s claims, we affirm the trial court’s judgment.


                                                   PER CURIAM

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




      10
           … Tex. Fin. Code Ann. 348.301 (Vernon 2006).
      11
           … See Feagins, 2008 WL 4999099, at *5.
      12
           … Tex. Fin. Code Ann. § 348.009.
      13
           … 42 Fed. Reg. 19,124–19,125 (April 12, 1977).

                                         5
DELIVERED: January 15, 2009




                              6
