author: Justice LANG.

text:
    Martha BURKE, Appellant v. INSURANCE AUTO AUCTIONS CORP. a/k/a Insurance Auto Auction, Appellee.
    No. 05-04-01608-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2005.

      E. Todd Tracy, Tracy & Carboy, Dallas, for Appellant.
    Kirk Willis, Godwin, Gruber. LLP, Dallas, for Appellee.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice LANG.

Martha Burke, plaintiff below, appeals the trial court’s final summary judgment dismissing her claims against Insurance Auto Auctions Corp. a/k/a Insurance Auto Auction. On appeal, Burke argues the trial court erred when it granted summary judgment in favor of IAA concluding, as a matter of law, she failed to file her claims for negligence, tortious interference with a contract, and fraud before the two-year statute of limitations expired.

In three issues, Burke contends the trial court used the incorrect accrual date for measuring whether the statute of limitations had run on her causes of action against IAA because: (1) the legal injury rule does not apply until all necessary elements of her cause of action are “realized”; and (2) the accrual date for her causes of action did not begin until the summary judgment in favor of General Motors Corporation was granted.

We decide Burke’s three issues against her. The trial court’s final summary judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Burke was involved in an automobile accident on September 7, 1999. When Burke’s Chevrolet Geo Tracker was struck, the airbag failed to deploy. The impact caused Burke’s vehicle to rotate and her head hit the unpadded B-Pillar resulting in a severe brain injury.

Burke’s attorney purchased her Tracker from USAA Insurance on November 12, 1999. The Tracker was stored by IAA in its immediate post-crash condition as evidence for Burke’s product liability case. In August 2000, when Burke’s attorney secured actual possession of the Tracker, these components were missing or displaced from their design positions: (1) the driver’s A pillar trim and visor; (2) the driver’s front and rear doors were removed and were missing; (3) the left Es-pillar, including much of the door sills and roof rail, was missing; (4) the driver’s seat was missing; (5) the 3-point restraint system was missing; (6) the left side grab handle was missing; and (7) the driver’s SRS and SDM were missing. On September 28, 2000, Burke’s attorney wrote to USAA complaining that the Tracker had been “cannibalized” and that portions of the vehicle were missing.

On July 5, 2001, Burke sued General Motors Corporation for product liability in the district court. The district court granted summary judgment in favor of General Motors dismissing Burke’s suit on October 14, 2002. In its order, the district court concluded that General Motors’ motion for summary judgment must be granted because the components or structures of the Tracker were missing or destroyed.

On October 21, 2002, Burke sued IAA in the county court, but she nonsuited on July 16, 2003. On July 18, 2003, Burke sued USAA and IAA in the county court alleging negligence, tortious interference with a contract, and conversion. In IAA’s answer to Burke’s lawsuit, it asserted the affirmative defense that Burke’s claims were barred by the two-year statute of limitations.

IAA moved for traditional summary judgment seeking judgment, as a matter of law, on its affirmative defense claiming Burke failed to file her lawsuit within the two-year statute of limitations. Burke did not file a response to IAA’s first motion for summary judgment. The trial court granted IAA’s first motion for summary judgment dismissing Burke’s claims for negligence, tortious interference with a contract, and conversion.

However, before the trial court ruled on IAA’s first motion for summary judgment, Burke filed amended petitions, which added claims for breach of contract and fraud, and dismissed USAA from the lawsuit. As a result, IAA filed its second motion for summary judgment on Burke’s breach of contract and fraud claims. Burke did not file a response to IAA’s second motion for summary judgment, but Burke again amended her petition to add a claim for breach of a third-party beneficiary contract.

IAA filed its third motion for no-evidence summary judgment on Burke’s claims for breach of contract, fraud, and breach of a third-party beneficiary contract. Burke filed a response to IAA’s no-evidence motion for summary judgment arguing that her claims were viable. The trial court granted IAA’s third motion for summary judgment and issued its final summary judgment dismissing Burke’s lawsuit in its entirety.

II. WAIVER FOR FAILURE TO ADEQUATELY BRIEF

IAA contends that Burke has waived her issues on appeal because she fails to support her issues or argument with citations to the record. Also, IAA contends that Burke cites to documents contained in her appendices, regarding which the trial court sustained IAA’s hearsay objections.

Texas Rule of Appellate Procedure 88.1(f) requires appellate briefs to contain a statement of facts that is supported by record references. See Tex. R.App. P. 38.1(f). Also, Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(h); Adams v. First National Bank Bells/Savoy, 154 S.W.3d 859, 872 (Tex.App.-Dallas 2005, no pet.). Appellate courts must construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); see Tex.R.App. P. 38.9; Frazin v. Hanley, 130 S.W.3d 373, 377 (Tex.App.-Dallas 2004, no pet.). However, an appellate court cannot consider documents or hearings that are cited in the brief and attached as appendices if they are not formally included in the record on appeal. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.).

Although she fails to cite to the record, Burke does provide argument and appropriate citations to authorities to support her contentions. See Frazin, 130 S.W.3d at 377. On the other hand, throughout her brief, Burke cites to documents in her appendices, which were excluded by the trial court when it sustained IAA’s objections. We cannot consider those documents that are not properly included in the appellate record or before this Court. See Green, 152 S.W.3d at 841. However, we conclude that Burke has not waived her issues. We decide against IAA on that point and we will address Burke’s issues on appeal.

III. STATUTE OF LIMITATIONS

In her first through third issues on appeal, Burke argues the trial court erred when it granted summary judgment in favor of IAA concluding, as a matter of law, that she failed to file her claims for negligence, tortious interference with a contract, and fraud before the two-year statute of limitations had expired.

A. Standard of Review

The standard for reviewing a traditional summary judgment granted on the ground that the statute of limitations has expired is well established. Min v. Avila, 991 S.W.2d 495, 504 (Tex.App.-Houston [1st Dist.] 1999, no pet.)(citing see Burns v. Thomas, 786 S.W.2d 266, 266 (Tex.1990)). An appellate court reviews a traditional summary judgment granted because the statute of limitations has expired to determine whether there is an issue of material fact regarding when the limitations time period began to run. Clark v. Snider, 738 S.W.2d 49, 51 (Tex.App.-Texarkana 1987, no writXper curiam). When reviewing the record in an appeal involving a traditional summary judgment, the reviewing court must: (1) place the burden of showing that there is no genuine issue of material fact on the party that moved for traditional summary judgment; (2) take all evidence favorable to the nonmovant as true; and (3) indulge every reasonable inference and resolve all doubts in favor of the nonmov-ing party. Eg. M.D. Anderson Hosp. & Tumor Institute v. Willrich, 28 S.W.3d 22, 23-24 (Tex.2000); see also Eiland v. Turpin, Smith, Dyer, Saxe & McDonald, 64 S.W.3d 155, 158 (Tex.App.-El Paso 2001, no pet.).

B. Applicable Law

A person must bring suit for negligence no later than two years after the cause of action accrues. Waxler v. Household Credit Services, Inc., 106 S.W.3d 277, 279 (Tex.App.-Dallas 2003, no pet.); see Tex. Crv. PRac. & Rem.Code ANN. § 16.003(a) (Vernon 2002 & Supp.2004-05). The two-year statute of limitations also applies to claims for tortious interference with a contract. Arabian Shield Development Co. v. Hunt, 808 S.W.2d 577, 583 (Tex.App.-Dallas 1991, writ denied); see Tex. Civ. PRAC. & Rem.Code Ann. § 16.003(a).

The statute of limitations begins to run when the cause of action accrues. Tex. Civ. Peac. & Rem.Code Ann. § 16.003(a); see also Waxler, 106 S.W.3d at 279; Arabian Shield, 808 S.W.2d at 583. The determination of when a cause of action accrues is a question of law. Waxier, 106 S.W.3d at 279. Because the statute setting the limitations period does not define or specify when accrual occurs, courts look to the common law to determine when a cause of action accrues. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex.1999); Waxier, 106 S.W.3d at 279.

As a general rule, when the elements of duty, breach, and resulting injury or damage are present, a tort action accrues. Then, the statute of limitations begins to run. Waxier, 106 S.W.3d at 280. A cause of action in tort generally accrues when the tort occurs, but a legal injury must be sustained before a cause of action arises. See Waxler, 106 S.W.3d at 280.

The first step in ascertaining when the statute of limitations begins to run in a tort action is to determine whether the act causing the damage constitutes a legal injury. See Waxler, 106 S.W.3d at 280. If the act complained of constitutes a legal injury to a plaintiff, the wrong is completed and the cause of action accrues from the time the act is committed, even where little, if any, actual damage occurs immediately on commission of the tort. See Waxier, 106 S.W.3d at 280. Conversely, if the act complained of does not, by itself, constitute a legal injury, the cause of action accrues when, and only when, the damages are sustained. See Waxler, 106 S.W.3d at 280.

C. Application of the Law to the Facts

In her three issues, Burke contends the trial court used the incorrect accrual date for measuring whether the statute of limitations had run for her causes of action against IAA because: (1) the legal injury rule does not apply until all necessary elements of her cause of action are “realized”; and (2) the accrual date for her causes of action did not begin until the summary judgment in favor of General Motors Corporation was granted. IAA responds that the legal injury rule applies for determining the accrual date because Burke does not argue that her claims were inherently undiscoverable.

First, we address Burke’s argument that the legal injury rule does not apply until all necessary elements of her cause of action are, what she refers to as, “realized.” In support of this position, Burke argues on appeal that this Court’s decision in Waxier defers accrual of a cause of action and the running of the statute of limitations does not commence to run until all elements of a cause of action are “completed.” See Waxler, 106 S.W.3d at 280. Using that interpretation of Waxier, she asserts that the statute of limitations did not commence running when the Tracker was cannibalized and she sustained a legal injury. See id. Rather, Burke contends her injury accrued when her damages were “realized”; that is, when the district court granted summary judgment in favor of General Motors on October 14, 2002.

In Waxier, the holder of a credit card made a payment on her account by a personal check. Waxler, 106 S.W.3d at 278. The credit service incorrectly encoded the check for a smaller dollar amount. Waxier contacted the credit service when she discovered the discrepancy and her bank credited the additional amount to the credit service. Id. at 278. Despite the fact that Waxier corrected the discrepancy, the credit service notified Waxier that she was delinquent and demanded payment. Id. Even though the credit service admitted it had made an error, it issued negative credit reports for five months on Waxler’s creditworthiness. Id. at 279. Then, the credit service issued a negative credit report stating Waxier had an unpaid bill that had been charged off as a bad debt. Id. Subsequently, Waxier applied for a credit card and was denied credit based on the credit service’s negative credit reports. Id. It does not appear Waxier was aware of the filings of the negative credit reports until after she was denied credit. The trial court granted summary judgment in favor of the credit service finding that Waxler’s claims were barred by the two-year statute of limitations. Id. at 280. On appeal, this Court concluded Waxler’s cause of action did not accrue until she was denied credit based on the credit service’s negative credit reports. Id. at 285.

Burke’s reliance on Waxier is misplaced. In Waxier, the credit service’s negative credit reports were not, themselves, unlawful, so the cause of action accrued under the legal injury rule when, and only when, she was denied credit and the damages were sustained. See id. at 281.

We review Burke’s points on appeal to determine if the trial court properly applied the legal injury rule because Burke does not argue that she raised a genuine issue of material fact regarding when the limitations time period began to run. See Clark, 738 S.W.2d at 51. The record reflects Burke’s attorney became aware of a potential problem with her products liability suit against General Motors, when her attorney inspected the Tracker in August 2000 and found the vehicle had been cannibalized. Appellant became aware of her legal injury through her attorney because knowledge acquired by or notice to an attorney during the existence of the attorney-client relationship, and while the attorney is acting within the scope of his authority, is imputed to the client. Lehrer v. Zwernemann, 14 S.W.3d 775, 778 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). IAA’s cannibalization of the Tracker, was in itself, a legal injury to Burke’s product liability claims against General Motors. Hence, Burke’s causes of action against IAA accrued from the time the Tracker was cannibalized, regardless of whether little, if any, actual damages had occurred. See id. at 280.

IV. CONCLUSION

We conclude that the trial court did not err when it granted summary judgment in favor of IAA concluding, as a matter of law, that Burke failed to file her claims of negligence, tortious interference with a contract, and fraud before the two-year statute of limitations expired. Burke’s first through third issues are decided against her.

The trial court’s final summary judgment is affirmed.

      .Burke sued General Motors Corporation in the 271st Judicial District Court, Wise County, Texas, in a case styled, Burke v. General Motors Corporation and James Wood Motors, No. 01-07-438.

      . The record does not show that there was a hearing or contain an order on IAA’s second motion for summary judgment.

      . Burke does not appeal the trial court's ruling on IAA’s hearsay objections to those documents.

      . IAA contends that it moved for and the trial court granted a no-evidence summary judgment on Burke's fraud claim, not a traditional summary judgment based on its affirmative defense that her claims were barred by the statute of limitations. The record does not show that the trial court was asked to rule, nor did it rule on whether Burke’s fraud claim was barred by the statute of limitations. Rather, the record shows that the trial court granted IAA’s first motion for summary judgment concluding, as a matter of law, Burke failed to file her claims of negligence, tortious interference with a contract, and conversion within the two-year statute of limitations. Also, the record shows that the trial court granted IAA’s third motion for summary judgment concluding that there was no evidence to support Burke's claims of breach of contract, fraud, and breach of a third-party beneficiary contract. Accordingly, we do not address those aspects of Burke’s three issues which address whether her fraud claim was barred by the statute of limitations.

      . Burke does not appeal the following: (1) the trial court’s traditional summary judgment dismissing her claim for conversion because the statute of limitations had expired; or (2) the trial court’s no-evidence summary judgment dismissing her claims for breach of contract, fraud, and breach of a third-party beneficiary contract.

      . Also, Burke does not argue on appeal and she did not plead or raise before to the trial court an exception to the legal injury rule.


source: Caselaw Access Project

author: Justice FITZGERALD.

license: Public Domain

text:
    Renee COX, Appellant v. NEXTIRAONE, Appellee.
    No. 05-04-01149-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2005.

      John E. Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, for Appellant.
    Russell Daniel Caywer, Kelly, Hart & Hallman, P.C., Fort Worth, for Appellee.
    Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
   OPINION

Opinion by

Justice FITZGERALD.

Renee Cox sued her former employer, appellee NextiraOne, for retaliatory discharge, alleging that NextiraOne fired her because she filed a workers’ compensation claim. The trial court granted summary judgment in favor of NextiraOne, and Cox appeals. We affirm the trial court’s order.

Background

NextiraOne is a telecommunication company that provides communication networking packages for businesses. Cox worked for NextiraOne and its predecessor companies beginning in May 1981. Over the ensuing years, Cox held a variety of positions for the company and in 2000, she was a District Service Manager (“DSM”). Tom Corathers supervised Cox at all relevant times except for a period of about one year during 2001.

In May of 2000, Cox filed a workers’ compensation claim after she experienced symptoms of carpal tunnel syndrome. Cox attended doctor appointments during this time, but she never missed a full day of work because of the injury. On several occasions, Cox and Corathers conversed about her injury, either directly or indirectly.

In 2000, the telecommunications industry experienced a significant downturn. NextiraOne initiated an ongoing reduction in force (“RIF”) as a result of the downturn. Overall, the company laid off more than 2000 employees between 2000 and the end of 2002. On June 28, 2002, Cox was laid off. Cox filed suit against NextiraOne for violation of section 451 of the Texas Labor Code.

NextiraOne filed a combined traditional and no-evidence motion for summary judgment. The no-evidence portion of the motion challenged Cox to come forward with evidence raising a fact issue on the two issues for which she carried the burden of proof: (1) establishing a causal connection between her workers’ compensation claim and her layoff, and (2) showing Nexti-raOne’s stated reason for discharging Cox was a pretext. The traditional portion of the motion argued that NextiraOne’s own summary judgment evidence negated Cox’s ability to prove these two elements. In support of the motion, Corathers testified that he was instructed to identify one of the six DSMs he supervised for the June 28 layoff. He eliminated some of the six for reasons related to geography and special skills. Of the three remaining, he ranked Cox last in terms of job performance. He testified that at the time he made the decision to lay off Cox, he did not recall that she had filed a workers’ compensation claim two years earlier. NextiraOne also offered summary judgment evidence concerning the timing and extent of the ongoing RIF.

Cox responded to the summary judgment with her own affidavit and its attachments. Cox argues this evidence shows her performance did not merit termination. She concludes she must have been laid off because of her workers’ compensation claim.

The trial court granted NextiraOne’s motion without specifying a particular ground. Cox appeals.

Summary Judgment Standards

NextiraOne’s motion for summary judgment included traditional grounds and no-evidence grounds; we review both types of motion under well-settled standards. In a traditional motion, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A traditional movant has the burden of proving all essential elements of its cause of action or defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). If the nonmovant fails to do so, the trial judge must grant the motion. Id.

We uphold a summary judgment on any ground supported by the evidence and pleadings. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Retaliatory Discharge

Section 451.001 of the Texas Labor Code prohibits an employer from discharging an employee for filing a workers’ compensation claim in good faith. Tex. Lab.Code ÁNN. § 451.001 (Vernon 1996). The employee has the initial burden of demonstrating a causal link between the discharge and the filing of a workers’ compensation claim. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex.App.-Dallas 2004, no pet.). The employee need not show she was fired solely because of fifing the workers’ compensation claim. Rather, she must show that “but for” the filing of the claim, the discharge would not have occurred when it did. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 & n.3 (Tex. 1996). The employee may establish the link between her termination and the fifing of her workers’ compensation claim through circumstantial evidence or through reasonable inferences from the evidence. Id. at 451; Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 196 (Tex. App.-Dallas 2004, pet. denied).

Once the causal fink between the employee’s workers’ compensation claim and the employer’s alleged retaliation is established, it becomes the employer’s burden to rebut the allegation by showing a legitimate reason for the discharge. Cazarez, 937 S.W.2d at 451. Thereafter, the burden shifts back to the employee. To defeat a motion for summary judgment, the employee must (a) challenge the employer’s proof that the reason given for the discharge was a legitimate, nondiscriminatory reason, or (b) present evidence raising a fact issue on whether the reason given for termination was a pretext for the discrimination. See Benners, 133 S.W.3d at 369.

Pretext

NextiraOne’s motion for summary judgment asserted, inter alia, that Cox had no evidence NextiraOne’s stated reason for laying her off was a pretext. Cox’s first issue on appeal challenges the trial court’s granting of summary judgment on this ground, arguing there are genuine issues of material fact regarding the truth of NextiraOne’s stated reason for terminating Cox’s employment. We conclude there are no such fact issues.

NextiraOne attributed Cox’s discharge to the company’s ongoing RIF. A RIF is a legitimate, nondiscriminatory reason for terminating an employee. Benners, 133 S.W.3d at 370 (citing Anderson v. Taylor Publ’g Co., 13 S.W.3d 56, 59 (Tex. App.-Dallas 2000, pet. denied)). NextiraOne presented summary judgment evidence of a company-wide RIF that began in 2000 and continued at least through 2002. According to NextiraOne’s evidence, on March 1, 2001, NextiraOne had 5482 employees. In 2001, the company laid off 813 of those employees, and in 2002, it laid off 1186 more. Over this two-year period, thus, NextiraOne’s RIF claimed approximately 36% of its workforce. During the specific six-week period when Cox was terminated, NextiraOne laid off 335 employees, including 23 DSMs. Cox’s summary judgment response does not challenge any of these numbers, nor does she challenge the legitimate economic basis for the company’s RIF.

Cox does challenge the specific reasons NextiraOne proffered for including Cox within the more than 2000 employees laid off during this time period. Cox testifies that she had never received a bad performance evaluation and asserts that she carried more responsibility than any other DSM. She offers appreciative e-mails from a client. She quotes positive letters of recommendation from superiors, including one from Corathers himself. And she purports to identify mistakes in the statistics relied upon by Corathers to rank her performance lower than that of her colleagues. In essence, Cox argues she was a good employee and that she had not been made aware of any concerns expressed by Corathers until long after her termination. She attempts to put Corather’s credibility at issue by challenging his assertion that he did not recall Cox had filed a workers’ compensation claim at the time he made the decision to include her in the RIF.

We view all this evidence in the light most favorable to Cox. See Gen. Mills, 12 S.W.3d at 833. However, it is not sufficient for Cox to show that she was a good employee. Indeed, Corathers never testified that Cox was not a good employee: he testified only that he ranked her third among the DSMs he considered laying off. What Cox must offer to avoid summary judgment is more than a scintilla of evidence that the true reason she was fired was her filing the workers’ compensation claim. See Benners, 133 S.W.3d at 369. Cox has offered no evidence that Corath-ers or any other supervisor ever expressed animosity toward her because of her compensation claim. She has offered no evidence showing that compensation claimants were targeted for the RIF or that the RIF was not applied neutrally. Indeed, we find no evidence beyond Cox’s own personal belief that she was included in the RIF because she filed a workers’ compensation claim. Cox’s subjective belief regarding the reason for her discharge is a mere conclusion and is not competent summary judgment evidence. See Lee, 129 S.W.3d at 197 (citing Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex.1994) (per curiam)).

The circumstances of NextiraOne’s RIF support our conclusion. The RIF lasted at least three years. During this period, more than a third of the company’s employees lost their jobs. Cox kept her position until at least the third significant wave of layoffs, more than two years after she filed her claim. These facts belie Cox’s claims of retaliation. Certainly if this employer had been anxious to dismiss Cox, it could have done so using the excuse of the RIF long before. We conclude there is not a scintilla of evidence that Nexti-raOne’s proffered reason for Cox’s termination was a pretext and that she was actually discharged because she filed a workers’ compensation claim. Accordingly, we conclude the trial court properly granted summary judgment on this ground, and we decide Cox’s first issue against her.

Conclusion

The trial court properly granted summary judgment on the ground that there was no evidence NextiraOne’s stated reason for Cox’s discharge was a pretext. Because we have affirmed the trial court’s order on that ground, we need not address Cox’s remaining two issues. See Carr, 776 S.W.2d at 569.

      . For example, Cox asserts she spoke to Cor-athers concerning scheduling doctors’ appointments and how to account to the company for the time she was away. The two also spoke once about a prescription Cox took for the condition. Cox also testified that she regularly wore wrist splints at work, which Cor-athers must have seen.

      . The attachments include: client e-mails; excerpts and exhibits from Cox's deposition; NextiraOne’s answers to Cox’s interrogatories; three letters stating the reason for Cox’s termination, two of which recommend her for future employment; and a series of internal reports and communications related to Cox's workers’ compensation claim and certain job performance issues.

      . No specific numbers of layoffs are provided for calendar year 2000. Corathers’s affidavit states only that NextiraOne’s predecessor company (for which he and Cox worked at the time) “laid off a large number of employees” in 2000.

      . The records also show that three Dallas-based DSMs had been laid off the year before Cox was terminated. None of those three DSMs had filed a workers' compensation claim during their employment with Nexti-raOne.

      . Cox's evidence in this regard is related to his knowledge of the claim at various points in time.

      . Cox relies on errors in various reports to show that she should not have been ranked as she was. However, even if Corathers relied on incorrect information in making his decision, his decision still had nothing to do with Cox’s workers’ compensation claim. There is no evidence that any errors, or Corathers’s reliance on them, were rooted in malice toward Cox. On the contrary, Cox’s own summary judgment evidence shows an attempt by Corathers to correct an erroneous report brought to his attention by Cox.


text:
    CALPINE PRODUCER SERVICES, L.P., Appellant v. The WISER OIL COMPANY, Appellee.
    No. 05-04-01025-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2005.

      J. Robert Beatty and Cynthia Keely Timms, Locke, Liddell & Sapp, L.L.P., Dallas, for Appellant.
    D. Ronald Reneker, John L. Thompson, Craddock, Reneker, Davis LLP, and Craig A. Haynes, Thompson & Knight, P.C., Dallas, for Appellee.
    Before Justices WRIGHT, MOSELEY and LANG.
   OPINION

Opinion by

Justice LANG.

Calpine appeals a summary judgment awarding Wiser damages for natural gas purchased by Calpine under a “Gas Sales and Purchase Agreement.” Pursuant to the agreement, Calpine purchased natural gas, “from time-to-time,” from Wiser, the producer. Then, Calpine resold the natural gas. The trial court’s decision assessing liability and damages was on consideration of cross motions for summary judgment, with many facts being stipulated. The parties agree that the agreement is unambiguous.

In two issues, Calpine asserts that the trial court erred in deciding against Cal-pine and in favor of Wiser. We decide in Calpine’s favor on both issues. Therefore, we reverse and render judgment that Wiser take nothing on its claim against Cal-pine.

I. Factual Context and Procedural History

The subject of this action is the interpretation of a “Gas Sales and Purchase Agreement” dated September 1, 1997, between Wiser, as Seller, and Calpine, then known as Highland Energy Company, as Buyer. Pursuant to the agreement, Calpine purchased natural gas from Wiser during November 2001, and resold the gas to Enron, pursuant to a separate resale contract. It is undisputed that pursuant to the terms of the resale contract between Enron and Calpine, Enron was obligated to pay Cal-pine $732,906.39 ($727,161.81 of which was payable to Wiser) for the Wiser gas, on or before December 26, 2001. In early December 2001, Enron filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code and did not pay for the gas as provided in its resale contract with Calpine.

Since Calpine failed to pay Wiser for the gas, Wiser sued Calpine on March 28, 2002, seeking recovery of the full purchase price of the gas based on Calpine’s alleged breach of the agreement. Calpine answered the suit, asserting failure of a condition precedent as an affirmative defense.

During the pendency of this action, Cal-pine filed a proof of claim in the Enron bankruptcy making claims for sums due regarding gas resold to Enron by Calpine for Wiser and other companies. Calpine’s proof of claim against Enron was settled and Calpine was paid a portion of its claim. Then, Calpine paid Wiser $254,495.49 for the Wiser gas. This $254,495.49 was equal to 61.45% of Calpine’s total recovery from Enron, which, according to Calpine, represented Wiser’s proportionate share of Cal-pine’s claim against Enron. Wiser now claims that Calpine owes the remaining balance of the original amount due under the agreement.

Both Calpine and Wiser moved for summary judgment based on the gas purchase agreement’s unambiguous language. Cal-pine’s motion for summary judgment was granted, in part, and Wiser’s was denied.

Then, the trial court granted Wiser’s motion for reconsideration and vacated the partial summary judgment in favor of Cal-pine. The parties filed stipulations concerning certain facts and renewed their motions for summary judgment. At that point, the trial court granted Wiser’s motion for summary judgment, denied Cal-pine’s motion, and entered judgment for Wiser. Calpine timely filed its notice of appeal.

The basic relationship between Calpine and Wiser is outlined in the recitals and paragraph 2.1:

WHEREAS, Seller owns or controls certain natural gas production from properties in which it owns an interest and which are more particularly described herein.
WHEREAS, Seller may have available for sale volumes of said natural gas production from time-to-time; and WHEREAS, Buyer may have markets for and may desire to purchase all or a portion of said production from time-to-time subject to the provisions of this Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, Seller and Buyer do hereby covenant and agree as follows:
2.1 Subject to the other provisions hereof, Seller commits to the performance of this Purchase Agreement the Daily Purchase Quantity and grants to Buyer the sole and exclusive right to purchase such gas during the term hereof, and Buyer commits to use good faith and all reasonable efforts to purchase pursuant to the Purchase Agreement the Daily Purchase Quantity.

Paragraph 6.1 provides for sale and delivery:

6.1 Gas sold and delivered hereunder shall be delivered at the Point of Delivery. Additional provisions set out the mechanics for the pricing of and payment for the gas purchases:
7.1 The price to be paid by Buyer to Seller for all gas purchased hereunder during each month shall be based upon the Average Daily Volume (as hereinafter defined) in effect for that month and shall be the weighted average of the applicable percentages set forth below multiplied by the Net Proceeds (as hereinafter defined) received by Buyer for gas owned or controlled by Seller and resold by Buyer under the Resale Contract(s), it being understood that Buyer shall utilize reasonable efforts in entering into Resale Contract(s) to obtain the best terms (including without limitation price terms) reasonably available in the area where the subject gas was produced:
As used herein “Average Daily Volume” shall mean the arithmetic average daily volume of gas purchased by Buyer hereunder obtained by dividing the total volume of gas purchased by Buyer hereunder during a month by the number of calendar days in that month and rounding the result to the next whole number. As used herein, the term “Net Proceeds” shall mean, with respect to any particular calendar month, the difference between “Gross Proceeds” for such calendar month and “Authorized Costs” for such calendar month, where “Gross Proceeds” equal the sum of (a) the gross proceeds received by Buyer for gas owned or controlled by Seller and resold by Buyer under the Resale Contract(s) during such calendar month, and (b) the amount of any imbalance penalty or similar charge that benefits Buyer and Seller for such calendar month, and further where “Authorized Costs” equal the sum of (a) any reasonable transportation, gathering or similar third party charges, or third party charges for fuel or line loss, incurred by Buyer and paid for such calendar month, and (b) subject to proviso contained in the last sentence of Section 4.2 hereof, 100% of any imbalance penalty charges for such calendar month.
8.1 Buyer shall make payment to Seller for all volumes of gas delivered at the Point of Delivery hereunder which are purchased by Buyer from Seller and resold under the Resale Contract(s). Buyer shall make payment to Seller on the later of either (i) the last day of the month of production or (ii) within five (5) business days of the date it receives payment from its customers under the Resale Contract(s) for gas purchased hereunder; in no event, however shall Buyer enter into any Resale Contract that does not mandate that the purchaser make payment within 90 days following the date the subject production is delivered at the Point of Delivery. If requested by Seller, payments by Buyer to Seller shall be made by electronic funds transfer prior to 1:00 p.m. Central Time on the date payment is due as specified herein, (emphasis added).

II. Standard of Review

This Court reviews a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standards for reviewing a traditional summary judgment are well-established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). When reviewing a motion for summary judgment, the court takes the nonmovant’s evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Willrich, 28 S.W.3d at 23-24. To establish it is entitled to summary judgment, a defendant must either disprove an element of the plaintiff’s case or prove each element of an affirmative defense. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).

Further, on cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. See Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex. 1993). When the trial court grants one motion and denies the other, the reviewing court should determine all questions presented. See Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The reviewing court should render the judgment that the trial court should have rendered. See Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984).

III. Applicable Law

Under Texas law, if there is no ambiguity in a written contract, “its construction and meaning become a question of law for the court to determine.” Dedier v. Grossman, 454 S.W.2d 231, 234 (Tex. Civ.App.-Dallas 1970, writ ref'd n.r.e.). When interpreting an unambiguous contract, it is well established that “the primary concern of the court 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). In order to achieve this objective, “courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of a contract so that none will be rendered meaningless.” Id. The court should consider that the “intent of the parties must be taken from the agreement itself, not from the parties’ present interpretation, and the agreement must be enforced as it is written.” Parts Indus. Corp. v. A.V.A. Servs., Inc., 104 S.W.3d 671, 678 (Tex.App.-Corpus Christi 2003, no pet.). This is often referred to as the “Four Corners Rule” which means that the intention of the parties is to be ascertained from the instrument as a whole and not from isolated parts thereof. See, e.g., Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) (per curiam); Burrus Mills, Inc. v. Hein, 378 S.W.2d 85, 88 (Tex.Civ.App.-Dallas 1964, writ dism’d); Ervay, Inc. v. Wood, 373 S.W.2d 380, 384 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.). Moreover, a court will not change the contract merely because it or one of the parties comes to dislike its provisions or thinks that something else is needed. Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 407 (Tex.App.-Amarillo 2003, pet. denied) (citing HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888-89 (Tex. 1998)). The court will not “ask about the subjective intent of the parties to the contract.” Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 867 (Tex.App.-Dallas 2003, pet. denied). When the contract is unambiguous, the court should apply the pertinent rules of construction, apply the plain meaning of the contract language, and enforce the contract as written. Id.

IV. Discussion and Analysis

As in most cases where the court must determine the meaning of unambiguous contract language, the parties’ views are in sharp contrast. While Wiser asserts Calpine has an absolute obligation to pay, Calpine contends that the agreement does not require it to pay for gas purchased by third parties until Calpine receives payment for that gas.

In support of this position, Calpine cites us to two particular parts of the agreement which Calpine argues must be read together in order to interpret the agreement. First, Calpine argues that paragraph 8.1 states, in part, that payment to Wiser is due only after Calpine “receives payment from its customers.” This provision, according to Calpine, is a condition precedent to payment. Second, we are cited to paragraph 7.1, which describes how payments to Wiser are to be calculated. That provision directs that the amount of each payment to Wiser is to be determined by multiplying a designated percentage figure, which reduces as the volume of gas sold rises, to the amount of money “received by” Calpine from the third-party purchaser in respect of that gas.

On the other hand, Wiser posits that the provision for payment in the first sentence of paragraph 8.1 is an absolute obligation of Calpine to pay. Wiser asserts that the balance of that paragraph, which Calpine argues dictates that no payment is required to be made to Wiser unless Calpine is paid, is merely a timing provision, not a limitation on the obligation to pay as a condition precedent. However, in the motion for summary judgment briefing, in particular, Wiser argued that Calpine’s obligation to pay arises within a “reasonable time” after the third-party purchaser should have paid Calpine. Further, it argued in the motion for summary judgment that section 9.343 of the Texas Business and Commerce Code demonstrates that the Texas legislature has placed a producer of natural gas in a favored position “as regards their right to be paid by purchasers of their gas.” Wiser contends that no condition precedent exists in the agreement’s language. It asserts that a true condition precedent would set out language as a clear limitation, but that no such language is evident in this agreement. Also, Wiser tells us that imposing a condition precedent upon them would effect a forfeiture and would lead to an absurd result since the payment obligation is absolute.

The cases cited to us by Wiser address primarily whether the language in paragraph 8.1 can be construed as a condition precedent. Several of those cases address the rules of construction which direct us in ascertaining whether a provision is a condition precedent and how it is to be applied. The leading authority on this point offered by Wiser is Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945 (Tex.1990). Criswell, along with the other cases Wiser cites, states the rule that conditions precedent are not favored and that construction establishing conditions precedent and resulting forfeitures must be avoided unless the language will admit of no other construction.

In Criswell, the Texas Supreme Court noted that “[bjecause of their harshness in operation, conditions are not favorites of the law.” Id. The Supreme Court directed that in construing a contract, “forfeiture by finding a condition precedent is to be avoided when another reasonable reading of the contract is possible.” Id. The court advised that “[i]n order to make performance specifically conditional, a term such as ‘if,’ ‘provided that,’ or some similar phrase of conditional language must normally be included.” Id. at 948. Furthermore, “[w]hile there is no requirement that such phrases be utilized, their absence is probative of the parties’ intention that a promise be made, rather than a condition imposed.” Id. Yet, in that case, the Supreme Court did not strike down the condition precedent to payment since the condition, a sale of the shopping center, was met.

In addition to Criswell, Wiser cites us several cases involving construction contracts. Those cases uniformly refuse to construe language as a condition precedent which plainly conditions payment of a contractor or subcontractor on the occurrence of an event, such as payment of the contractor by the owner. Gulf Constr. Co., Inc. v. Self, 676 S.W.2d 624 (Tex.App.Corpus Christi 1984, writ ref d n.r.e.) (subcontract provision was in the nature of a modification of the time provision which immediately preceded it in the first sentence of that paragraph and did not establish a condition precedent); Sheldon L. Pollack Corp. v. Falcon Industries, Inc., 794 S.W.2d 380 (Tex.App.-Corpus Christi 1990, writ denied) (payment provision was merely covenant that modified time and manner of payment, not condition of liability); Wisznia v. Wilcox, 438 S.W.2d 874 (Tex.Civ.App.-Corpus Christi 1969, writ refd n.r.e.) (contract containing express, unqualified and unconditional promise on the part of architect to pay structural engineer obligated architect to pay for labor performed and services rendered and that such obligation was not conditioned on architect’s being paid). We decline to follow that line of authorities.

Each construction case cited by Wiser relies upon a set of conclusions by the court of appeals in Gulf Construction about the construction business which is not set forth in the agreement language construed. In Gulf Construction, the court described the expectations in the construction business that the solvency of the owner is a credit risk to be borne by the general contractor, which burden is eased by mechanics hens and installment payments. Gulf Construction, 676 S.W.2d at 628. The court said, “[t]hese evidence the intention of the parties that the contractor be paid even though the owner may ultimately become insolvent. This expectation and intention of being paid is even more pronounced in the case of the subcontractor whose contract is with the general contractor, not with the owner.” Id. Accordingly, in order to transfer this normal credit risk incurred by the general contractor to the subcontractor, “the contract between the general contractor and the subcontractor should contain an express condition clearly showing that to be the intention of the parties.” Id. at 628-29; see also Falcon Industries, 794 S.W.2d at 384; Wisznia, 438 S.W.2d at 877. Even assuming these construction industry considerations could properly be relied on to interpret unambiguous language, those considerations are not shown to be applicable, even by analogy, to the case before us.

As further argument, Wiser asserts that Prickett v. Lendell Builders, Inc., 572 S.W.2d 57 (Tex.Civ.App.-Eastland 1978, no writ), supports its position that a provision which sets forth timing like that in paragraph 8.1, in the face of an absolute obligation to pay, is not a condition precedent. The Prickett case, which was decided at least six years before Gulf Construction, addressed a provision in a construction contract pertaining to payment of a subcontractor: “Payment shall be made monthly, within five (5) days after Contractor ... is paid for the same work by ... [owner].” Id. at 58. The court of appeals looked at the contract as a whole, including a provision which stated that a sum certain would be paid upon completion (“$109, 645.00, an estimated price”). The court of appeals concluded that the monthly payment provision was merely descriptive of how progress payments would be made and was not a condition precedent. Id. at 59.

The agreement before us is materially different from the one reviewed by the Eastland Court of Appeals in Prickett. The interrelation of the language in paragraphs 8.1 and 7.1 makes it clear that the second sentence in paragraph 8.1 is not merely descriptive of timing. Instead, it requires payment to Wiser when Calpine “receives payment” for the gas. In order to adopt the meaning espoused by Wiser, we would be required to inject into the agreement a specific requirement that where the third-party purchaser does not pay Calpine, Calpine must pay Wiser for the gas within a reasonable time of when the third-party should have paid Calpine. We have been shown no authority or agreement language upon which that interpretation can be based.

Wiser also asks us to apply, what it asserts is, an industry “expectation” of financial protection to the seller of gas which Wiser suggests is based upon section 9.343 of the Texas Business and Commerce Code. Wiser reasons that when the legislature passed section 9.343, it intended to provide interest owners and sellers of natural gas such as Wiser a favored position regarding their right to be paid for the gas by the first purchaser. We are urged to impose this “expectation” in a similar way as the industry expectations were applied in Gulf Construction and its progeny. However, even were we disposed to consider injecting some industry “expectation” into the agreement, we do not acknowledge that section 9.343 should be interpreted to create an industry-wide “expectation” as asserted by Wiser.

A reading of the plain language of section 9.343 reflects the imposition of a security interest in favor of the interest owner of gas to protect its right to payment for gas sold to the first purchaser. Tex. Bus. & Com.Code § 9.343; see McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003) (unambiguous statutory language will be interpreted according to its plain meaning). While it could be said that section 9.343 is favorable to an interest owner, that favor is limited to the security interest expressly provided. We have been shown no authority which requires that those lien rights set out in section 9.343 should be translated into implicit or inherent agreement provisions providing for an absolute obligation by Calpine to pay as suggested by Wiser.

In resolving these issues, we subscribe to the reasoning of the Fourteenth Court of Appeals in Clear Lake City Water Auth. v. Kirby Lake Dev. Ltd., 123 S.W.3d 735 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). In that case, a group of developers brought suit against the district for, among other things, breach of a contract in which the district agreed to pay for a portion of the developers’ costs incurred in constructing water and sewage facilities on properties within the district. The district contended that the payment provision of the contract unambiguously provided that the developers were to be paid only out of legally available and allocated voter-approved bond funds. Id. at 742. The developers, on the other hand, argued that the district had agreed to pay, as soon as possible from any available source, including revenue bonds, which do not require voter approval. Id. The court, after reviewing the contract in its entirety, concluded that while the district obligated itself to purchase the completed facilities as soon as possible, that requirement did not arise until after the district received the proceeds of voter-approved bond funds. Id. at 744. In reaching that conclusion, the court of appeals rejected the developers’ contention that receipt of voter-approved bond funds was not a condition precedent. Rather, “the payment provision of the contracts unambiguously provides that the [district’s] obligation to pay is expressly conditioned upon the receipt of voter-approved bond funds.” Id. at 745.

On this record, the judgment in Wiser’s favor, including the damages assessed, could only be based upon an interpretation of the agreement that Calpine has an absolute obligation to pay Wiser for gas which should have been paid for by Enron to Calpine. To interpret the language of the agreement as Wiser suggests, and as accepted by the trial court, would require us to inject meaning not expressed in the words chosen by the parties and placed within the four corners of the agreement. In our de novo review, we have rejected Wiser’s central proposition that Calpine had an absolute obligation to pay for the gas whether or not Calpine was paid by its purchaser of that gas. Rather, we have concluded Calpine was obligated to pay Wiser when it “receives payment” from Calpine’s purchaser of the Wiser gas. “In an unambiguous contract, we will not imply language, add language, or interpret it other than pursuant to its plain meaning.” Natural Gas Clearinghouse, 113 S.W.3d at 407.

In addition to ordering that Wiser recover from Calpine in damages and attorney’s fees, the judgment declares that Wiser holds a first lien security interest to secure payment of its damages, pursuant to section 9.343 of the Business and Commerce Code, in some unspecified oil and gas production which is owned by Calpine and to be identified through post-judgment discovery. The judgment authorizes foreclosure by judicial or nonjudicial means, as allowed by law. However, this lien could arise only by virtue of the trial court’s determination that Calpine had breached the agreement by failing to pay for the gas. Since we have determined that the trial court’s judgment imposing that liability upon Calpine is to be reversed, we reverse and render the judgment imposing the lien along with the rest of the terms of the judgment. We decide Calpine’s issues in its favor.

V. Conclusion

We conclude that the trial court erred in granting summary judgment in Wiser’s favor and refusing to grant Calpine’s motion for summary judgment. The trial court should have granted Calpine’s motion for summary judgment and denied Wiser’s. Accordingly, we reverse the judgment of the trial court and render judgment that Wiser take nothing.

      . Section 9.343 provides a security interest in favor of a selling interest owner to secure the obligations of the first purchaser to pay for natural gas. Tex. Bus. a Com.Code Ann. § 9.343 (Vernon 2002).


text:
    Gary W. KETTER, M.D. and Gary W. Ketter, M.D., P.A., Appellants v. ESC MEDICAL SYSTEMS, INC. and Eclipse Medical, Inc., Appellees.
    No. 05-03-01628-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2005.

      Robin B. Kinsel, J. Wade Birdwell, Wal-lach, Andrews, Florsheim & Stouffer, P.C., Fort Worth, for appellants.
    Philip P. Romero, Jay R. Downs, Downs & Stanford, P.C., John R. Henderson, Brown McCarroll, L.L.P., Dallas, Craig A. Morgan, Brown McCarroll, L.L.P., Austin, for appellees.
    Before Justices FITZGERALD, RICHTER, and LANG.
   OPINION

Opinion by

Justice FITZGERALD.

Gary W. Ketter, M.D. and Gary W. Ket-ter, M.D., P.A. appeal the judgment in favor ESC Medical Systems, Inc. and Eclipse Medical, Inc. Ketter brings four issues asserting the trial court erred by (1) granting Eclipse’s traditional motion for summary judgment that merely adopted ESC’s motion; (2) granting ESC’s and Eclipse’s no-evidence motions because they lacked sufficient specificity; (3) considering an unsworn statement as an affidavit in support of ESC’s traditional motion for summary judgment; and (4) granting ESC’s and Eclipse’s traditional motions for summary judgment on Ket-ter’s causes of action for common-law fraud, breach of implied warranty, violation of the Texas Deceptive Trade Practices Act (DTPA) and for Ketter’s “loss of reputation.” We reverse in part and affirm in part.

FACTUAL BACKGROUND

Gary W. Ketter, M.D. is a physician specializing in otolaryngology, which involves treatment of ear, nose, and throat conditions. Ketter testified that in 1997, he became interested in expanding his practice to include certain cosmetic procedures. Ketter also testified that in 1997, after a salesman told him the EpiLight Hair Removal System would remove hair permanently and could generate a certain level of earnings, he leased an EpiLight system. The system was manufactured by ESC Medical Systems, Inc. and distributed by Eclipse Medical, Inc. Ketter testified that the machine did not remove hair permanently and most patients experienced complete regrowth of ham in the treated areas. The patients were not satisfied with the results, and Ketter had to provide additional treatments for free and numerous refunds of fees, which resulted in the machine not being as profitable as was represented. On June 30, 2000, Ket-ter sued ESC, Eclipse, and other entities, on several causes of actions relating to alleged misrepresentations regarding the hair removal and earnings capabilities of the system.

Originally, Ketter filed suit against six parties on seven causes of action and requested damages on several grounds, including loss of reputation and standing in the community. After filing answers, ESC and Eclipse filed separate motions for summary judgment. Ketter then filed a first amended original petition which named only ESC and Eclipse as defendants and narrowed the causes of action. The amended petition alleged the common-law causes of action of breach of contract, fraud, and fraudulent misrepresentation. Ketter also alleged under the Uniform Commercial Code (UCC) breach of express warranty, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for particular purpose. See Tex. Bus. & Com.Code ANN. §§ 2.313-.315 (Vernon 1994). Ketter also alleged violations of the DTPA of false, misleading, or deceptive acts or practices under the “laundry list” of section 17.46, unconscionable actions or courses of action, and breaches of warranties. See Tex. Bus. & Com.Code Ann. §§ 17.46, .50(a)(1), (2) (Vernon 2002 & Supp.2004-05). The first amended original petition did not request damages for loss of reputation, and it omitted causes of action for conversion and products liability that had been pleaded in the original petition.

Without stating the specific grounds for its decision, the trial court granted the motions for summary judgment filed by ESC and Eclipse and ruled that Ketter take nothing on all his claims for relief.

BREACH OF WARRANTY

Before beginning discussion of Ketter’s challenges to the motions for summary judgment, we will discuss the nature of the causes of action for breach of warranty. Ketter pleaded breach of express warranty and the implied warranties of merchantability and fitness for particular purpose, all as created by the UCC. Ket-ter also pleaded breach of these same warranties under the DTPA. As the supreme court has stated, “The DTPA prohibits the breach of an express or implied warranty, but it does not create warranties. The warranties, both express and implied, actionable under the DTPA must be recognized by the common law or created by statute.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 438 (Tex.1995) (citation omitted). ESC and Eclipse challenged the breach-of-warranty causes of action on the ground that Ketter failed to give them notice of the breaches within a reasonable time as required by UCC section 2.607. See Tex. Bus. & Com.Code Ann. § 2.607(c)(1). This requirement also applies to UCC breach-of-warranty claims prosecuted under the DTPA. See U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 198-202 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (on UCC breach-of-express-warranty claim pursued under DTPA, court rendered take-nothing judgment for failure to give notice of breach as required by section 2.607). ESC also challenges the implied warranty of merchantability on the ground that no evidence shows the EpiLight is not merchantable. The product’s merchantability is a necessary part of the warranty and thus necessary to prove or disprove the warranty under both the UCC and the DTPA.

In this case, there is no relevant distinction between Ketter’s UCC and DTPA breach-of-warranty claims or between how ESC and Eclipse defend against them. Accordingly, we will not distinguish between the UCC and DTPA in our discussion of the breach of warranty causes of action.

SUMMARY JUDGMENT

The standards for reviewing summary judgments are well established. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). In a traditional motion for summary judgment under rule 166a(c), the movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Id. In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). In a no-evidence motion for summary judgment under rule 166a(i), the movant asserts there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a©; W. Inv., Inc., 162 S.W.3d at 550. “Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion.” W. Inv., Inc., 162 S.W.3d at 550. When the trial court’s summary judgment does not specify the basis for the ruling, we must affirm the judgment if any of the summary judgment grounds are meritorious. Id. When the appeal does not challenge one of the grounds for summary judgment, the judgment may be affirmed on that ground alone. Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.-Dallas 2003, no pet.).

LOSS-OF-REPUTATION CLAIMS

Ketter’s fourth issue includes the assertion that the trial court erred in granting summary judgment on his “loss of reputation claims.” .In his original petition, Ketter alleged his damages included “injury and damage to Plaintiffs’ reputation and standing in the community.” When he filed his first amended petition, however, he did not allege damage to his reputation and community standing.

When a party files an amended pleading, the earlier pleading “shall no longer be regarded as a part of the pleading in the record.” Tex.R. Civ. P. 65. By not including damage to his reputation in the amended pleading, Ketter abandoned that claim. Dolenz v. All Saints Episcopal Hosp., 638 S.W.2d 141, 142 (Tex.App.-Fort Worth 1982, writ ref'd n.r.e.). Because no claim for damage to reputation was before the court when it granted the motions for summary judgment, Ketter’s argument that the trial court erred in granting summary judgment on that claim lacks merit. We overrule Ketter’s fourth issue to the extent it concerns his “loss of reputation claims.”

NO-EVIDENCE MOTIONS

In his second issue, Ketter asserts the trial court erred in granting ESC’s and Eclipse’s no-evidence motions for summary judgment because, Ketter asserts, the motions did not specifically identify the elements of the causes of action that lacked evidentiary support. A no-evidence motion for summary judgment “must state the elements as to which there is no evidence.” Tex.R. Civ. P. 166a(i). The motion must specifically state which elements of the non-movant’s cause of action lack supporting evidence. Thomas v. Omar Inv., Inc., 156 S.W.3d 681, 685 (Tex.App.Dallas 2005, no pet.).

Eclipse’s No-Evidence Motion

Ketter challenges Eclipse’s no-evidence motion on only the causes of action for fraud, fraudulent misrepresentation, and DTPA violation for false, misleading, or deceptive act or practice. Eclipse’s no-evidence motion addressed Ketter’s common-law fraud and fraudulent misrepresentation causes of action as follows:

Defendant moves for summary judgment as to Plaintiffs’ cause of action for common law fraud and fraudulent representation, and would show that there is no evidence that any representative of Defendant; made any material misrepresentation; that was false; that was either known to be false when made or was recklessly asserted without knowledge of its truth; that was intended to be acted upon; that was in fact acted upon and that caused injury to Plaintiffs. There is likewise no evidence that any reliance on the part of Plaintiffs was justified.

Eclipse’s no evidence motion addressed Ketter’s DTPA cause of action as follows:

Defendant moves for summary judgment as to Plaintiffs’ DTPA claims, and would show that there is no evidence that Defendant engaged in any false, misleading, or deceptive acts or practices, or that any such acts or omissions caused harm to Plaintiffs.

Ketter argues that these grounds do not set forth the elements specifically challenged. We disagree. The ground as to common-law fraud and fraudulent misrepresentation identified the specific elements alleged to lack evidence. See Ernst & Young, LLP v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001) (common-law fraud); Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 772 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (fraudulent misrepresentation). Although the DTPA ground may be inadequate as to the allegation of no evidence of engaging in a “false, misleading, or deceptive act or practice” by not specifying the act or practice lacking evidence, it does specify causation as one of the necessary elements lacking evidence. See Tex. Bus. & Com.Code Ann. § 17.50(a) (Vernon 2002) (elements of consumer’s DTPA claim). Accordingly, we conclude Eclipse’s motion for summary judgment is sufficiently specific under rule 166a(i) to support the summary judgment on the causes of action for common-law fraud, fraudulent misrepresentation, and DTPA violations involving false, misleading, or deceptive acts or practices. We overrule Ketter’s second issue as to Eclipse.

On appeal, Ketter does not challenge Eclipse’s no-evidence grounds for summary judgment on the causes of action for breach of contract and breach of express and implied warranties. Accordingly, we affirm the summary judgment in favor of Eclipse on these causes of action. See Jones, 107 S.W.3d at 832. The only cause of action not addressed by Eclipse’s no-evidence motion is violation of the DTPA through unconscionable action or course of action.

ESC’s No-Evidence Motion

Ketter argues that the no-evidence portion of ESC’s motion for summary judgment consisted of only the following statement: “ESC is entitled to summary judgment because no evidence exists of one or more elements of Dr. Ketter’s causes of action based on the Deceptive Trade Practices Act, breach of warranties, fraud, damage to reputation, fraudulent misrepresentation, products liability, and breach of contract.” That statement, however, is not the entirety of ESC’s no-evidence allegations.

In arguing against Ketter’s DTPA claims of false, misleading, or deceptive acts or practices, ESC’s motion for summary judgment asserted, “There is no evidence that ESC misrepresented the Epi-Light’s capabilities.” In arguing against the fraud and fraudulent misrepresentation allegations, ESC’s motion asserts, “Dr. Ketter has not produced any evidence to establish that anyone at ESC knew that the marketing materials ESC published were false because those statements are consistent with the actual performance of the EpiLight device.” In arguing against the breach-of-the-implied-warranty-of-merchantability causes of action, ESC’s motion stated, “his [Ketter’s] claims for breach of the implied warranty of merchantability must fail because he will be unable to demonstrate that the device was ‘unmer-chantable.’ ”

These allegations identified the specific elements of the causes of action lacking evidence and put Ketter on notice that he must point out evidence that establishes a question of fact as to these specific elements. We overrule Ketter’s second issue as to ESC.

TRADITIONAL MOTIONS

ESC’s Traditional Motion

In the fourth issue, Ketter argues the trial court erred in granting the traditional motion for summary judgment on his causes of action for fraud, breach of express and implied warranties, and DTPA violations of false, misleading, or deceptive acts or practices and unconscionable action or course of action. Ketter does not challenge the granting of the traditional summary judgment on his breach-of-eon-tract or fraudulent misrepresentation causes of action.

As discussed above, Ketter failed to show the trial court erred in granting ESC’s no-evidence motion for summary judgment on Ketter’s causes of action for fraud, fraudulent misrepresentation, breach of the implied warranty of merchantability, and DTPA violations for false, misleading, or deceptive acts or practices; accordingly, we need not consider whether ESC’s traditional motion for summary judgment was sufficient to dispose of those causes. See W. Inv., Inc., 162 S.W.3d at 550. Accordingly, we consider only whether the traditional motion for summary judgment establishes ESC’s entitlement to judgment as a matter of law on Ketter’s causes of action for breach of express warranty and the implied warranty of fitness for particular purpose and whether the motion establishes ESC’s entitlement to judgment as a matter of law on the cause of action for violation of the DTPA through unconscionable action or course of action.

Breach of Warranty by ESC

Having concluded Ketter has not shown the trial court erred in granting ESC’s no-evidence motion for summary judgment on the implied warranty of merchantability, the breach-of-warranty causes of action remaining are those for breach of express warranty and breach of implied warranty of fitness for particular purpose. ESC moved for traditional summary judgment on the breach of warranty claims on the ground that Ketter failed to give it notice of the breach within a reasonable time as required by section 2.607 of the business and commerce code. That statute provides, “Where a tender has been accepted, the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any reme-dy_” Tex. Bus. & Com.Code ANN. § 2.607(c)(1) (Vernon 1994). Ordinarily, notice is a question of fact to be determined by the trier of fact. It becomes a matter of law only where there is no room for ordinary minds to differ about the proper conclusion to be drawn from the evidence. Lochinvar Carp. v. Meyers, 930 S.W.2d 182, 190 (Tex.App.-Dallas 1996, no writ).

In its motion for summary judgment, ESC asserts it first received notice on June 29, 2000, approximately two years and seven months after Ketter received the equipment. The motion also asserts Ketter “used the equipment extensively [and] [h]e had ample opportunity to discover the alleged defects with the device.” ESC cites a case holding that notice given three years, eleven months after discovery of the defect is unreasonable as a matter of law. Southerland v. N.E. Datsun, Inc., 659 S.W.2d 889, 892-93 (Tex.App.-El Paso 1983, no writ). However, ESC does not establish when Ketter discovered the breach, and ESC does not explain why the period between Ketter’s discovery of the breach and his giving notice was unreasonable as a matter of law. We conclude ESC failed to establish as a matter of law that untimely notice barred Ketter’s causes of action for breach of express warranty and breach of implied warranty of fitness for particular purpose.

Lack of reasonable notice was the only ground for summary judgment brought by ESC on Ketter’s breach of warranty causes. Because that ground did not support summary judgment on that cause of action, we conclude the trial court erred in granting ESC’s motion for summary judgment on it.

Unconscionable Action or Course of Action

The DTPA defines “unconscionable action or course of action” as “an act or practice which, to a consumer’s detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.” Tex. Bus. & Com.Code Ann. § 17.45(5) (Vernon 2002). In the live petition, Ketter alleged unconscionable action or course of action in the following paragraph:

In the sale of the EpiLight to Plaintiffs, Defendants engaged in an unconscionable action or course of action by representing that the EpiLight and/or warranties were of the best quality. By such conduct, Defendants took advantage of the lack of knowledge, ability, experience or capacity of the Plaintiffs to a grossly unfair degree. The conduct of the Defendants resulted in a gross disparity between the value received and the consideration paid.

ESC’s traditional motion for summary judgment on this cause of action first asserts, “as a physician with years of advanced education and years of practice, Dr. Ketter cannot contend that ESC took advantage of his lack of knowledge, ability, and experience to a grossly unfair degree.” ESC cited no authority for this proposition. We decline to hold that an unconscionable action or course of action cannot be practiced upon an experienced physician.

The motion for summary judgment also argued,

Dr. Ketter cannot base his DTPA claim on an alleged gross disparity between the value received and the consideration paid because to be actionable under DTPA § 17.45(5)(A), the resulting unfairness must be “glaringly noticeable, flagrant, complete and unmitigated.” Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.1985) (defining the term “grossly unfair”). Here Dr. Ketter received a device that by his own admission was successful at clearing an average of 90% of his patients’ hair.

This argument does not address Ketter’s testimony that the EpiLight did not remove hair permanently, as he had been told, which necessitated him giving free additional treatments and refunding fees. Thus, the traditional motion did not establish as a matter of law that there was not a gross disparity between the value received and the consideration paid, and Ketter’s affidavit creates a material fact question on this issue.

We sustain Ketter’s fourth issue as to ESC on Ketter’s causes of action for breach of express warranty, breach of the implied warranty of fitness for particular purpose, and the DTPA violation of unconscionable action or course of action. We overrule the issue as to the other causes of action.

Eclipse’s Traditional Motion

In the first issue, Ketter asserts the trial court erred in granting Eclipse’s traditional motion for summary judgment because it merely incorporated by reference ESC’s traditional motion for summary judgment. As discussed above, the only cause of action against Eclipse remaining after resolution of Eclipse’s no-evidence motion for summary judgment is the cause of action for the DTPA violation of unconscionable act or course of action. Accordingly, we limit our analysis of Eclipse’s traditional motion for summary judgment to that cause of action.

The traditional portion of Eclipse’s motion consisted of the statement that it “adopts and incorporates by reference in its entirety” ESC’s motion for summary judgment and “adopts and incorporates by reference all legal arguments and evidence in support of those arguments, to the extent that same apply equally to Defendant Eclipse Medical, Inc.” Ketter argues this portion of the motion fails to set forth any grounds for summary judgment as required by rule 166a(c). See Tex.R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341-44 (Tex.1993); Camden Mach. & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 310 (Tex. App.-Fort Worth 1993, no writ). Eclipse argues the supreme court has implicitly held that a defendant may incorporate by reference the motion for summary judgment of a co-defendant. See Chapman v. King Ranch, Inc., 41 S.W.3d 693, 699-700 (Tex.App.-Corpus Christi 2001), rev’d on other grounds, 118 S.W.3d 742 (Tex.2003) (supreme court rendered judgment that plaintiffs take nothing against defendants who had moved for summary judgment, almost all of whom had incorporated by reference the motion for summary judgment of a single defendant).

However, we need not decide in this case whether incorporation of a co-defendant’s summary judgment motion is permissible because the outcome is the same. If incorporation is not permissible, then we must reverse the granting of the motion for summary judgment on the cause of action for the DTPA violation of unconscionable action or course of action because the grounds expressly presented in Eclipse’s motion do not address that cause of action. See Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 357 (Tex.2000); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993); EOG Res., Inc. v. Wall, 160 S.W.3d 130, 139 (Tex.App.-Tyler 2005, no pet.). However, if incorporation is permissible, then we must sustain the fourth issue in part as to Eclipse and reverse the summary judgment on the DTPA violation of unconscionable action or course of action because, as explained above, ESC’s traditional motion for summary judgment failed to establish the entitlement to judgment as a matter of law on that cause of action. Because Ket-ter’s first issue is not “necessary to final disposition of the appeal,” we need not resolve it. Tex.R.App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). We hold the trial court erred in granting Eclipse’s motion for summary judgment on the cause of action for the DTPA violation of unconscionable action or course of action.

EVIDENCE

In the third issue, Ketter asserts the “affidavit” of Laurie Sharp is fundamentally defective because it lacks a jurat. We have reviewed the document, and we conclude that none of the statements in it are relevant to determination of the issues before us. Because consideration of the document is not necessary to disposition of the appeal, we do not reach this issue. See Tex.R.App. P. 47.1.

CONCLUSION

We reverse the trial court’s judgment in part and remand for further proceedings on Ketter’s causes of action against ESC for breach of express warranty, breach of implied warranty of fitness for particular purpose, and the DTPA violation of unconscionable action or course of action. We reverse the trial court’s judgment and remand for further proceedings the cause of action against Eclipse for the DTPA violation of unconscionable action or course of action. In all other respects, we affirm the trial court’s judgment.

      . By "traditional,” we mean a motion for summary judgment under rule of civil procedure 166a(c) instead of the more recent rule 166a(i).

      . Products liability, like damage to reputation, was alleged in Ketter's original petition but not included in Ketter’s first amended petition. ESC and Eclipse filed their motions for summary judgment before Ketter amended his petition.

      . As we interpret ESC’s motion for summary judgment, the motion presented only a no-evidence ground for the cause of action for the DTPA violation of false, misleading, or deceptive acts or practices. However, even if the motion also included traditional grounds for this cause of action, ESC’s success on the no-evidence ground requires us to affirm the summary judgment on that ground alone. See W. Inv., Inc., 162 S.W.3d at 550.

      . The other cases ESC cites involve determinations by a trier of fact, not a conclusion of law, of whether the notice was reasonable. See EPN-Delaval, S.A. v. Inter-Equip, Inc., 542 F.Supp. 238 (S.D.Tex.1982); Lochinvar, 930 S.W.2d at 189; Wilcox v. Hillcrest Mem. Park, 696 S.W.2d 423, 425 (Tex.App.-Dallas 1985), writ ref'd n.r.e., 701 S.W.2d 842 (Tex. 1986) (per curiam). They do not show the notice in this case was unreasonable as a matter of law.

      . In its brief on appeal, ESC asserts it established as a matter of law that it did not breach the express warranty. This ground was not presented in ESC's motion for summary judgment, and it may not be used to support the granting of the motion for summary judgment. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex.2002); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

      . Before September 1, 1995, the DTPA defined "Unconscionable action or course of action” as follows:
      "Unconscionable action or course of action” means an act or practice which, to a person’s detriment:
      (A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
      (B) results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.
      Act of May 10, 1977, 65th Leg., R.S., ch. 216, § 1, 1977 Tex. Gen. Laws 600, 600 (amended 1995). In 1995, the definition was amended to its current form, omitting paragraph (B). Act of May 19, 1995, 74th Leg., R.S., ch. 413, § 2, 1995 Tex. Gen. Laws 2988, 2989. Although "gross disparity between the value received and consideration paid” is no longer part of the statutory definition, it may be evidence of an unconscionable action or course of action as defined in the current definition. Cf. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex.App.-Waco 2005, no pet.) (considering whether there was "gross disparity in the values exchanged” in determining whether contract was unenforceable as unconscionable). The parties do not discuss this issue, but they appear to accept that unconscionable action or course of action may be proven through evidence of gross disparity. Accordingly, for purposes of this opinion, we will presume that unconscionable action may be proven through evidence of gross disparity between the value received and the consideration paid.