                             NO. 07-09-0315-CV
                             NO. 07-09-0354-CV

                        IN THE COURT OF APPEALS

                  FOR THE SEVENTH DISTRICT OF TEXAS

                               AT AMARILLO

                                 PANEL B

                           SEPTEMBER 10, 2010


                             BYRON MORGAN,

                                                     Appellant

                                     V.

                     D&S MOBILE HOME CENTER, INC.,

                                                      Appellee


          STEPHANIE WYBLE, Individually and as Next Friend of FAITH
           KUYKENDALL, a Minor, and HOPE KUYKENDALL, a Minor,

                                                        Appellant
                                     v.

                     D&S MOBILE HOME CENTER, INC.,

                                                         Appellee
                     _____________________________

          FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

      NOS. 61,517-A AND 59,594-A; HONORABLE HAL MINER, PRESIDING


                           Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
       This appeal emanates from a dispute involving the purchase of a mobile home.1

Though purportedly new, it actually was not. Though the damages caused during its

delivery were to be repaired, they purportedly were not. Those who bought the home

were Stephanie Wyble and Byron Morgan (who allegedly represented themselves to be

married under the common law). The seller, in turn, was D&S Mobile Home Center, Inc.

According to the record, Wyble sued D&S, asserting claims of fraud and deceptive trade

practices. D&S responded by denying liability and counterclaiming for sanctions. It also

sued Morgan, though he was not a party to Wyble’s suit. Additionally, the recovery

sought against Morgan generally consisted of specific performance; that is, D&S sought

to have him negotiate a settlement check delivered to settle damage claims arising

when the home was physically moved to its intended lot in Amarillo.

       The trial court not only granted D&S summary judgment but levied sanctions

against Wyble. Whether it did so correctly is what we are being asked to address. For

the reasons which follow, we will reverse the the judgments and sanction order.

       Morgan’s Claims

       Though Morgan asserts a myriad of issues, all need not be addressed. One is

dispositive of the appeal, and it pertains to whether D&S proved, as a mattler of law, its

entitlement to a summary judgment disposing of all claims. We conclude that it did not.

       As previously alluded to, D&S sought specific performance of a settlement

agreement. Per that accord, D&S’ insurer issued a check payable to both Morgan and

D&S. In return, Morgan executed a writing wherein he agreed to:

       1
          Because summary judgments are involved, we construe the evidentiary record in a light most
favorable to the non-movant. See Valance Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)
(requiring as much from the reviewing court).

                                                 2
      release, acquit and forever discharge Essex Insurance Company … and
      Shawn Fuller DBA D&S Mobile Home Center . . . and his, her, their, or its
      agents, servants, successors, heirs, executors, administrators, and all
      other persons, firms, corporations, associations, or partnerships of and
      from any and all claims, actions, causes of action, demands, rights,
      damages, costs, loss of service, expenses and compensation whatsoever,
      which the undersigned now has/have or which may hereafter accrue on
      account of or in any way growing out of any and all known and unknown,
      foreseen,and unforeseen, bodily and personal injuries and property
      damage and the consequences thereof resulting or to result from the
      accident, casualty, or event which occurred on or about the 15th day of
      April 2007at or near Amarillo, TX. . . . [Emphasis added.]

      It is understood and agreed that this settlement is the compromise of a
      doubtful and disputed claim, and that the payment made is not to be
      construed as an admission of liability on the part of the party or parties
      hereby released, and that said releasees deny liability therefore and
      intend merely to avoid litigation and their peace. Furthermore, this release
      is intended only to operate as a release of whatever claims the
      undersigned may have against the releasees . . . .

      The undersigned further declare(s) and represent(s) that no promise,
      inducement, or agreement not herein expressed has been made to the
      undersigned, and that this Release contains the entire agreement
      between the parties hereto, and that the terms of this Release are
      contractual and not a mere recital . . . .


The “accident, casualty, or event” mentioned encompassed the damages inflicted upon

the mobile home while being transported to its lot in Amarillo. Assuming arguendo, that

the document was and is enforceable, the record nonetheless contains evidence of

D&S’ representation to Morgan, during the home’s acquisition, that the mobile home

was new when it was not. Indeed, appearing within the summary judgment record was

evidence that the home not only had been sold to another person but also that (as of

the date of deposition) D&S had yet to cause title to be transferred from the original

buyer to Morgan. These circumstances provided basis for Morgan to complain, via his

“counterclaim,” of D&S knowingly misrepresenting “. . . that the home would be of a

                                           3
particular quality, fitness, and value” when it was not and of committing “common law

fraud” and a “deceptive trade practice.” And, since they were unrelated to the “accident,

casualty, or event” of April 15, 2007 (i.e. the transportation of the home to Amarillo),

they were not encompassed by the release.2                   This, in turn, means that they were not

encompassed by D&S’ motion for summary judgment since it was restricted to issues

regarding the release and its enforcement.                   Consequently, the trial court could not

legitimately adjudicate them at the time.                  Johnson v. Brewer & Prichard, P.C., 73

S.W.3d 193, 204 (Tex. 2002) (holding it error to adjudicate claims that fall outside the

scope of the summary judgment motion).

        We further note that D&S included, within the summary judgment evidence, the

deposition of Morgan. At several points during that deposition, Morgan described how

D&S promised to repair the damage incurred by the mobile home during its transit to

Amarillo, how he agreed to sign the release because D&S so promised, and how D&S

failed to complete the repairs as promised. So too did Morgan plead the affirmative

defense of failed consideration in effort to negate the enforceability of the release. This

is important because when the consideration underlying a contract fails, the contract

becomes unenforceable. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex.

1997). Given that the defense had been alleged, that D&S itself presented evidence

addressing the matter via its summary judgment proof, and that there was evidence
        2
         That neither D&S nor the trial court viewed the summary judgment as adjudicating all the causes
asserted by Morgan is exemplified by comments made during a May 15, 2009 hearing. A summary
judgment order had been signed about four months earlier, that is, in January of 2009. Yet, the May 15th
hearing involved special exceptions filed by D&S on May 6, 2006, to Morgan’s counterclaim. And, at that
hearing, the trial court stated “that [the] . . . Special Exceptions against the counterclaim of . . . Morgan be
answered by . . . the 29th of May.” Had the January 2009 summary judgment adjudicated all claims and
causes of action, there would have been no need for the trial court to address whether the counterclaims
were sufficiently pled at the May 15th hearing or to order Morgan to modify them by May 29th.

                                                       4
tending to illustrate that D&S failed to perform a promise used to induce execution of the

release, a material issue of fact existed and exists with regard to the defense of failed

consideration and the enforceability of the release.3

         Simply put, the trial court erred in granting summary judgment in favor of D&S

and against Morgan. Thus, both the final judgment executed on September 29, 2009,

and summary judgment executed on January 12, 2009, will be reversed.

         Wyble’s Appeal

         Death Penalty Sanctions

         In considering the appeal of Wyble, we first address the order entered by the trial

court on September 11, 2009, prohibiting her from offering “any testimony or evidence

regarding damages in her case in chief” and directing that her “claims” be “denied”

because she “cannot put on evidence of the essential element of damages in her case

….” This mandate was executed in response to the motion of D&S to sanction Wyble

for failing to supplement a discovery request.            That is, she was asked during her

deposition to identify the expert or lay witnesses who were going to discuss the

damages she allegedly suffered. No names were provided at the time. And, because

the period allotted to perform discovery allegedly had expired and she failed to

supplement the particular discovery request, D&S convinced the trial court to issue the

aforementioned order. This was wrong, according to Wyble, for various reasons. We

agree.

         3
        No one alleged via their summary judgment motion or responses thereto that the parole
evidence rendered unenforceable the claim of failed consideration. Thus, we do not address that issue
on appeal since summary judgment can be affirmed or reversed only on those grounds included in the
summary judgment motion, evidence, and responses there. TEX. R. CIV. P. 166a(c); Johnson v. Driver,
198 S.W.3d 359, 362 (Tex. App.–Tyler 2006, no pet.).

                                                 5
        That the order was tantamount to “death penalty sanctions” cannot reasonably

be denied. Indeed, D&S described them as such in a hearing. That the period for

discovery had not ended when the trial court executed its September 11th sanctions

order is also beyond dispute. Indeed, before then D&S itself had requested and caused

the trial court to “reopen” and extend discovery to October 15, 2009. Additionally, the

order manifesting that new deadline was executed on August 7, 2009, or about a month

before the “death penalty” sanction was issued. And, by September 11th, Wyble had

served D&S with a “Designation of Expert” and thereby supplied D&S with the

supposedly outstanding information. Thus, the premise underlying the sanction was

non-existent. Discovery had not closed and the response was supplemented before the

death penalty sanction issued.4          Simply put, the trial court abused its discretion in

entering the September 11th order.

           Summary Judgments Against Wyble

        Next, Wyble contends that the trial court erred in entering summary judgments

favoring D&S. We agree.

        D&S twice moved for summary judgment against Wyble. One was filed on June

22, 2009, and the other on September 23, 2009. The order granting final summary

judgment was executed on September 29, 2009, and upon which motion it acted went

unspecified. If it was the one filed on September 23rd, then granting it was error. This

is so because the earliest date upon which a trial court may hear a pending motion for
       4
          That the trial court considered the decision to “reopen” discovery as implicitly negating its
previously issued order denying Wyble the opportunity to proffer evidence on damages is illustrated by a
comment uttered at a September 11, 2009 hearing. There, it stated that “[a]s far as Ms. Wyble is
concerned, I don’t know what discovery reopening will do, but it may change everything and you may
have to resubmit motions for Summary Judgment . . . . you may have allowed [her] to create factual
issues . . . .”

                                                   6
summary judgment is twenty-one days after the motion is served on the non-movant.

TEX. R. CIV. P. 166a(c); Fertic v. Spencer, 247 S.W.3d 242, 248 (Tex. App.–El Paso

2007, pet. denied).        According to the certificate of service appearing on D&S’

September 23rd motion, Wyble was served with the document on September 18, 2009.

Needless to say, the time period between September 18th and the 29th is a mere

eleven days, not the twenty one mandated by Rule 166a(c). Thus, the trial court could

not have legitimately considered the September 23rd motion.

       As for the June motion, D&S thought itself entitled to summary judgment

because Wyble 1) was not a consumer under the Deceptive Trade Practices Act since

Morgan allegedly sought and acquired the mobile home and 2) could proffer no

evidence of damages.5 Regarding the former, it has been clear for many years that

being a consumer does not require some contractual nexus or privity to the underlying

transaction. Cook-Pizzi v. Van Waters & Rogers, Inc. 94 S.W.3d 636, 644 (Tex. App.–

Amarillo 2002, pet. denied); McDuffie v. Blassingame, 883 S.W.2d 329, 333 (Tex. App.

–Amarillo 1994, writ denied). Rather, one need only be an intended beneficiary of the

sale, lease, or service to qualify. McDuffie v. Blassingame, 883 S.W.2d at 333; see

Service Corp. Int’l v. Aragon, 268 S.W.3d 112, 117 (Tex. App.–Eastland 2008, pet.

denied) (holding that a third-party beneficiary can be a consumer if the transaction was

specifically required by or intended to benefit the third party and the goods or service

was rendered to benefit the intended beneficiary). And, family members who did not

personally execute the agreement in question or pay for the services or goods obtained

       5
         Though the issues specified in the motion for summary judgment are described in numerous
ways, each focuses on Wyble’s alleged inability to establish damages because she did not buy or pay for
the mobile home.

                                                  7
may nonetheless be consumers.         See e.g., Service Corp. Int’l v. Aragon, supra

(involving the interment of a body in the wrong cemetery plot).

      The summary judgment record before us contains evidence that Morgan and

Wyble were common law husband and wife at the time the mobile home was purchased

and the home was acquired for the family (i.e. Morgan, Wyble and her children) to live

in. That is enough evidence tending to illustrate that the abode was specifically required

by or intended to benefit Wyble and the children and rendered to benefit those same

individuals; consequently, D&S failed to carry its summary judgment burden and prove

as a matter of law that they were not consumers.

      As for the purported lack of evidence regarding Wyble’s damages, she testified

during her deposition (a transcription of which was attached by D&S to its motion) that

she was damaged in an amount equal to the value of a like home without the defects at

issue. Furthermore, the value of such a home was $130,000. This alone is some

evidence of damages, and its presence in the record negates the proposition of D&S

that she could tender none.

      The issues addressed above are dispositive of the appeal. Indeed, the others

posed by Wyble and Morgan are dependent upon the legitimacy of the summary

judgments and sanction order entered by the trial court. Accordingly, we reverse the

final and summary judgments as well as the order denying Wyble the opportunity to

proffer evidence of damages and remand the causes to the trial court.



                                                Brian Quinn
                                                Chief Justice


                                            8
