                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-413-CV


KAREN BAGHAEI D/B/A                                            APPELLANT
ARKADIA AUTO SALES

                                       V.

APPONE, INC.                                                     APPELLEE

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      FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                               I. INTRODUCTION

     Appellant Karen Baghaei d/b/a Arkadia Auto Sales appeals from the trial

court’s grant of summary judgment in favor of Appellee AppOne, Inc. In five

issues, Baghaei argues that the trial court improperly granted summary

judgment. We will reverse and remand.




     1
         … See Tex. R. App. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Baghaei sells used cars. AppOne is a Louisiana corporation that facilitates

the acquisition of vehicle financing for Baghaei’s customers. In June 2004,

Baghaei and AppOne (then known as Lazard Group, Inc. d/b/a Sterling Financial)

entered into a “Used Car Dealer Agreement” in which AppOne agreed to

provide or arrange for financing to customers who purchase vehicles from

Baghaei. Baghaei made numerous representations and warranties in the 2004

Dealer Agreement, including that the documents prepared by her for submission

by AppOne to lenders were “full, true, accurate, genuine, [and] complete”; that

she “has independently investigated and verified that all information provided

in the Credit File is full, true, accurate, correct, genuine and complete;” and that

the “Customer has legal capacity to contract and to borrow; all signatures

appearing in the Customer Obligation are authorized and genuine.” Should any

of the representations or warranties be false, Baghaei agreed to pay AppOne

(upon demand) an amount equal to the sum of the outstanding principal, fees,

and financing charges. The 2004 Dealer Agreement also provided that AppOne

had the unilateral right to compel arbitration of certain disputes.        Baghaei

executed a personal guarantee “absolutely and unconditionally guarantee[ing]”

payment of sums due to AppOne under the Dealer Agreement.



                                         2
      In March 2005, Baghaei submitted to AppOne documents relating to the

proposed sale of a 2004 vehicle by Baghaei to an individual purporting to be

Newel Sanders.    The documents contained Sanders’s personal information,

were signed by Sanders, and included a copy of Sanders’s Texas driver’s

license. Hibernia National Bank (now known as Capital One, N.A.) approved

financing for the purchase of the vehicle, and a retail installment contract and

security agreement executed by Sanders for the purchase of the vehicle were

assigned to Hibernia, who loaned funds for the purchase of the vehicle.

      In April 2006, Baghaei and AppOne entered into a new “Used Car Dealer

Agreement.”    With only a few exceptions, the 2006 Dealer Agreement is

substantially similar to the 2004 Dealer Agreement.          The 2006 Dealer

Agreement contains representations and warranties that are substantially similar

to the representations and warranties set forth in the 2004 Dealer Agreement

and permits either party to request arbitration. As she did in 2004, Baghaei

personally guaranteed any sums due under the 2006 Dealer Agreement.

      It was eventually discovered that the individual who signed the

documents submitted by Baghaei for the purchase and financing of the 2004

vehicle was an imposter who had used Newel Sanders’s identity to purchase




                                       3
the vehicle.2 In January 2007, Capital One notified AppOne that AppOne was

in default of their agreement. Capital One also requested a payoff from AppOne

in the amount of $13,607.77. AppOne paid that amount to Capital One in

exchange for an assignment of the installment contract and security agreement

executed by the imposter Sanders.

      In April 2007, AppOne notified Baghaei that it had received an “Affidavit

of Fraud” from Newel Sanders in which he stated that he did not sign the

documents related to the purchase of the 2004 vehicle. AppOne indicated that

Baghaei was in default of the “Used Car Dealer Agreement” for “the breach of

various representations and warranties set forth in” the Dealer Agreement.3

      AppOne later sued Baghaei for breach of the representations and

warranties made in both the 2004 and 2006 Dealer Agreements. 4 It sought

      2
       … The real Newel Sanders executed two affidavits that AppOne included
with its summary judgment evidence: one stating that he did not sign any of
the documents associated with the purchase of the 2004 vehicle and another
containing an attached copy of a completed Uniform Affidavit for Identity Theft.
      3
        … The representations and warranties that AppOne claimed Baghaei had
breached include the following: (1) Baghaei has independently investigated and
verified that all information provided in the “Credit File” is full, true, accurate,
correct, genuine, and complete and (2) the customer has legal capacity to
contract and to borrow, and all signatures appearing in the Customer Obligation
are authorized and genuine.
      4
       … In its second amended original petition, AppOne stated, “Under the
terms and provisions found in both the June 2004 Dealer Agreement and the
April 2006 Dealer Agreement, then, as well as in Defendant’s Personal

                                         4
damages in the amount of $13,607.77, interest, and attorneys’ fees. AppOne

later       filed   a   motion   for   summary   judgment   that—according   to

AppOne—addressed both the claim under the 2004 Dealer Agreement and the

claim under the 2006 Dealer Agreement. Baghaei did not file a response to the

motion for summary judgment. On April 15, 2008, Baghaei filed a motion to

compel arbitration pursuant to the 2006 Dealer Agreement. That same day,

AppOne nonsuited its claim asserted under the 2006 Dealer Agreement. The

trial court subsequently signed an order granting summary judgment in favor of

AppOne on its “2004 Dealer Agreement claim.” 5          The trial court awarded

AppOne $13,607.77, prejudgment interest, and attorneys’ fees.




Guaranty signed in connection with each of those Dealer Agreements,
Defendant is and/or would be liable . . . for breaches of the above-described
representations and warranties.”
        5
       … The trial court also ordered that AppOne’s claim under the 2006
Dealer Agreement is nonsuited and dismissed without prejudice.

                                          5
                                 III. A RBITRATION

      In her first issue, Baghaei argues that the trial court erred and abused its

discretion by failing to refer the case to arbitration.       Baghaei, however,

acknowledges that the 2006 Dealer Agreement is governed by the Federal

Arbitration Act. In Texas, a trial court’s denial of arbitration under the FAA may

be challenged only by mandamus and not by interlocutory appeal. In re D.

Wilson Constr. Co., 196 S.W.3d 774, 779 (Tex. 2006) (orig. proceeding).

Accordingly, Baghaei may not challenge the trial court’s denial of her request

for arbitration in this direct appeal. We overrule Baghaei’s first issue.

                                IV. J URISDICTION

      In her second issue, Baghaei argues that the trial court lacked jurisdiction

to enter the final summary judgment order because (1) the 2006 Dealer

Agreement superseded the 2004 Dealer Agreement, (2) AppOne nonsuited its

claim under the 2006 Dealer Agreement, (3) the 2006 Dealer Agreement

governs all of AppOne’s claims, and (4) AppOne took no action to reinstate its

claim under the 2006 Dealer Agreement. Although we hold below that the

2006 Dealer Agreement superseded the 2004 Dealer Agreement, AppOne

invoked the trial court’s jurisdiction when it filed suit against Baghaei under the

2004 Dealer Agreement, and AppOne’s claim under the 2004 Dealer

Agreement remained pending after it nonsuited its claim under the 2006 Dealer

                                        6
Agreement. We hold that the trial court had jurisdiction over the case when it

signed the final summary judgment order. Cf. Williams v. Nat’l Mortgage Co.,

903 S.W.2d 398, 402 (Tex. App.—Dallas 1995, writ denied) (stating that if an

opposing party has no claim for affirmative relief pending, a trial court’s

jurisdiction over a cause ends when a notice of nonsuit is given for the only

pending claim for affirmative relief). We overrule Baghaei’s second issue.

        V. L EGAL S UFFICIENCY OF A PPO NE’S S UMMARY J UDGMENT P ROOF

      In her third issue, Baghaei challenges the sufficiency of AppOne’s

summary judgment proof. She argues that the trial court erred by granting

summary judgment in favor of AppOne on its claim under the 2004 Dealer

Agreement because the 2006 Dealer Agreement superseded the 2004 Dealer

Agreement.

      Although Baghaei did not file a response to AppOne’s traditional motion

for summary judgment, it is well established that the trial court may not grant

a summary judgment by default for lack of an answer or response to the motion

by the nonmovant unless the movant’s summary judgment proof is legally

sufficient. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999);

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

Summary judgments must stand on their own merits, and the nonmovant’s

failure to answer or respond cannot supply by default the summary judgment

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proof necessary to establish the movant’s right to summary judgment because

deficiencies in the movant’s own proof or legal theories could defeat its right

to judgment as a matter of law. Rhone-Poulenc, 997 S.W.2d at 223; Clear

Creek Basin, 589 S.W.2d at 678; Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d

343, 348 (Tex. App.—Texarkana 1998, no pet.); see Atlantic Mut. Ins. Co.

v.Crow Design Ctrs., 148 S.W.3d 743, 744 (Tex. App.—Dallas 2004, no pet.)

(stating that when the movant does not meet its burden of proof, the burden

does not shift to the nonmovant to come forward with evidence raising a

genuine issue of material fact).   But while the nonmovant need not file an

answer or response to the summary judgment motion, on appeal the nonmovant

may only contend that the movant’s evidence supporting the motion was

insufficient as a matter of law or that the grounds in the motion do not dispose

of all the claims in the case. Rhone-Poulenc, 997 S.W.2d at 223; Clear Creek

Basin, 589 S.W.2d at 678.

      Here, because Baghaei did not file a response to AppOne’s motion for

summary judgment, she is limited to contending that AppOne’s evidence is

insufficient as a matter of law to support the summary judgment.        Indeed,

Baghaei does just this in her third issue, wherein she argues that AppOne’s

summary judgment evidence—which includes both the 2004 Dealer Agreement

and the 2006 Dealer Agreement—shows that the 2006 Dealer Agreement

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superseded and replaced the 2004 Dealer Agreement. According to Baghaei,

because the 2006 Dealer Agreement superseded the 2004 Dealer Agreement,

and because AppOne nonsuited its claim under the 2006 Dealer Agreement,

there was no basis for the trial court to grant AppOne any relief under the

motion for summary judgment.6        Accordingly, we will examine Baghaei’s

argument challenging the legal sufficiency of AppOne’s summary judgment

evidence.

      The general rules of contract construction are well established. Under

Texas law, if there is no ambiguity in a contract, its construction and meaning

become a question of law for the court to determine.          Calpine Producer

Services, L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787 (Tex. App.—Dallas 2005,

no pet.).   Our primary concern when construing a written contract is to

ascertain the true intentions of the parties as expressed in the instrument.

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Heil Co. v. Polar Corp.,

191 S.W.3d 805, 810 (Tex. App.—Fort W orth 2006, pet. denied).               We

examine and consider the entire writing in an effort to harmonize and give


      6
        … AppOne contends that Baghaei is prohibited from arguing that the
2006 Dealer Agreement superseded the 2004 Dealer Agreement because she
failed to plead the affirmative defense of merger and failed to file any response
to the motion for summary judgment. But Baghaei does not challenge the trial
court’s grant of summary judgment on any affirmative defense theory. She
plainly challenges the legal sufficiency of AppOne’s summary judgment proof.

                                       9
effect to all provisions of the contract so that none will be rendered

meaningless. Coker, 650 S.W.2d at 393. We presume that the parties to the

contract intend every clause to have some effect.        Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996); XCO Prod. Co. v. Jamison,

194 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

We give terms their plain, ordinary, and generally accepted meaning unless the

contract shows that the parties used them in a technical or different sense.

Heritage Res., 939 S.W.2d at 121. The intent of the parties must be taken

from the contract itself, not from the parties’ present interpretation, and the

contract must be enforced as written. Calpine Producer Services, L.P., 169

S.W.3d at 787. The existence of a valid contract is an essential element of a

breach of contract claim. See, e.g., Winchek v. Am. Express Travel Related

Services Co., Inc., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.]

2007, no pet.).

      In the present case, under the subheading, “Effective Date,” the 2004

Dealer Agreement provides in part that the Agreement “is deemed to be

effective as of the date first written above.” The “date first written above” is

June 14, 2004. Like the 2004 Dealer Agreement, the 2006 Dealer Agreement

is “deemed to be effective as of the date first written above,” which is April 7,



                                       10
2006. Under the subheading, “Entire Agreement,” the 2006 Dealer Agreement

states as follows:

      This Agreement, together with any Exhibits hereto and such Dealer
      Updates and letters as are from time to time provided, shall
      constitute the complete agreement and understanding of the parties
      concerning the subject matter and supersedes all previous
      agreements and understandings relating to the subject matter. The
      Agreement can only be amended by written agreement between
      Dealer and AppOne or by Dealer Updates as set forth in Section 3
      herein. [Emphasis added.]

The   2006     Dealer   Agreement     also   specifically   provides   that   “[a]ll

representations, warranties, and promises contained herein are expressly

understood as applying to all Vehicles and/or Contracts which presently have

been purchased or which are to be purchased in the future pursuant to this

Agreement.” [Emphasis added.]

      The relevant language of the 2006 Dealer Agreement demonstrates that

the 2006 Dealer Agreement superseded the 2004 Dealer Agreement. AppOne,

however, nonsuited its claim against Baghaei under the 2006 Dealer

Agreement, which left pending only its claim under the 2004 Dealer

Agreement.7 Because the trial court granted summary judgment in favor of


      7
        … In a brief filed with the trial court, AppOne stated that after nonsuiting
its claim under the 2006 Dealer Agreement, its claim under the 2004 Dealer
Agreement “remained pending before the Court.” AppOne acknowledged that
“Plaintiff’s Motion for Summary Judgment on the 2004 Dealer Agreement claim
is before the Court.”

                                        11
AppOne on its “2004 Dealer Agreement claim,” the trial court granted summary

judgment in favor of AppOne on a claim that is based on a superseded contract.

It was error for the trial court to grant summary judgment in favor of AppOne

on a claim based upon a superseded, invalid contract unless AppOne is

somehow entitled to relief under the 2004 Dealer Agreement, as AppOne

argues.   See Winchek, 232 S.W.3d at 202; Dallas Farm Machinery Co. v.

Minneapolis-Moline Co., 324 S.W.2d 578, 580 (Tex. Civ. App.—Dallas 1959,

no writ) (reasoning that second contract superseded first contract and stating

that a contract that expressly cancels a prior contract is to be regarded as

independent thereof, not as a continuation of the prior contract).

      AppOne states that its claim against Baghaei is based upon “various

representations and warranties concerning a transaction which occurred in

2005.” It argues that the trial court appropriately granted summary judgment

on the 2004 Dealer Agreement claim because the representations and

warranties upon which AppOne sued were allegedly breached before the 2006

Dealer Agreement’s effective date. We disagree, however, because although

the 2006 Dealer Agreement became effective in April 2006, it specifically

states that all representations and warranties contained therein are expressly

understood by the parties to apply to all vehicles, contracts, or both that

presently have been purchased.     On the effective date of the 2006 Dealer

                                      12
Agreement, the transaction between Baghaei and AppOne on behalf of the

imposter Sanders involved a vehicle, contract, or both that had been purchased.

Thus, the unambiguous language of the 2006 Dealer Agreement makes clear

that the representations and warranties set forth in the 2006 Dealer Agreement

cover    AppOne’s    claims   regarding    the   alleged   breach   of   contractual

representations and warranties that occurred in 2005.

        Further, because the 2006 Dealer Agreement superseded the 2004 Dealer

Agreement, the remedies available to AppOne in the 2006 Dealer Agreement

superseded the remedies available to AppOne in the 2004 Dealer Agreement.

On April 10, 2007, approximately one year after the 2006 Dealer Agreement

became effective, AppOne notified Baghaei that she was in default of the “Used

Car Dealer Agreement” and demanded that Baghaei pay $13,607.77. The only

Dealer Agreement in effect in April 2007—when AppOne initiated remedial

procedures for Baghaei’s alleged breach of contract—was the 2006 Dealer

Agreement. AppOne’s remedies against Baghaei are accordingly governed by

the 2006 Dealer Agreement.




                                          13
      AppOne additionally argues that the representations and warranties in the

2004 Dealer Agreement survived “any termination of the 2004 Agreement.” 8

AppOne is referring to the following provision in the 2004 Dealer Agreement:

“Each of the foregoing representations and warranties . . . shall survive the

execution and delivery of this Agreement and the execution and delivery of the

Contract documents[] and shall continue in full force and effect until all terms

and provisions of the Contract have been fully performed.” This language does

not support AppOne’s argument. It simply provides that the representations

and warranties set forth in the Dealer Agreement remain enforceable even after

AppOne has performed its contractual obligation of providing or arranging for

financing to customers who purchase vehicles from Baghaei. This language is

not relevant to the issue of whether AppOne is entitled to relief on its claim

under the 2004 Dealer Agreement.

      AppOne further directs us to a provision in the 2006 Dealer Agreement

that states, “AppOne is willing to review credit applications received from time

to time from prospective Customers of Dealer who wish to purchase new and

used automobiles . . . from Dealer using financing to be provided by


      8
      … AppOne specifically contends, “Even assuming hypothetically that
some aspect of the 2004 Agreement was allegedly terminated in some way in
2006, the provisions in the 2004 Agreement concerning representations and
warranties would survive, would remain in effect[,] and would be enforceable.”

                                      14
Lender . . . .” [Emphasis added.]         AppOne argues that this language

demonstrates that the representations and warranties in the 2006 Dealer

Agreement apply only to future customers, not to past customers, including the

imposter Sanders. Although we agree that the italicized language refers to

future customers and future financing, we disagree that this language supports

AppOne’s position. The language merely addresses AppOne’s obligation under

the contract to review credit applications.   The individuals who submit the

applications are “prospective” customers because they have yet to purchase

the vehicle from the dealer; hence the application for vehicle financing.

Moreover, that the 2006 Dealer Agreement uses a number of terms in the

future tense does not ipso facto suggest that the Agreement only applies post-

April 2006, as AppOne seems to claim.

      The sole dispute in AppOne’s suit against Baghaei is based on a contract

that has not been in effect since immediately before the 2006 Dealer

Agreement became effective on April 7, 2006. AppOne’s summary judgment

evidence fails to demonstrate that AppOne was entitled to judgment as a

matter of law. See Rhone-Poulenc, 997 S.W.2d at 223; Clear Creek Basin, 589

S.W.2d at 678.    We hold that the trial court erred by granting summary

judgment in favor of AppOne on the basis of an invalid, superseded contract.

Accordingly, we sustain Baghaei’s third issue.

                                     15
     Having sustained Baghaei’s third issue, we need not consider her fourth

and fifth issues, in which Baghaei complains that the trial court erred by

prohibiting her from amending her pleadings in response to AppOne’s partial

nonsuit and by granting the summary judgment without considering mitigating

evidence. See Tex. R. App. P. 47.1.

                              VI. C ONCLUSION

     Having sustained Baghaei’s third issue, we reverse the trial court’s order

granting summary judgment in favor of AppOne and remand the case for further

proceedings.




                                                BILL MEIER
                                                JUSTICE

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

DELIVERED: July 9, 2009




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