Reversed and Remanded and Memorandum Opinion filed April 2, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00782-CV

JIMMY VITELA, Appellant 

V.

GALLERY MODEL HOMES, INC. D/B/A GALLERY FURNITURE, 

Appellee 

On Appeal from the County Civil Court at Law No. 4 

Harris County, Texas 

Trial Court Cause No. 1047233 

MEMORANDUM OPINION 

Appellant Jimmy Vitela sued Appellee Gallery Model Homes, Inc. d/b/a 

Gallery Furniture, alleging it failed to deliver the furniture he purchased in a timely 

manner and in proper condition. The trial court granted Gallery Furniture’s 

traditional and no-evidence motions for summary judgment and Vitela timely 

appealed. For the reasons below, we reverse the trial court’s summary judgment and 

remand for further proceedings. 
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BACKGROUND

I. Facts 

Vitela ordered a leather sectional and ottoman from Gallery Furniture in June 

2013. Vitela claims that as he was making his purchase, a Gallery Furniture 

salesperson told him Gallery Furniture was “having a sale” on theater furniture and 

custom ordered items, wherein Gallery Furniture would “deliver within ten days or 

it was free.” Vitela states he “believed the salesman and agreed to the deal he 

presented.” 

Vitela’s leather sectional was delivered to his home 14 days later. Vitela 

claims the delivery did not include the ottoman he ordered and that the leather 

sectional was not large enough to accommodate the undelivered ottoman. Vitela 

notified Gallery Furniture regarding his order’s deficiencies. 

United Leather USA subsequently arrived at Vitela’s residence and removed 

the leather sectional’s center section (which would be expanded to accommodate the 

ottoman). Vitela asserts that after removing the center section, the leather sectional 

was left with “metal connection points attached” and that these points caused 

damage to his floor, his clothing, and his family members. 

Vitela asserts both that the ottoman was never delivered and that the leather 

sectional’s center section was originally delivered and then removed. Vitela states 

his attorney sent “a demand letter to get the furniture or [to] get [his] money back.” 

Although he has paid for the furniture, Vitela claims Gallery Furniture refuses both 

to deliver the remainder of his order and to refund his money. 

II. Legal Proceedings 

Vitela sued Gallery Furniture and asserted claims for breach of contract, 

deceptive advertising, negligence, conversion, unjust enrichment, and money had 
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and received. Gallery Furniture filed traditional and no-evidence motions for 

summary judgment and sought judgment as a matter of law against all of Vitela’s 

claims. Gallery Furniture attached to its motion an affidavit from its director of 

operations and five exhibits. Vitela filed a response thereto supported by affidavits 

from him and his wife, Lily Vitela.1

 Vitela’s response also asserted objections to 

Gallery Furniture’s summary judgment evidence. 

The trial court signed an order on July 12, 2017 (1) granting Gallery 

Furniture’s traditional motion for summary judgment and no-evidence motion for 

summary judgment, (2) failing to reference or rule upon Vitela’s evidentiary 

objections, and (3) stating that it “is a Final Judgment disposing of ALL issues and 

ALL parties.” 

Vitela filed a motion for new trial and, while his motion was pending, filed a 

separate request asking the trial court to rule on his evidentiary objections. The trial 

court ultimately signed an order overruling Vitela’s evidentiary objections. 

Vitela timely appealed the trial court’s final judgment. 

ANALYSIS

Vitela asserts three issues on appeal: (1) the trial court’s summary judgment 

against his claims; (2) the trial court’s rulings on his evidentiary objections; and 

(3) the scope of relief granted by the trial court. We sustain Vitela’s first issue and 

therefore need not address his second and third issues. 

I. Summary Judgment

Where, as here, the trial court’s summary judgment does not state the grounds 

for its ruling, we affirm the judgment if any of the grounds advanced is meritorious. 

 

1

 Because she shares the same last name as her husband, we refer to Lily Vitela by her first 

name to avoid confusion. 
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Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); see also Muller v. Stewart Title 

Guaranty Co., 525 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.] 2017, no 

pet.). 

We review a summary judgment de novo. Merriman v. XTO Energy, Inc., 

407 S.W.3d 244, 248 (Tex. 2013). When reviewing a hybrid traditional and noevidence summary judgment motion, we generally address no-evidence grounds 

first, but need not do so if we conclude the ruling must be affirmed on traditional 

grounds. Muller, 525 S.W.3d at 868 (citing McCoy v. FemPartners, Inc., 484 

S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2015, no pet.)). We take as true 

all evidence favorable to the nonmovant and indulge every reasonable inference and 

resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 

S.W.3d 656, 661 (Tex. 2005). 

In a no-evidence motion for summary judgment, the movant must specifically 

state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i); see also

Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 473-74 (Tex. App.—Houston 

[14th Dist.] 2006, no pet.). The trial court must grant the motion unless the 

nonmovant produces summary judgment evidence raising a genuine issue of 

material fact. Tex. R. Civ. P. 166a(i). The nonmovant is “not required to marshal 

its proof; its response need only point out evidence that raises a fact issue on the 

challenged elements.” Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) 

(internal quotation omitted). A fact issue exists if the nonmovant brings forth 

evidence that would enable reasonable and fair-minded jurors to differ in their 

conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). 

For a traditional summary judgment motion, the movant must demonstrate 

that no genuine issues of material fact exist and that the movant is entitled to 

judgment as a matter of law. Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 
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S.W.3d 221, 229 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). If the movant 

makes this showing, the burden shifts to the nonmovant to produce evidence 

sufficient to raise an issue of fact. Id. 

For reasons that follow, we conclude, under these circumstances, the existence 

of a factual issue is readily apparent, thereby rendering summary judgment 

inappropriate as a matter of well-settled law. 

A. Breach of Contract 

The elements of a breach of contract claim are (1) the existence of a valid 

contract; (2) performance or tendered performance by the plaintiff; (3) breach of the 

contract by the defendant; and (4) damages sustained by the plaintiff as a result of 

the breach. Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 

2006, pet. denied). 

In his original petition, Vitela specifically alleged Gallery Furniture “fail[ed] 

to deliver [Vitela’s] complete furniture set within ten days” and “fail[ed] to deliver 

the furniture that [Vitela] has paid for nearly one year after [Vitela] fulfilled his duty 

of payment.” 

Gallery Furniture asserted in its summary judgment motion that Vitela refused 

to accept delivery of the furniture. Responding to this claim, Vitela introduced 

evidence tending to prove Gallery Furniture has not attempted to deliver the ottoman 

and the leather sectional’s center section. 

Vitela’s evidence therefore raised an issue of fact on the challenged element 

of his contract claim, i.e., Gallery Furniture’s alleged failure to deliver the remainder 

of Vitela’s furniture purchase. The trial court therefore erred in granting summary 

judgment on Vitela’s breach of contract claim. 
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B. Deceptive Advertising 

To recover under the Deceptive Trade Practices Act [the “DTPA”], Vitela 

must establish that (1) he was a consumer of the defendant’s goods or services; 

(2) the defendant committed false, misleading, or deceptive acts in connection with 

the lease or sale of goods or services; and (3) such acts were a producing cause of 

actual damages to him. Tex. Bus. & Com. Code Ann. § 17.46 (Vernon Supp. 2018); 

see also Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) and Guest 

v. Cochran, 993 S.W.2d 397, 407 (Tex. App.—Houston [14th Dist.] 1999, no pet.). 

In his original petition, Vitela pleaded Gallery Furniture (1) advertised that “custom 

home theatre seating would be in the customer’s home within ten days or it would 

be free;” (2) assured him that “a complete product in the condition warranted would 

be promptly and properly delivered;” and (3) had a “duty to deliver goods in proper 

condition and in a timely manner.” 

The parties’ evidence conflicts regarding what type of furniture Vitela 

ordered: Gallery Furniture describes the purchased furniture as a “custom leather 

sectional” whereas Vitela claims he purchased “home theater seating.” This 

description, Vitela contends, is relevant to Gallery Furniture’s alleged 

misrepresentation regarding the 10-day delivery guarantee. Gallery Furniture 

asserted Vitela “produced no evidence of the advertisement nor any evidence that 

[Vitela] purchased custom home theatre seating.” In his summary judgment 

response, Vitela argued he did not get the “theater seating” he “bargained for.” 

Vitela’s and Lily’s affidavits state Gallery Furniture has not attempted to deliver the 

remainder of Vitela’s furniture purchase. 

An actionable misrepresentation under the DTPA includes “advertising goods 

or services with intent not to sell them as advertised.” Tex. Bus. & Com. Code Ann. 

§ 17.46(b)(9). A consumer also may recover for “represent[ations] that goods or 
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services are of a particular standard, quality, or grade, or that goods are of a particular 

style or model, if they are of another[.]” Id. at (b)(7); see also Tony Gullo Motors I, 

L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006) (representation that purchaser 

would get one model of car when she was going to get another was actionable under 

the DTPA). Both oral and written representations may support a DTPA claim. 

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001). 

Taking as true the evidence favorable to Vitela and indulging reasonable 

inferences and doubts in his favor, this evidence raises an issue of fact with respect 

to Vitela’s allegations, i.e., that Gallery Furniture misrepresented that a complete 

custom home theatre seating arrangement would be promptly and properly 

delivered. Therefore, the trial court erred when it granted Gallery Furniture’s hybrid 

motion for summary judgment. 

C. Negligence 

A plaintiff asserting a negligence claim must establish the existence of a duty, 

a breach of that duty, and damages proximately caused by that breach. W. Invs., Inc. 

v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). 

In his original petition, Vitela asserted Gallery Furniture owed him a duty to 

“properly deliver furniture that is safe for use in his home” and alleged Gallery 

Furniture breached this duty by “deliver[ing] incomplete furniture and then t[aking] 

a piece of that incomplete furniture leaving metal pieces protruding.” Gallery 

Furniture’s summary judgment motion summarily asserted Vitela could not produce 

any evidence demonstrating negligence. 

Vitela’s summary judgment response included sworn statements that the 

center section of the leather sectional was removed and that the sectional’s remaining 

portion was left with protruding metal parts. Vitela and Lily both swore that the 
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protruding metal parts damaged clothing, damaged their home’s floor, and scratched 

their children. This evidence raises an issue of fact on Vitela’s negligence claim, 

specifically, whether Gallery Furniture breached its duty to Vitela by “deliver[ing] 

incomplete furniture” and “leaving metal pieces protruding” which caused harm. 

This evidence, viewed in the light most favorable to Vitela, forecloses summary 

judgment against Vitela’s negligence claim. 

D. Conversion 

To recover for conversion, a plaintiff must show (1) the plaintiff owned, had 

legal possession of, or was entitled to possession of the property; (2) the defendant 

assumed and exercised dominion and control over the property in an unlawful and 

unauthorized manner to the exclusion of and inconsistent with the plaintiff’s rights; 

and (3) the defendant refused plaintiff’s demand for a return of the property. Robin 

Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 97 (Tex. 

App.—Houston [14th Dist.] 2011, no pet.). 

Gallery Furniture argued Vitela “refused and still refuses to accept the 

furniture” and that Vitela could not produce any evidence showing it exercised 

dominion and control over the sectional in an unlawful and unauthorized manner. 

In response, Vitela introduced evidence tending to show he paid for (inter alia) an 

ottoman and a complete leather sectional he did not receive. 

Viewing the evidence in the light most favorable to Vitela, the evidence is 

sufficient to raise an issue of fact regarding whether Gallery Furniture exercised 

dominion and control over the sectional in an unlawful and unauthorized manner. 

The trial court erred by granting a no-evidence summary judgment on Vitela’s 

conversion claim. 
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E. Unjust Enrichment 

A party may recover for unjust enrichment when “one person has obtained a 

benefit from another by fraud, duress, or the taking of an undue advantage.” 

Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). 

Gallery Furniture’s summary judgment motion summarily asserted Vitela 

produced no evidence that it has “obtained a benefit from not delivering [Vitela’s] 

custom leather sectional within ten (10) days of his order.” This argument, however, 

fails to address the broader scope of Vitela’s unjust enrichment claim, namely, that 

Gallery Furniture failed to deliver Vitela’s complete furniture purchase (including 

the ottoman and leather sectional’s center section). It does not require a juridical 

leap to conclude that those who are paid for goods they do not deliver obtain a benefit 

from their alleged malfeasance (e.g., the ability to purportedly “sell” said goods to 

third parties). 

Simply stated, Vitela alleged (and introduced evidence tending to prove) that 

he “paid for the furniture” but did “not have the furniture he paid for.” This evidence 

raises an issue of fact on the challenged element and forecloses a no-evidence 

summary judgment. 

F. Money Had and Received 

“A cause of action for money had and received arises when the defendant 

obtains money which in equity and good conscience belongs to the plaintiff.” Hunt 

v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.—Houston [14th Dist.] 2001, no pet.). 

A claim for money had and received is not based on wrongdoing but instead looks 

to the justice of the case and asks whether the defendant has received money which 

rightfully belongs to another. Id. 

Gallery Furniture’s traditional motion for summary judgment argued Vitela’s 
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claim failed as a matter of law because evidence proved “Vitela’s furniture [was] 

ready to be delivered, but Vitela refuse[d] to accept the furniture.” 

This statement is contradicted, however, by Vitela’s summary judgment 

evidence. Specifically, his and Lily’s affidavits state Gallery Furniture has not 

attempted to deliver the furniture. Vitela’s affidavit further states his attorney sent 

a demand letter to get the furniture back or his payment refunded and that both 

demands were refused. Viewing this evidence in the light most favorable to Vitela 

and resolving all inferences and doubts in his favor, Vitela raised an issue of fact 

with respect to the challenged claim, thereby foreclosing the possibility of 

permissible summary judgment. 

Because we sustain Vitela’s challenges to the trial court’s summary judgment, 

we need not address the issues relating to the trial court’s evidentiary rulings or the 

scope of relief granted. See Tex. R. App. P. 47.1. 

CONCLUSION

We reverse the trial court’s July 12, 2017 final judgment and remand the case 

for further proceedings consistent with this opinion. 

 /s/ Meagan Hassan

 Justice 

Panel consists of Justices Christopher, Jewell, and Hassan.