                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-13-00185-CV


           LANCE BRANDON LOUDDER, 2L FARMS, A TEXAS PARTNERSHIP,
                      AND TERRI LOUDDER, APPELLANTS

                                                    V.

                                  CROP QUEST, INC., APPELLEE

                             On Appeal from the 242nd District Court
                                      Castro County, Texas
                Trial Court No. B9355-1108, Honorable Edward Lee Self, Presiding

                                               July 8, 2014

                                  MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.1

      Lance Brandon Loudder, Terri Loudder, and 2L Farms appeal from a judgment

denying them recovery against Crop Quest, Inc.                    The former had sued the latter

asserting causes of action sounding in deceptive trade practice, fraud, breach of

contract and negligence. Crop Quest filed two “no evidence” motions for summary

judgment, which motions the trial court granted. The Loudders and 2L Farms contend

before us that the decisions were wrong and summary judgments should not have been

rendered. We affirm.

      1
          John T. Boyd, Senior Justice retired, sitting by assignment.
        Standard of Review

        The standard of review is discussed in Kimber v. Sideris, 8 S.W.3d 672, 675-76

(Tex. App.—Amarillo 1999, no pet.), and we apply it here. We further note that parties

often include multiple grounds for summary judgment in their motions. When they do

and should the trial court grant the motion without specifying any particular ground upon

which it relied, the appellant has the burden of illustrating why none of the grounds

support the ruling. Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas

2009, pet. denied). Should he not do that, then he failed to prove error. Id.

        Background

        The dispute arises from the application of Roundup herbicide to white corn

planted by 2L Farms. The decision to apply the herbicide was made by an employee of

Crop Quest, Kirk Aljoe. Crop Quest had been retained by 2L Farms to provide services,

such as advice, reporting, and recommendations, to 2L Farms regarding 2L Farms’

farming efforts during the 2010 calendar year.                   One aspect of the agreement

encompassed the type of herbicide to apply to the crops growing in an area called Pivot

29. It historically had been planted with yellow corn, a fact about which Crop Quest

knew. However, 2L Farms decided to sow the field with white corn. While the former

type of corn was Roundup tolerant, the latter was not. And, when it came time to select

which herbicide to apply, that selected by Aljoe contained traces of Roundup.2 The

herbicide adversely affected the crop’s growth which then affected crop yield.




        2
           Allegedly, Aljoe thought that yellow, not white, corn had been sown in the field. Though his
selection of herbicide would have been safe for either yellow or white corn, the product was mixed with a
small amount of Roundup that remained in the applicator tanks from previous use. Aljoe was informed of
the situation but nonetheless approved its application because of yellow corn’s purported resistance to
the herbicide.
                                                     2
       The Loudders and 2L Farms sued Crop Quest. As acknowledged by Brandon

Loudder during his deposition, “the gist of . . . [their] claim is that somehow or another

Mr. Aljoe should have known that . . . [they] . . . planted white corn in pivot 29 and

known that it wasn't Roundup Ready[.]” Aljoe denied knowing and being told that the

crop had been changed from yellow to white corn. Brandon Loudder, however, attested

via deposition both that he had and had not told Aljoe or Crop Quest of the change

before application of the herbicide.

       Deceptive Trade Practice Claims—Representations

       2L Farms and the Loudders averred various claims against Crop Quest founded

on the Deceptive Trade Practices Act, that is, Texas Business and Commerce Code

§§ 17.41 et seq. (West 2011). They contended that Crop Quest violated § 17.46(b) of

the Act because it 1) represented that goods or services had sponsorship, approval,

characteristics, ingredients, uses, benefits, or quantities which they did not have or that

a person had a sponsorship, approval, status, affiliation, or connection which he does

not; 2) represented that an agreement confers or involves rights, remedies, or

obligations which it did not have or involve, or which are prohibited by law; 3)

represented that a guarantee or warranty conferred or involved rights or remedies which

it did not have or involve; and 4) failed to disclose information concerning goods or

services which was known at the time of the transaction with the intention to induce the

consumer into a transaction into which the consumer would not have entered had the

information been disclosed. They also sued for breached warranties. As previously

mentioned, Crop Quest sought to defeat these claims via a “no evidence” motion for

summary judgment. Via that motion, it questioned the existence of evidence illustrating

each element underlying the allegation.      Furthermore, the trial court mentioned no

                                            3
particular ground upon which it acted when granting the motion. Now we are told the

trial court erred. We overrule the issue.

       Two summary judgment grounds uttered by Crop Quest are of note here. The

first concerns the nonexistence of evidence illustrating that the Loudders were

“consumers” and the second involves the nonexistence of evidence indicating that the

purported representations underlying the deceptive trade practice claims were made

prior to or contemporaneous with the execution of the service contract.

       Regarding the former, Crop Quest alleged that “[t]he November 2, 2009 Service

Contract, which forms the basis of Plaintiffs' DTPA claims, was between Defendant and

Plaintiff 2L Farms. There is thus no evidence that Plaintiffs Brandon Lance Louder and

Terri Louder were ‘consumers' under the DTPA.”         In other words, the “consumer” was

2L Farms since the contract was with that entity, not with the Louders individually. We

cannot but interpret this as Crop Quest’s effort to invoke the entity theory of

partnerships recognized in Texas. See In re Allcat Claims Serv., L.L.P., 356 S.W.3d

455, 463-64 (Tex. 2011) (stating that (1) “Texas adheres to the entity theory,” (2) the

legislature “‘unequivocally embrace[d] the entity theory of partnership by specifically

stating . . . that a partnership is an entity distinct from its partners’” in Texas Revised

Civil Statutes Ann. art. 6132b-2.01, and (3) the Texas Business Organizations Code

“plainly provides that ‘[a] partnership is an entity distinct from its partners’”). And, given

that argument, it was encumbent upon the Loudders to address whether being partners

in the 2L Farms partnership qualified them as consumers under the Deceptive Trade

Practices Act even though they did not sign the contract individually.          Neither did,

though. Instead, they simply argued that because the definition of “consumer” includes

“individuals” and they were individuals, they therefore were consumers. That is also the

                                              4
same argument raised before us. They again did not address whether members of a

partnership qualified as consumers vis-a-vis a transaction when the transaction is

between the partnership (not the members of the partnership) and a third party.

Because they did not, they failed to illustrate that the trial court could not have granted

summary judgment against the Loudders on their deceptive trade practice claims.3

       As for the matter about representations being made prior to execution of the

contract for services, the complaints of 2L Farms pertain to the failure of Crop Quest to

perform as it promised in its contract. For instance, it argued that 1) “the November 2,

2009 agreement made specific representations that Crop Quest would assist 2L Farms

with decisions involving agronomic recommendations that could enhance the yield and

efficiency of 2L Farms' crop production,” 2) “the agreement made a specific

representation that a representative of Crop Quest would maintain personal and written

contact with 2L Farms for the purpose of exchanging information regarding crop

production,” and 3) “the agreement made specific representations that Crop Quest

would maintain records of the production practices and activities for the benefit of 2L

Farms.”    Each, actually, was a term of the contract or a promise contained in the

contract, and, according to 2L Farms, they were purportedly false or misleading

because Crop Quest allegedly failed to perform them. Additionally, we were not cited to

anything of record indicating that Crop Quest made any prior or contemporaneous

representations pertaining to those contractual obligations. See Ken Petroleum Corp. v.

Questor Drilling, Corp., 24 S.W.3d 344, 357 (Tex. 2000) (rejecting the argument that

because the contractual indemnity agreement was void, there arose a deceptive trade

practice since there was no evidence that Questor made representations about the
       3
        Crop Quest raised like arguments against other causes of action asserted by 2L Farms and the
Loudders. Furthermore, the argument went unaddressed in each instance.
                                                 5
indemnity obligation). Again, the complainant simply cites to the obligations themselves

and posits that because they were purportedly breached, the obligations constituted

false or misleading representations. This is problematic because simply breaching a

contract does not alone give rise to a false, misleading, or deceptive act.      Rocky

Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex.

1998); Continental Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 389-90 (Tex.

App.—Texarkana 2003, pet. denied). And, because the purported representations here

were merely the promises constituting the contract, the failure to perform them did not

convert them to misleading, deceitful, or deceptive misrepresentations for purposes of a

deceptive trade practice claim. Continental Dredging, Inc. v. De-Kaizered, Inc., 120

S.W.3d at 389-90 (stating that there was no evidence to support the DTPA claim

because the representation simply concerned the failure to dredge the area to the depth

required by the contract).

       We do note that 2L Farms also averred that Crop Quest failed to disclose

information concerning goods or services which was known at the time of the

transaction with the intention to induce the consumer into a transaction into which the

consumer would not have entered had the information been disclosed. The pertinent

transaction is the November 2009 contract whereby Crop Quest agreed to advise 2L

Farms. Yet, to reiterate, the crux of 2L Farms’ complaint involved the misapplication of

Roundup, the supposed failure to disclose the intent to apply Roundup, and the failure

to maintain records and communicate with 2L Farms about the application. None of

that occurred before the execution of the November agreement. Thus, they could not

have induced 2L Farms into entering the transaction.



                                           6
      Deceptive Trade Practice—Breach of Warranty

      Next, 2L Farms averred that “the following warranties were breached and

therefore actionable under Section 17.50(a)(2) of the Texas Business and Commerce

Code: a) the implied warranty of fitness for a particular purpose; b) the implied warranty

of good and workmanlike performance; [and] c) [the] [e]xpress warranties and

representations made in the Service Agreement between Plaintiffs and Defendant dated

November 2, 2009.”4          Via its motion for summary judgment, Crop Quest asserted,

among other things, that there was no evidence of 1) the existence of a warranty, either

expressed or implied, 2) reliance by 2L Farms, 3) breach, and 4) causation. The motion

was granted, again without specification of any particular ground upon which the trial

court relied. According to 2L Farms, the decision was wrong because the complainant

presented some evidence creating a question of fact on each element attacked. We

overrule the issue.

      Express Warranty

      The express warranty is best described by 2L Farms in its appellant’s brief.

According to that document, it consists of the statement in “[t]he Service Agreement”

between it and Crop Quest stating that “‘Crop Quest will assist the producer with the

decisions involving crop selection and other agronomic recommendations that can

enhance the yield and efficiency of crop production . . . .’” The passage purportedly “is

a clear representation concerning the quality or characteristics of the services,” and,

therefore, is an express warranty.

      A warranty describes the "character, quality, or title" of that which is being sold

and "by which seller promises or undertakes to insure that certain facts are or shall be

      4
          Plantiffs’ Second Amended Petition.
                                                7
as he then represents them.” Chilton Ins. Co. v. Pate & Pate Enters., 930 S.W.2d 877,

890-91 (Tex. App.—San Antonio 1996), (quoting BLACK’S LAW DICTIONARY 1586 (6th ed.

1990)). Furthermore, there must be a “definitive” affirmation of fact or promise for the

warranty to be expressed.       Id.   Necessarily then, an express warranty relating to

services is a definitive affirmation of fact or promise relating to the character or quality of

the services.    See Paragon General Contractors, Inc., v. Larco Constr., Inc., 227

S.W.3d 876, 886 (Tex. App.—Dallas 2007, no pet.) (stating that a cause of action for

breached warranty for services includes, among other things, a representation by the

defendant to the plaintiff “about the characteristics of the services by affirmation of fact,

by promise, or by description”). And, one assesses whether a breach of that warranty

occurred by determining whether the services received conformed to the character and

quality of those promised. Chilton Ins. Co. v. Pate & Pate Enters., 930 S.W.2d at 891.

       At this point, we refer the reader back to 2L Farms’ description of the express

warranty at bar. Again, it consisted of the contractual obligation that “Crop Quest will

assist the producer with the decisions involving crop selection and other agronomic

recommendations that can enhance the yield and efficiency of crop production . . . .”

Though the complainant characterizes that as “a clear representation concerning the

quality or characteristics of the services” involved, it failed to explain how that was so.

Indeed, it merely concluded as much.

       Our interpretation of the entire contract leads us to construe the passage simply

as describing what Crop Quest agreed to do; that is, provide farming advice for the

purpose of enhancing crop yield.        More importantly, nothing within it specifies any

particular result or standard against which performance could be measured. Indeed,

the contract specified that “Crop Quest cannot guarantee yields or results from its

                                              8
recommendations due to its inability to control the quality of products used, or the

application of such products.” Having effectively disclaimed any guarantee regarding

yield and results, Crop Quest’s reference to assisting the producer in enhancing yields

is not a definitive affirmation or promise relating to character, quality, or attributes of the

services to be provided.      It must be remembered that the meaning of words and

passages in a contract are interpreted by considering them within the context of the

whole document. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.

2005). 2L Farms’ effort to focus only on a contract passage alluding to the desire to

enhance crop yield fails to abide by that rule.

       Implied Warranties

       Next, 2L Farms asserts that “[t]here is evidence that [Crop Quest] breached (i)

the implied warranty of fitness for a particular purpose, and (ii) the implied warranty of

good and workmanlike performance.” Thus the trial court purportedly erred in granting

summary judgment on those claims. We overrule the issue.

       2L Farms included neither argument nor authority in its appellant’s brief

regarding the contention that Crop Quest violated the implied warranty of good and

workmanlike performance. Thus, the argument was and is waived. Harris v. Archer,

134 S.W.3d 411, 447 (Tex. App.—Amarillo 2004, pet. denied) (holding that the failure to

cite authority or provide argument supporting an issue is inadequate briefing resulting in

the waiver of that issue).

       As for the argument about breaching an implied warranty regarding the fitness of

goods purchased, Crop Quest sought to defeat this claim below by asserting, among

other things, that 1) our Supreme Court “has . . . held that an implied warranty of fitness

for a particular purpose does not apply to a product provided as an inseparable part of

                                              9
the rendition of professional services. See Walden v. Jeffrey, 907 S.W.2d 446,448 (Tex.

1995)” and 2) “there is no evidence that the Service Contract was exclusively for the

sale of goods (which were not an inseparable part of the rendition of professional

services).” In other words, Crop Quest argued that there could be no such implied

warranty here because 2L Farms bought services, and the herbicide applied to Pivot 29

was an indivisible aspect of providing those services. Given that the trial court did not

indicate it granted summary judgment on grounds other than this, 2L Farms had the

burden to show us why this ground could not support the trial court’s decision. Yet, 2L

Farms did not do that. Instead, it noted the rather specific argument in its brief but then

said nothing about it. Simply put, the burden of showing error was not carried.

      Breach of Contract

      Next, 2L Farms contended that the record held some evidence to illustrate that

Crop Quest breached the service contract. We overrule the issue.

      When attempting in its appellant’s brief to illustrate evidence of an actual breach

of the contract, 2L Farms merely stated: “As shown by all foregoing references to the

agreement and actions and inactions of Appellee as set forth herein in discussion of the

breach of warranties. [sic] Appellee breached the contract.” Yet, as we discussed

above, 2L Farms did not establish that the trial court erred in granting summary

judgment upon the claims of breached warranty.          So, since its claim of breached

contract appeared to be based upon the viability of its claims of breached warranties

and the latter were not shown to be viable, we cannot say that 2L Farms illustrated that




                                            10
the trial court erred in entering summary judgment upon the claim of breached contract. 5

        We further note that in moving for summary judgment on the breach of contract

claim, Crop Quest argued the following:

        Texas courts generally do not allow what are truly negligence claims to be
        fractured into claims for breach of contract. [citation omitted] Once a
        professional and client have established a relationship, [‘]the real issue
        remains one of whether the professional exercised that degree of care,
        skill, and diligence that professionals of ordinary skill and knowledge
        commonly possess and exercise.’ [ ] Although more frequently cited in
        legal malpractice cases, improper fracturing has also been cited as a
        basis for limiting claims against other professionals. [citation omitted]
        (accounting firm could only be sued for negligence).

It then concluded by stating:          “Just as any DTPA or fraud claim arising after the

execution of the November 2, 2009 Service Contract is improper, so is any claim

alleging breach of the contract.” This ground for entering summary judgment went

unaddressed by 2L Farms in its appellant’s brief. Given the nature of the summary

judgment order and the trial court’s decision not to specify the particular grounds

underlying its decision, this omission by 2L Farms is another reason for us to conclude

that it did not carry its burden to prove the decision was wrong.

        Fraud Claim

        Next, 2L Farms alleged that the record contained some evidence establishing

each element of fraudulent misrepresentation and fraudulent inducement. We overrule

the issue.

        2L Farms stated that “[t]he contract attached to this brief as Exhibit A-3 clearly

shows that Appellee made representations of the services to be provided by Appellee

and the nature and quality of those services.” It then said that “[f]or each of the reasons

        5
          To the extent that 2L Farms may purport to base its claim for breached contract on something
other than its warranty theory, it was obligated to explain as much to us in its brief. Adequate briefing
requires the provision of argument and authority, not simply conclusions unaccompanied by legal
authority. Cooper v. Cochran, 288 S.W.3d 522, 530-31 (Tex. App.—Dallas 2009, pet. denied).
                                                    11
set above, it is clear that the representations made by Crop Quest were false. Records

and contact were not maintained consistent with providing services to enhance

Appellants’ crop yields.”   Yet, we were cited to (and our own search uncovered) no

evidence from which one could infer that the representations alluded to were false when

made or that Crop Quest lacked knowledge of their truthfulness when made. Such is a

requirement of fraudulent inducement and misrepresentation. See Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001) (stating that a “fraud cause of action requires:

(1) a material misrepresentation, (2) that was either known to be false when made or

was asserted without knowledge of its truth, (3) which was intended to be acted upon,

(4) which was relied upon, and (5) which caused injury”). So, we cannot say that the

trial court erred in rejecting the allegations of fraud based upon what was said in the

contract.

         To the extent that 2L Farms based its claim of fraud upon “specific

representations as to the type and nature of the herbicide which was to be applied to

the Pivot 29 corn” contained in “Crop Quest Field Reports attached as Exhibits 3, 4, 7,

8, and 9 to Appellants’ response to the first motion for summary judgment,” it again fell

short.    The   representations   to   which      it   alluded   were    actually   “Herbicide

Recommendation[s].” To the extent that a “recommendation” can be false, it

nonetheless would have to be false when uttered. Again, we were neither cited to nor

did we find evidence it was false when made or made without knowledge of its

accuracy. The failure to perform a contractual obligation alone is not evidence of fraud.

Southern Union Co. v. City of Edinburg, 129 S.W.3d 74, 92-93 (Tex. 2003). And, 2L

Farms simply attempts to convert purported deficiencies in Crop Quest’s performance of

contractual duties into fraud. It cannot do that on the record at bar.

                                             12
       Professional Malpractice

       Crop Quest also moved, via a separate motion, for summary judgment on 2L

Farms’ allegation of negligence. It contended that there was no expert evidence of the

pertinent standard of care, its breach, or causation between the purported breach of the

standard and 2L Farms’ alleged damages. 2L Farms did and does not question that the

circumstances of this case mandated the use of expert testimony to establish each of

those elements. Instead, it contended that Aljoe’s own testimony provided the requisite

evidence. We overrule the issue for several reasons.

       First, we are cited to no evidence indicating that Aljoe is an expert within the

industry of agronomics or farming and the provision of agronomic or farming services. If

expert testimony is needed, as all seem to acknowledge, then Aljoe must be shown to

be an expert before his deposition excerpts can be used to fill the void.6

       Second, the Aljoe deposition excerpts to which 2L Farms alludes indicate that he

“checked the fields,” the “herbicides listed on Field Reports did not contain Roundup,”

his “inspection indicated the sprayed corn was dead,” he “would not have recommended

spraying Roundup on Pivot 29 if he had known it was white corn,” and he “had

knowledge that Roundup was sprayed on Pivot 29.”                Yet, we are not cited to any

evidence indicating the identity of the field or profession involved; whether it is general

farming, agronomy, herbicides, or the application of herbicides or whatever else goes

unmentioned. Nor are we cited to evidence specifying or explaining the applicable

standard of care related to any of those endeavors, much less how it was breached.

       Simply put, Aljoe’s description of what happened and what he personally would

have done had circumstances been different is not alone expert testimony regarding the
       6
         Indeed, Crop Quest argued that no one designated Aljoe as an expert, that the deadline to
designate experts had expired, and, therefore, his words could not be used as expert testimony.
                                                    13
standard of care mandated by the profession involved. See Warner v. Hurt, 834 S.W.2d

404, 407 (Tex. App.—Houston [14th Dist.] 1992, no writ) (stating what a purported

expert would have done personally is not evidence of the standard of care or its

breach). Given this, we cannot say that 2L Farms established that the trial court erred

in concluding that no evidence supported the claim of negligence.

      Accordingly, we affirm the summary judgments.




                                                      Brian Quinn
                                                      Chief Justice




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