                               MEMORANDUM OPINION
                                       No. 04-09-00730-CV

                                     AML MOTORS, INC.,
                                         Appellant

                                                v.

                                       Da’mon THOMAS,
                                           Appellee

                     From the County Court at Law No 2, Bexar County, Texas
                                     Trial Court No. 347193
                            Honorable Linda F. Penn, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: September 29, 2010

REVERSED AND REMANDED

           Da’Mon Thomas sued AML Motors, Inc. for breach of contract, fraud, and rescission,

asserting Thomas paid AML for extended service or warranty coverage on a car that was

ineligible for such coverage. Thomas moved for summary judgment on his breach of contract

claim, and AML filed a counter-motion as to all of Thomas’s claims. The trial court granted

Thomas’s motion and denied AML’s motion. On appeal, AML contends the trial court erred in

granting Thomas’s motion and denying AML’s motion because: (1) the evidence established
                                                                                                     04-09-00730-CV


Eagle Warranty Corporation (“Eagle”) approved the warranty coverage for Thomas’s car; and

(2) Thomas’s own actions voided the warranty coverage. We reverse the trial court’s judgment

and remand the cause to the trial court for further proceedings. 1

                                                FACTUAL BACKGROUND

         On June 24, 2006, Thomas purchased a car from AML. Pursuant to the Retail Buyers

Order signed by the parties, Thomas purchased extended service for $500. The Retail Buyers

Order listed the car’s mileage as 177,302 miles.

         To purchase the extended service, Thomas signed an application provided by AML for a

Liberty Service Contract. The application listed the car’s mileage as 174,302 miles. The Liberty

Service Contract terms stated the application would not provide extended service or warranty

coverage until received and marked accepted by Eagle. The terms further stated that any vehicle

with more than 175,000 miles was not eligible to be covered under the Liberty Service Contract.

         On July 15, 2006, the engine of the car Thomas purchased from AML broke down and

ultimately seized.        On July 20, 2006, Eagle accepted Thomas’s application for warranty

coverage. The warranty card Eagle sent to Thomas listed the mileage as 174,302 miles. After

Eagle denied Thomas’s claim for warranty coverage, Thomas sued AML, asserting claims for

breach of contract, fraud, and rescission.

                                                 STANDARD OF REVIEW

         The standard of review for a summary judgment is well established: (i) the movant for

summary judgment has the burden of showing there is no genuine issue of material fact and it is

entitled to summary judgment as a matter of law; (ii) in deciding whether there is a disputed fact


1
  We note that the trial court’s judgment purported to be final even though Thomas only moved for summary
judgment as to one of his claims. Because the trial court’s order stated that the judgment “is final for all purposes
and fully appealable,” we have jurisdiction to consider this appeal even though the trial court’s order did not dispose
of Thomas’s fraud and rescission claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204-06 (Tex. 2001).

                                                         -2-
                                                                                    04-09-00730-CV


issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;

and (iii) every inference must be indulged in favor of the nonmovant and any doubts resolved in

his favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review a

trial court’s summary judgment de novo. Traveler’s Ins. Co. v. Joachim, 315 S.W.3d 860, 862

(Tex. 2010). When both sides move for summary judgment, as they did here, and the trial court

grants one motion and denies the other, reviewing courts consider both sides’ summary-

judgment evidence, determine all questions presented, and render the judgment the trial court

should have rendered. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415-16 (Tex. 2000).

                                              DISCUSSION

       AML contends Thomas’s receipt of a warranty card from Eagle precluded summary

judgment in Thomas’s favor. AML contends that same evidence conclusively established its

right to summary judgment by negating the breach and damages elements of Thomas’s claim.

Thomas responds that the evidence conclusively established the car he purchased was ineligible

for coverage under the Liberty Service Contract; accordingly, the trial court properly granted

summary judgment in his favor, awarding him the amount he paid for the coverage, i.e., $500, as

damages. We disagree with both parties.

       Although the Liberty Service Contract did provide that cars with more than 175,000

miles were ineligible for coverage, a genuine issue of material fact existed as to the exact

mileage of the car Thomas purchased. The Retail Buyers Order listed the mileage as 177,302

miles, but the application to Eagle listed the mileage as 174,302 miles. Gary Klasing, an

employee of AML, was asked during his deposition whether he thought “the mileage listed on

the retail buyer’s order is the correct mileage” or whether “the correct mileage is what is written

on the application.” Klasing responded, “I would really need to see the title work on the car.”



                                               -3-
                                                                                    04-09-00730-CV


       Thomas asserts in his brief that the summary judgment cannot be reversed on this basis

because AML did not raise this fact issue as a basis for defeating the summary judgment in his

response. This assertion ignores that Thomas was the movant and had the burden to establish his

right to summary judgment on the issues presented to the trial court by conclusively proving all

elements of his cause of action. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999). AML, as the non-movant, was not required to file a response to defeat Thomas’s motion

unless Thomas conclusively established his claim. Wheeler v. Greeen, 157 S.W.3d 439, 442

(Tex. 2005). “Summary judgments must stand on their own merits.” Rhone-Poulenc, Inc., 997

S.W.2d at 223. “Accordingly, on appeal, the nonmovant need not have answered or responded

to the motion to contend that the movant’s summary judgment proof is insufficient as a matter of

law to support summary judgment.” Id. “On appeal, the 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.” Id. In this case, Thomas failed to conclusively establish his claim because

the summary judgment evidence, including Klasing’s deposition excerpt which was attached to

Thomas’s motion, failed to conclusively establish that Thomas’s car was ineligible for warranty

coverage.

       AML contends that summary judgment should have been granted in its favor because

Eagle sent Thomas a warranty card and Thomas admits in his brief that Eagle denied Thomas’s

claim for reasons other than the mileage exclusion. We initially note that no summary judgment

evidence was submitted to establish the basis upon which Eagle denied coverage. Moreover, no

summary judgment evidence was presented to conclusively establish that Eagle would have

provided Thomas the warranty coverage if the car’s mileage had exceeded 175,000 miles.

Although Eagle could have waived the exclusion, no summary judgment evidence was presented



                                               -4-
                                                                                      04-09-00730-CV


to conclusively establish that Eagle did so in this case. If the car’s mileage exceeded 175,000

miles and Eagle would not have provided the warranty coverage based on the car’s ineligibility,

then fact issues remain with regard to whether AML breached the Retail Buyers Order by failing

to provide the extended service coverage it had sold to Thomas.

        AML finally contends that summary judgment should have been granted in its favor

because Thomas’s deposition testimony established that he continued driving the car after he was

on notice of potential engine problems which would have provided an additional basis on which

Eagle could have denied Thomas’s claim. AML contends this would conclusively negate the

damages element of Thomas’s cause of action. This contention ignores, however, that Thomas’s

claim is for a breach of the Retail Buyers Order based on AML’s failure to provide Thomas with

extended service coverage. If AML breached the agreement by failing to provide Thomas

coverage, then the damages would be the $500 Thomas paid for coverage he never received.

Evidence that Thomas would have been denied coverage under a warranty that he never received

is immaterial to this issue.

                                               CONCLUSION

        The trial court’s order is reversed, and the cause is remanded to the trial court for further

proceedings.

                                                  Marialyn Barnard, Justice




                                                -5-
