Glenn Rhoades D/B/A Vango Auto Group v. Spencer Prosser

Citation: Not availableDocket: 02-09-00118-CV

Court: Court of Appeals of Texas; May 20, 2010; Texas; State Appellate Court

Original Court Document: View Document

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Glenn Rhoades, representing Vango Auto Group, appeals a summary judgment favoring Spencer Prosser in a fraud case stemming from a vehicle sale. Rhoades argues the judgment lacks evidentiary support, claiming the deemed admissions from Prosser are unverified and thus incompetent as summary judgment evidence. Prosser purchased a vehicle from Rhoades in May 2006, believing its mileage was 77,173, but later discovered it was over 247,986. Prosser sued Rhoades for fraud, revocation of acceptance, and violations of federal statutes, seeking damages and attorney's fees. During discovery, Rhoades did not respond to Prosser's requests for admissions, leading to those requests being deemed admitted. The trial court ruled in Prosser's favor based on these deemed admissions, concluding that he effectively revoked acceptance of the vehicle. The court affirmed the summary judgment, stating that deemed admissions are valid evidence in such cases, and unresponded requests are automatically treated as admissions unless amended. The ruling highlights that judicial admissions, once established, support the case without the need for additional evidence.

An affidavit is defined by statute as a written statement of fact, signed by the affiant, sworn before an authorized officer, and certified under the officer's seal (Tex. Gov’t Code Ann. 312.011(1)). For an affidavit to qualify as summary judgment proof, it must be based on personal knowledge, contain admissible facts, and demonstrate that the affiant is competent to testify on the matters presented. Any referenced documents must be attached or served with the affidavit, and the court may allow supplements through depositions or additional affidavits. Defects in affidavits are not grounds for reversal unless the opposing party specifically objects.

Sworn copies of documents attached to a properly prepared affidavit are considered summary judgment proof. However, unauthenticated or unsworn documents are not valid evidence. In this case, Rhoades argues that the attached requests for admissions lack verification. Nevertheless, these requests were included with Campbell’s affidavit, which is certified by a notary and meets the statutory definition of an affidavit. Campbell’s affidavit details her services related to discovery requests and asserts that true copies are attached. Rhoades's claim that the affidavit does not verify the requests is contradicted by the evidence, as Campbell affirms her personal knowledge regarding the requests. Thus, Campbell's affidavit is deemed competent summary judgment evidence under Tex. R. Civ. P. 166a(f).

The court affirms that the "Request for Admissions" attached to Campbell's affidavit is valid summary judgment evidence supporting Prosser's motion. Rhoades argues on appeal that there is insufficient evidence for crucial elements of Prosser's case, specifically the identity of the vehicle seller, knowledge of the vehicle's mileage, Rhoades' responsibility for the odometer representation, and the mileage on title documents. However, the court finds that deemed admissions and other evidence sufficiently establish these elements. 

Specifically, deemed admission number 4 confirms Rhoades certified the vehicle's mileage as 247,986 at purchase on May 2, 2006. Deemed admission number 6 shows Rhoades also certified the mileage as 77,173 on the same date in a title application. Additionally, Prosser's affidavit presents a "Buyer’s Order" from May 16, 2006, stating the vehicle's mileage was 77,173 when sold to him. 

For Prosser's revocation of acceptance claim, he must demonstrate that he initially accepted the vehicle without discovering the non-conformity due to the seller's assurance, that the non-conformity significantly impaired the vehicle's value, and that revocation occurred in a timely manner before substantial changes in the vehicle's condition. Rhoades did not adequately brief or provide legal authority for the elements of this claim, leading to a waiver of any alleged error regarding the trial court's decision.

Rhoades' point has been overruled, leading to the affirmation of the trial court's judgment. The court awarded Prosser $20,878.74 in actual damages for revocation of acceptance and $11,557.48 in statutory penalties for Rhoades' violation of the Motor Vehicle Information and Cost Savings Act. The trial court found that Prosser effectively revoked acceptance of the vehicle, but Rhoades did not provide any legal authority to contest the elements of the revocation claim or the statutory violation. Summary judgment evidence, including Prosser's affidavit and related documents, supports the claim of revocation. Prosser initially accepted the vehicle based on Rhoades' misrepresentation of its condition and mileage, which was later found to be significantly higher than stated. The discrepancy in mileage impaired the vehicle's value, necessitating repairs exceeding $5,778.74, and the revocation occurred within a reasonable timeframe after Prosser learned of the mileage discrepancy during repairs.