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BOB DIXON AND ADRIENNE DIXON, Appellants, v. ASHLI HERMAN, MATT CYPHERT, AND JH & AH ENTERPRISES, INC., Appellees.

No. 05-09-00544-CV

Fifth Court of Appeals, Dallas Texas

Opinion issued August 5, 2010
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
MEMORANDUM OPINION
Opinion By Justice BRIDGES.
Bob Dixon and Adrienne Dixon appeal the trial court’s summary judgment in favor of Ashli Herman, Matt Cyphert, and JH & AH Enterprises, Inc. In seven issues, the Dixons argue (1) the absence of communications between a buyer and seller does not preclude recovery for breach of contract, breach of warranty, deceptive trade practices, or fraud under Texas law; (2) appellees were not entitled to summary judgment based on a lack of agency or ratification; (3) the “as is” provision in the bill of sale between the parties was unenforceable without evidence that Bob or Adrienne Dixon signed the document; (4) summary judgment was improper on the Dixons’ breach of warranty claim; (5) fact issues preclude summary judgment on damages; and (6) the trial court erred in granting appellees’ traditional motion for summary judgment and rendering a take-nothing judgment on all of the Dixons’ claims. We affirm the trial court’s judgment.
The summary judgment evidence shows Herman purchased a horse, Paramour, in 2002 and kept him at the farm of Matt Cyphert, a professional horseman. Paramour stayed at Cyphert’s farm until 2005, when Herman asked Cyphert to sell Paramour. Cyphert agreed to sell Paramour and to take over the costs and expenses of marketing him. Cyphert had responsibility for deciding how to go about selling Paramour, and the only decision left to Herman under the arrangement was whether to accept an offer below the asking price. At all times, Cyphert had complete control over the means and details of selling Paramour. In early 2006, fellow horse professional Daniel Bedoya said he was looking for consignment horses to take and sell in Indio California during an annual horse show. Cyphert agreed to place Paramour with Bedoya in exchange for a commission from the sale proceeds. Bedoya took possession of Paramour and thereafter controlled the means and details of how he was marketed and sold.
In February 2006, another horseman, John French, approached Adrienne Dixon or one of her trainers, Carrie Atkinson and Benson Carroll, and asked if Adrienne would ride Paramour in competition. French stated Paramour was for sale, and potential buyers could see Adrienne competing with him, maybe resulting in a sale. Bob Dixon understood that no one was interested in buying Paramour for $125,000 at Indio, and French had approached Paramour’s owners and asked to take him to Northern California to try to sell him. French spoke with Carroll and asked if the Dixons would be willing to pay Paramour’s boarding fees in exchange for Adrienne being able to ride him and show him. The Dixons agreed, and Adrienne rode Paramour every day and in “two or three” shows after Indio.
In May 2006, Cyphert decided Paramour should be returned to Texas. Bob learned of this and told either Atkinson or Carroll to talk to French and ask if the owners would be willing to sell Paramour for $100,000. The offer was conveyed to Cyphert, who discussed the offer with Herman. Herman agreed, and Cyphert accepted the offer. Bob called Cyphert for instructions on wiring the money and sent the $100,000. “Several weeks” later, Bob called Cyphert for “paperwork on Paramour, including a Bill of Sale.” The bill of sale listed Paramour’s “Approximate Age” as eleven but also gave his United States Equestrian Federation (USEF) number. Bob’s affidavit states he again called Cyphert to “request the paperwork, including the USEF number and passport, so that we could change the ownership with the USEF.” Bob’s affidavit states that, “upon finally receiving the USEF number, Carrie Atkinson or Adrienne Dixon submitted the necessary information to the USEF to effect the ownership transfer.” According to Bob’s affidavit, the Dixons did not notice that Paramour was thirteen years old until the new USEF certificate arrived.
According to the Dixons’ pleadings, Bob contacted Cyphert about the discrepancy in Paramour’s age, and Cyphert represented that Paramour was eleven years old, and the USEF had made a mistake. Based on Cyphert’s representations, the Dixons continued to show Paramour in equestrian events. However, in October 2006, Bob obtained verification from the Belgium Warmblood Association that Paramour was actually thirteen years old. Bob demanded the return of his $100,000. This demand was refused, and the Dixons filed suit, alleging claims of breach of implied warranty, violation of the DTPA, breach of contract, fraud, fraudulent misrepresentation, and rescission[1]. Appellees filed a traditional motion for summary judgment on the grounds that all of the Dixons’ claims were precluded by the fact that none of the appellees made any representations to the Dixons prior to the purchase of Paramour. The trial court granted appellees’ motion for summary judgment, and this appeal followed.
In their first issue, the Dixons argue the absence of direct communication between the parties before the sale does not negate any element of their claims, and summary judgment was therefore inappropriate on this ground. 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 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). A defendant who moves for summary judgment must show that the plaintiff has no cause of action by either disproving at least one essential element of each theory of recovery or conclusively proving all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).
An element of fraud and fraudulent misrepresentation is that a material representation was made. Tex. Integrated Conveyor Sys, Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 366 (Tex. App.-Dallas 2009, pet. denied) (fraud); Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.-San Antonio 2003, pet. denied) (fraudulent misrepresentation). The elements of a DTPA action are: (1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3) these acts constituted a producing cause of the consumer’s damages. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995).
In his deposition testimony, Bob testified that, prior to his purchase of Paramour, Cyphert and the Hermans did not make any representations to him about Paramour’s age, and the only representation was in the bill of sale. Bob testified he did not have any conversations with Cyphert before he purchased Paramour. When Bob learned “they wanted to bring the horse back to Texas,” he made an offer of $100,000 for the horse. Bob made the offer to either Atkinson or Benson and “told them to talk to French and see if the owners would have an interest in selling [Paramour] at that price.” There is no evidence that, prior to wiring $100,000 to purchase Paramour, Bob or Adrienne asked anyone about Paramour’s medical history or show record. At the time Bob wired the $100,000, Paramour had been in the Dixons’ possession for months, and Adrienne had ridden him every day and participated in multiple horse shows.
The evidence establishes as a matter of law that appellees made no representations concerning Paramour’s age, health, or history prior to the sale. Further, the bill of sale was not discussed prior to the sale and was not a condition for the formation of the contract. See Roach v. Dickenson, 50 S.W.3d 709, 713 (Tex. App.-Eastland 2001, no pet.). The delivery of the bill of sale was not necessary for the Dixons to purchase or own Paramour. See id. A valid contract requires a meeting of the minds, an offer, and an acceptance. Id. The evidence conclusively establishes that the parties formed a contract: the Dixons had the horse, Bob made an offer, Herman accepted, and Bob wired the money, completing the transaction. See id. Appellees did not breach this contract, because the contract was simply for the sale of the horse, and there were no additional terms. See id. Representations in the bill of sale generated “several weeks” later were not part of the contract, and the bill of sale itself was provided only in response to the Dixons’ request for paperwork they could use to register Paramour with the USEF. Accordingly, summary judgment was appropriate on the Dixons’ breach of contract claim, claims under the DTPA, and claims of fraud and fraudulent misrepresentation. See Doe, 907 S.W.2d at 478; Tex. Integrated Conveyor Sys, Inc., 300 S.W.3d at 366; Baribeau, 107 S.W.3d at 58; see also Nixon,690 S.W.2d at 548-49.
The Dixons’ breach of warranty argument focuses on the “as is” provision of the bill of sale. The Dixons argue a buyer is not bound by an agreement to purchase something “as is” that is induced by the seller’s fraudulent misrepresentation or concealment of information, citing Prudential Insurance Co. v. Jefferson Associates, 896 S.W.2d 156 (Tex. 1995). Because we have determined the contract for Paramour’s sale was concluded with no representations by appellees, and the bill of sale was not a part of the contract, we conclude appellees made no warranties, and the “as is” provision in the bill of sale was not necessary to defeat the Dixons’ breach of warranty claims. Accordingly, summary judgment was proper on the Dixons’ breach of warranty claims. See Nixon, 690 S.W.2d at 548-49. Because of our disposition of these issues, we need not further address the Dixons’ issues pertaining to agency, ratification, and damages.
We affirm the trial court’s judgment.