Opinion issued A u gust 24, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 21
- 00634
- CV

——————————— FOLUSHO K. PETERS , Appella nt

V. VOLK S WAGEN GROUP OF AMERICA, INC. D/B/A AUDI OF AMERICA, INC . , & SEWELL CORPORATION D/B/A S E W ELL AUDI NORTH HOUSTON , Appell e e s
On Appeal from the 129th District Court

Harris County, Texas Trial Court Ca se No. 2018
- 91383

MEMORANDU M OPINION In this personal injury case, appellant Folusho K. Peters appeals the trial court’s order gr anting summa r y judgment in f a vor of appell ees V olk s wagen G roup of A merica, I nc. d/b/a Audi of America, Inc. (V W GoA) and Sewell Corporation2

d/b/a Sewell Audi N orth Houston (Sewell) on Peters’ s claim s for strict prod uc t liability ( design, manufacturing , and marketing de f ec t s ) , negligence, breach of express and implied warranties, and Deceptive Trade P ra ctices Act violations

. T EX
. B US
. & C OM
. C ODE §§ 17.41

– 17.63 (DTPA). In four issues, Peters contends that the trial court erred in (1) denying her motion to com pel VWGoA to pro d uce relevant design, manufacturing , and testing documents ; (2) declining to apply the doctrine of res ipsa loquitur ; (3) granting summary jud gment in favor of VWGoA and Sewell on her DTPA claim s ; and (4) and granting summary judmgent in favor of VWGoA and S ewell on her breach of warranty claims . We affirm. Background Peters purchased a certified, pre

- owned 2014 Audi A8 Quattro (the vehicle) from Sewell in June 2017

. P rior to Peters’ s purchase, Auto Glass I n stallers (Auto Glass) replaced the vehicle ’s w ind shield in March 2017 at the request of its previous owners

. The replacement required the removal and reinstallation of the vehicle’s rearview mirror. On November 7, 2017, Peters was driving to work on I

- 45 North in Houston wh en she swerved to avoid hit t ing the car in front of her , lost control of the vehicle , and s truck a concrete guardrail. Upon impact, the vehicle’s rearview mirror detached from the windshield and struck her in the face, injuring her.3

Peters sued VWGoA and Se well , asserting claims fo r st rict product liability ( design, manufacturing, and marketing defects ) , negligence, breach of express and implied warranties, DTPA violations, and gross negligence. Peters further alleged that the doctri ne of res ipsa loquitur s h ould be applied to her c a use s of action

. Peters sought actual and punitive damages and a ttor ne y’s fees. Peters filed her

seco n d amended petiti on

— the l iv e p leading in this case

— on August 31, 2020. Sewell answered asserting a general denial and affirmati ve defenses. VWGoA filed spe c ial exc ep tions, an “ objection to blanket document designation , ” and its original answer asserting a general denial and affirmative defenses. Appe llees subsequently amended their answer s . Appellee s later filed a motion to desig na t e Auto Glass as a r esponsi ble third party , and the trial court granted the motion. In her third request for producti on of documents to VWGo A and Sewe ll, Peters sought, a mong other things, docu ments related to the design , manufacture , and mark et i ng of the vehicle and its comp o nents, including the rearview m irror. In its respons e s to some of Peters’s individual discovery requests, VWGoA stated that it “has not and does not design, develop, manufacture, or test Audi automobiles or

r earview mirro rs ” and that “VWGoA is not in poss ession, custody or control” of the requested materials. In the prelimina ry statement to its supplemental discovery responses, VWGoA stated:4 VWGoA is the sole, authorized United States importer and marketer o f Audi vehicles. V WGoA has not and does not d esig n, deve lop, manufacture or test Audi automobiles or the review mirrors or front windshields installed in Audi automobiles. More specifically, VWGoA did not design, develop, manufacture or test the model yea r 2014 Audi A8 Quat tro bearing VIN WAURGAFD6EN 0112 41 (“Su bject Vehicle”) which is the subject of this lawsuit, or the rea r view mirror or front windshield contained in the Subject Vehicle. Upon information and belief, the Subject Vehicle was manufactured b y Audi AG (“Audi”), Ingolstadt, Federal Republ ic o f Germa ny. Peters moved to compel VWGoA to produce document s related to the design and manufacture of the vehicle and its comp one nts , including the rearview mirror, urging that the relev an t documents were wi thin VWGoA’s poss essi on, custody, or cont rol or that VW GoA had the right, authori ty, or ability to obt ai n th e documents from its non

- party parent, Volkswagen Aktiengesellschaft (V WAG ). The trial court conducted a hearing on Peters’s motion to compel on J un e 9, 2021 , but it ultimately continued the m atte r to al low Peters the opportunity to supplement
h er motion with additional documents explaining the relationship between
VWGoA , VWAG, and Audi AG

. Peters supplement ed her motion to compel on Augu st 1 9, 2021. While the m otion to compel was pending , a ppe llee s moved for traditional summary judgment a s t o all of Peters’s claims on the grounds that the replacement5

of the windshield by Auto Glass was the sole proximate cause of Peters’s injur ies. 1 Appellees also argued that Pe ters had presented no evidence to sup port he r strict product liability , negligence, or warranty claims

. Appellees further argued that Peters could not meet the elements necessary to recover under the DTPA and tha t res ips a loquitur did not apply in the pre sent case. The trial court held a he aring o n the summary judgment motion on August 25, 2021 and ultimately granted the motion in its entirety on August 31, 2021

. Peters appea ls. Motion to Compel In her first issue, Peter s contends that the trial court err ed in denying her motion to compe l VW GoA to produce certain design, marketing , and manufacturing documents relating to the vehicle . In response, VWGoA argues that the trial court never ruled on the motion and thus no error was p reserved for our

rev iew

. A. Lack of Ruling on Discovery Motion In r eviewin g the record, we agree with VWGoA that the trial court never rule d on the m otion to compel. In fact, following arguments from both parties at

1 Appellees also moved for summary judgme nt on Peters’s seatbelt and airbag claim s and claims for gross negligence , but Peters later acknowle dged that she was no longer pursuing these cl aims

.6

the motion to compel hearin g, the trial co urt specifically def erred ruling on the motion to give Peters an opportu nity to supplement: I’m just going to ask that you supplement and I’ll just g o ahead and

– and reset

– reset this hearing until I give you time to supplement to see i f you can provi de further information

– if

– further briefing and any other addi tional evidence you’d like to provide based on what has been presented today. More specifically, the trial court urged Peters to supplement [what’s in] your record with some of the things t hat actually describe the relationship whether that’s through a c orporat e rep or importer agreement or these other things that you talk about or sort of lend the idea that, you know, that they do

– obviously access is not enough and, you kno w, I think oppo sing counsel doesn’t

– do esn’t necessarily agree with this re lati onship idea. But you can also supplement the record on that as well, provide additional briefing[.] Ultimately , the trial court concluded the motion to compel hearing with the following:
We ll, I’m basically just continu ing this hearing until such tim e as renoti ced by hearing, oral hearing, or submission which I hope will provide some more supplemental evidence because I do think it’s

– while I understand [Peters’s counsel’s] f rustration, I d o think he has the burden of p roof and while he’s tried to ad dres s it, i t may not be sufficient at least at this point and it may be help ful to see if he can further supplement if he intends to pursue this seriously. At the subsequent summ ary judgment he aring on August 25, 2021 , the trial

cou rt again deferred ruli ng o n the m otion to compel

. Peters’s counsel confirmed there wo uld be no ruling in the following exchange : [Counsel for Peters]: Your Honor, so, on the Motion to Compel, should w e just leave it be just to see what7 you’re going to de cide on [the summary j udgm ent mot ion] before we set a hearing to continue the Motion to Compel?
THE COURT: Yes, sir. Contrary to Peters’s arguments, nothing about the foregoing indicates that
the t rial court rule d on the motion to compel. Instead, the trial court continued the hearin g to allow Peters time to supplement he r motion with additional case law and documents supporting her contention that VWGoA could be compelled to produce documents maint ained by V WAG

. Further, Peters’s supplement to the mot ion, filed on August 1 9, 2 021, ac knowledges that “[a]t the conclusion of the May 24,
2021 2 hearing on Plaintiff’s Motion to Compel production of key documents relating to the rearview mirror that inj ured Plaintiff in a single car crash, the Court asked Plaintiff to supp lement h er M otion w ith additional support.” Peters’s supplement does no t suggest that the trial court made any final ruling at the hearing. It was only after the trial court ruled again st Peters on summa ry judgment that she took the position that the motio n to com pel had bee n denied.
B. Analysis To preserve error on a discovery dispute, an appellant must obtain a ruling from the trial court on the discovery matter. U. Lawrence Boze’ & Assoc s . , P.C. v.
Harris Cnty. Appraisal Dist. , 368 S.W.3d 17, 32 (Tex. App.

— H ouston [1st Dist.]

2 The record reflects that the hearing wa s held on June 9, 2021 , not May 24, 2021

.8

2011, no pet.) (citin g Goodchild v. Bombardier

- Rotax GMBH Motorenfabrik , 979 S.W.2d 1, 6

– 7 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied) (“The
statement of fact s from the hearing indicates appellants raised their complaints [regardi ng a mo tion to com pel interrogatories an d a response to a motion for production] at the hearing, but they did not obtain a ruling from the trial court on the motion and they did not ob ject to the trial court’s failure to make such a ruling.”) )

. This compor ts with Tex as Rule of Appellate Procedur e 33.1(a) , which requires, to preserve error : (1) a complaint to the trial court by timely request, objection , or motion , stating the grounds fo r ruling with suff icient specificity to make the trial court aware of th e compl aint ; and ( 2) a ruling on the req uest, objection, or motion. T EX
. R. A PP
. P. 33.1(a). Here, Peters never secure d a ruling on her motion to compel. In fact, her counsel expressly confirme d with the trial court at the summary judgment hearing that a dec ision on the mot ion to compel would be postponed until after the summary judgment ruling. The record does not reflect that Peters ever attempted to reset the motion to compe l for hearing or o therwise bring it to the court’s attention following t he summ ary judgment hearing

. Several of our sister courts have held that failure to obtain a ruling on a motion to compel discovery prior to a ruling on summary judgment waives any

er ror pertaining to the discovery issue. For example, i n Gupta v. Midland Funding9

LLC , No. 04

- 13

- 0022 7

- CV, 2014 WL 3611517 (Tex. App.

— San Antonio July 23, 2014, no pet.) (mem. op.) , the appellant argued that the trial court erred in granting summary judgmen t before ruling on her pending motion to compel further discovery. See id. at *1

. Th e San Antonio Co urt of Appeals determined that the appellant failed to preserve her complaint for revi ew because she did not attempt to set her discovery mo tion for hearing or other wise obtain a ruling from the trial
court before it ru led on summary ju dgme nt

. Id. The cour t also noted that during the summary judgment hearing, the appellant “did not make any reference to a pending motion for continuance [of the summary judgment hearing ], and the trial court did not rule on either a motion to compel or a m otio n for continuanc e.” Id. Likewise , in Corona v. Pilgrim’s Pride Corp. , 2 45 S.W.3d 75 (Tex. App.

— Tex arkana 2008, no pet.) , the Texarkana Court of Appeals held that “the failure ‘t o obtain a pre

- trial ruling on any discovery dispute e xisting before commen ceme nt of summary ju dgment proceedings constitutes a waiver’ of any claim for relief.” Id. at 84 (quoting White v. Cole , 880 S.W.2d 292, 296 ( Tex. App.

— Beaumont 1994, wri t denied ) ). In Corona , the appellant filed a motion to compel discovery but did not

en deav or to request a hearing or obtain a ruling on the motion from the trial court prior to the summary judgment hearing. Id. At the summary ju dgment hearing, the appellan t complained about the opposing party’s failure to res pond to his10

outstanding discover y re quests , but agai n did not request a ruling on the discovery motion or a contin uance . Id. Here, considering the transcripts of the hearin g s on the motion to compel

a nd the summary judgment motion , and determining that t he trial court never ruled on th e di scovery motion, we hold that Peters has failed to preserve her complaint
regar ding the discovery dispute for our review. See T EX
. R. A PP
. P. 33.1(a); Gupta , 2014 WL 3 611517 , at *1; Corona , 245 S.W.3d at 84. Further, we disagree with Peters that the tr ial court’s October 30, 2021 o rder denying her “Motion for New Trial & Request for Reconsideration of the Court’s Discovery Ruling” somehow pr eserved the issue for our re view. While the motion presupposed that the trial cour t had previously denied the moti on t o compel, nothin g about the October 30, 2021 order substantiates this assumpti on. Rather, the four

- line order summarily denied Peters’s mo tion without any findings of fact or conclusions of law. The order is silent as to whether the trial court ever ru led on the motion. S ee Melawer v. Total Aircraft Servs. , Inc. , No. 01

- 11

- 0060 6

- CV , 2013 WL 485770, at *5 (Tex. App.

— Houston [1st Dist.] F eb

. 7, 2013, no pet.) (mem. op.) ( finding waiver and holding that “[a] postjudgmen t motion is not a timely objection to the lack of a neces sary finding of fact on which evidence is required” where appellant failed to obtain ruling from trial court on statu te of limitations11

defense un til denial of motion for new tria l) (citing Holland v. Wal

- Mart Stores,
Inc. , 1 S.W.3d 91, 94 ( Tex. 1999)).
We overrule Peters’s first issue.

Motion for Summary Judgment Peters’s remaining issues on appeal concern the trial co urt’s grant of final
summary judgment. While not entirely cle ar from her briefing, we presume Peters challenges the gra nt o f summary judgme nt as to the following claims: (1) manufacturing defect, (2) design defect 3 , (3) marketing defect, (4) negligence, (5 ) violations of the DTPA, an d (6) breach of express and impl ied warranties. 4

3 Appellees contend that Peters has not challenge d the gran t of summary judgment as to her design and manufacturing defect claims. Construing Peters’s briefing libe rally, as we must, portions o f her brief discuss ing res ipsa loquit u r do concern its application in the product liability context. Thus, we interpret t his a s a challenge to the trial court’s grant of summary judgment on those claims. See Baumgart v. Archer , 581 S.W.3d 819, 827 n.5 (Te x. App.

— Houston [1s t Dist.] 2019, pet. denied) (citing T EX
. R. A PP
. P. 38.9; T EX
. R. A PP
. P. 38.1; Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989) (“[I]t is our practice to construe liberally points of error in ord er to obtain a just, fair and equitable adjudica tion of the rights of the litigants.”)).

4 Appellees argue th at we ca n affirm summary judgment as to all claims without reaching the merits of the motion because Peters has failed to challenge the tradition al summary ju dgment grounds : that Auto Glass was the sole proximate cause of Peters’s injuries. We do not agree

. While she does not specifically identi fy this point in her enumerated issues, Peters’s brief does address the argument elsewhere, contending th at appellees’ cond uct after Auto Glass ’s replace ment of the windshield is a “new and independent, or supersedin g, cause .” We therefore decline to find waiver and turn to the merits of the no - evidence summary judgment grounds

.12

A. Stan dard of Review We review a trial cour t’s summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment wi thout specifying the grounds for granting the motion, we mu st uphold the trial cou rt’s judgment if any of the grounds a re m eritorious. Beve rick v. Koch Power, Inc. , 186 S.W.3d 145, 148 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied). The motion must stat e the specific grounds relie d upon for summary judgment. Se e T EX
. R. C IV
. P. 166a( c), (i); Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). When reviewing a summary judgment , we must (1) take as true all evidence favorable to the nonmov ant and (2) indulge every re asonable inference and resolve any doubts in the nonmo vant’s favor. Valence Operating Co.
v. Dorse tt , 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott , 128 S.W.3d 211, 215 (Tex. 2003). A party seekin g summary judgment may combi ne in a single motion a request for summary judgment u nder the no - evidence standard with a request und er the tradition al summary judgment standard

. Binur v. Jacobo , 135 S.W.3d 646, 650 (Tex. 2004)

. When a party has sought summar y judgment on both grounds a nd the order does not specify which motion was granted , we typically first review the propriety of the summary judgmen t under the no

- evidence standard. See T EX
. R. C IV
. P. 166a(i); Ford Motor Co. v. Ridgway , 135 S.W.3d13

598, 600 (Tex. 2004); Parker v. V alerus Compression Serv s. , LP , 365 S.W.3d 61, 65 (Te x. App.

— Houston [1st Dist.] 2011, pet. denied). If the nonmovant fails to meet its burden to adduce evidence in response to the no

- evidence motion, there is no need to addr ess the challenge to the tra ditional motion because it necessarily fails. Merriman v . XTO Energy, Inc. , 407 S.W.3d 2 44 , 2 48 (Tex. 2013 ). 5 To prevail on a no - evidence motion for summary judgment , the movant must establish that there is no evidence of one or more essential elements of a claim on which the adverse party would have the burden of proof at trial. T EX
. R. C IV
. P

. 166a(i); LMB, Ltd. v. Moreno , 201 S.W.3d 686, 688 (Tex. 2006). To defeat

a no - evidence motion, the nonmovant must produce at least a scintilla of evidence raisin g a genuine issue of material fact as to the challenged elem ents. Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017) . “More than a scintilla of evidence exists if the evidence ‘rises to a level that wo uld enable reasonable and fa ir

- minded people to differ in their conclusions.’” Essex Cra ne Rental Corp. v. Carter , 371 S.W.3d 366, 376 (T ex. App.

— Houston [1s t Dist.] 2012, pet

. denied) (quoting Merrell Dow Pharm ., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)).

5 As discussed below, b eca use we h old t hat Peters failed to meet her burde n with respect to the no

- evidence grounds for summary judgment, we do not reach the traditional summary judgment.14

B. Marketing Defect Cl aim s 6 Regarding her marketing defect claims, Peters alleges that although the vehicle’s repair manual require s re placement of a c lip in the rearview mirror following any windshield replacement, Auto Glass did not rep lace the clip on her mirror when it repl aced the windshield. She further contends that “failure to w arn of the need to replace the clip is a marketin g de fect.” Appellees moved for no

evidence summary judgment as to the marketing defect claims. 1. Applicable Law T his court has previously identified five factors necessary to establish a marketing defect clai m: (1) a risk of harm, either inherent to the prod uct or arising from its intended or foreseeable use; (2) at the time the product is marketed, the product suppl ier knows or reasonably should fore see the risk of harm ; (3) the product has a marketing defect ; (4) the failure to warn or provide instructions rend ers the product unreasonably dangerous to the product’s ultimate user or consumer; and (5) the failure to w arn or instruct causes the user’s i njury. Ranger Conveying & Supply Co. v. Davis , 254 S.W.3d 47 1, 480 (Tex. App.

— Houston [1st Dist.] 2007, pet. d enie d).

6 Peters does not specifically challenge the trial court’s grant of summary judgment as to h er marke ting defect claims in her enumerated iss ues on appeal; however, she does address this argument in the b ody of her brief. See Weeks Marine , Inc . v. Garza , 371 S.W.3d 157, 162 (Tex. 2012) (“An appellant can preserve error in the body of their ap pella te brie f, eve n if it is not separately listed in the notice of appeal or presented as an issue in the brief.”) (internal quotations and citations omit ted).15

2. Analysis Pe ters’s marketing defect claim is predicated on the assumption that a failure to replac e the clip caused the mirror to detach d uring the accident. But Peters has presented no evid ence, from an expert or otherwise, to support this assumpt ion. When asked why Audi recommends replacing the clip , VWGoA ’s corporate representative testified : “I don’t know why they provide those i nstructions. They don’t go into detail . That would be inform ation that would need to . . . be asked from Audi AG.” 7 Fu rthe r, Peters’s only expert, Dr

. Mariusz Ziejewski , testified that he was not “involved in [the] a nalysis [of the clip] at all” because design was “not [his] issue.” Additionally , Peters has not established that any warnings or instructions were inadequate

. Sh e has not presen ted any expert testimony or opinions as to the ade quacy of the vehicle’s warnings. Peters acknowledges that the repair manual advis es to “[a]lways replace clips

- 2

- and

- 5

- for the interior r earview mirror if removed.” It is unclear wha t ot her instructions or warnings Peters alleges should have been provided , or where she would have a pp ellees place additional warnings

. She has likewis e not demonstrated that if additional instructions or warnin gs were present, she would not have been inju red. See Goodyear Ti re & Rubber Co. v.
Rios , 143 S.W.3d 107, 116

– 18 (Tex. App.

— San Antonio 2004, pet. denied)

7 Peters did not name Audi AG in her lawsuit.16

(concluding expert testimony was required to establish marketing defect where plaintiff did not offer proposed warning and failed to otherwise dem onst rate that absenc e of warning or instruction on tire’s side wall rendered it unreasonably dangerou s to ultimate user or consumer; jury could not de termine without expert testimony which warnings, among many, should be printed on tire); see also Ramsey v. Cat erpillar Inc. , N o. 12

- 16

- 00155

- CV, 2017 WL 1426793, at *3 (Tex. App.

— Tyler Apr . 19, 2017, pet. d enied) (mem. op.) ( affirming grant of no

evidence summary judgment on marketing defect claim where there was no evidence of inade quate warning or that alleg ed f ailure to warn c aused injuries; “In situations where instructions or warnings pertine nt to the proper operation, mounting, maintenance , and repair of the produc t may be necessary, expert testimony is required.” ).
We therefo re affirm the trial court’s gran t of summary jud gment as to Peters’s marketing defect claim s . C. DTPA Claim s In her thi rd issue, Peters challenges the trial court’s gra nt of summary judgment as to her DTPA claims. Appellees moved for no

- evidence summary judg ment as to these claims , arg uing that Peters cou ld not meet either of the two exceptions to the general rule that the DTPA does not apply to claims arising from alleg ed bodily injury or mental anguish

.17

1. Applicable Law “The DTPA grants consumers a cause of action for false, misleadin g, o r deceptive acts or practices.” Amstadt v. U.S. Brass Corp. , 919 S.W.2d 644, 649 (Tex . 1996). To prevail on her DTPA claim s , Peters mu st prove that : (1) she is a consumer; (2) appellees can be sued under the DTPA; (3) appell ees committed some wrongful act under the DTPA; and (4) appellees’ conduct was a producing cause of her damages. See Hudspeth v. Enter. Life Ins. Co. , 358 S.W.3d 373, 388 (Tex. App.

— Houston [1st Dist.] 2011, no pet.) (citing T EX
. B US
. & C OM
. C ODE § 17.50(a); A mstadt , 919 S.W.2d at 64 9). As appellees co rrectly point out, section 17.49(e) of the DTPA expressly provides th at “ [ e ] xcept as specifically provided by Subsecti ons (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the inflicti on of mental anguish.” T EX
. B US
. & C OM
. C ODE §
17 .49(e). On appeal, P eters argues that the exception found in section 17.50(b) applies, which permits recovery of mental anguish damages if the trier of fact determin es that the defendant’ s co nduct was commit ted “knowingly” or “intentionally.” I

d. § 17. 50(b)(1). 8

8 Peters does not argue on appeal that the sect ion 1 7.50(h) excep tion applies. See T EX
. B US
. & C OM
. C ODE § 17.50(h).18

2. Anal ysis Under the DTPA, “knowingly” means “actual awa reness, at the time of the act or practice complained of, of the falsity, deception, or unfairne ss of the act or practice givi ng rise to the c onsumer’s claim

. . . but actual awareness may be inferred whe re objective manifestations indicate that a person acted with actual awareness.” Id. § 17.45(9). However, “[a]ctual awareness does not mean merely
that a person knows what he is doing.” Daughert y v. Jacobs , 187 S.W.3d 607, 618 (Tex. App.

— Houst on [14th Dist .] 2006, no pet.). Instead, “it means that a perso n knows what he is doing is false, deceptive, or unfair.” Id. Stated differently, “a person must think to himself at some po int, ‘Yes, I know th is is false, deceptive, or unfair to him, but I’m going to do it anyway.’” St. Paul Surplus Lines Ins. Co., Inc. v. Dal

- Worth Tank Co., Inc. , 974 S.W.2d 51, 54 (Tex. 1998). Actual awareness goes beyond conscious indifference to the welf are or rights of ano ther. Daugherty , 187 S.W.3d at 618. Appellees contend that Peters presented no evidence that they had actual awareness of any problems with the vehicle or its components at the time of its sale
to Peters. In supp ort of their argument, a ppel lees direct us t o Prudential Ins urance Co. of Americ a v. Jefferson Associat es, Ltd

. , 896 S.W.2d 156 (Tex. 1995). In that case, the plaintiff sued the seller of a commercial building pursuant to the DTPA after learning that the building contained asbest os. See id

. at 159. Though the19

plaintiff agreed to purchase the building “as is,” the jury found for the plaintiff, and

t he court of appeals affirmed. Id. at 160. In reversing the court of appeals and rendering judgment in f avor of the seller, the Texas Su prem e Court held the following: While there may be evidence tha t [the seller] should have suspected the presence of asbe stos in the Jefferson Building, there is no evidence that [the seller] actually knew of the asbestos. A seller has no duty to disclose fact s he does not kn ow. Nor is a seller liable f or failing to di sclose what he only should have known. Even under the DTP A, a seller is not liable for failing to disclose information he did not actually know. Id. at 162 (internal citations omitted). Alt houg h Peters claims that “ [a] ppellees marke ted and s old the Audi A8 as a CPO car that had been inspected and was supposed to be like new and safe,” she
has failed to demonstrate that appellees had actual awareness tha t the vehicle was not, in fact, “like n ew a nd safe.” More s pecifically, Peters h as presen ted no evidence that appellees knew that the windshield had b een replaced , and nevertheless , endeavored to deceive her

. 9 See St. Paul Surplus Lines Ins. Co

. , 974

9 In her response to the summary judgment mo tion, Peters included a photograph of th e windshield sticker . On appeal, Peters argues that the sticker “show[s] it is not a factory

- installe d win dshield .” She also contends that from this, “Sew ell was aware or reasonably should have been aware that the wi ndshield on the CPO Audi A8 had been rep laced by a non

- Audi dealer.” However, Peters did not produce any evidence or testimony explaining the mark ings on the s ticker or how one could conclude fr om the sticker alone that the windshield was not factory insta lled or installed by a n authorized deale r .20

S.W.2d at 53

– 54

. A statement is not fraudule nt u nless the speake r knew it was false when made or the speaker made it recklessly without knowledge of its tr uth. Prudential Ins. Co. , 896 S.W.2d at 163. Because Peters failed to present evidence that appellees acted “ knowingly ”

or “ intentionally ” as req uire d by section 17. 50(b) of the DTPA , she cannot

overcome the DTPA’s general exclusion of claims arising from bodily injury or mental anguish.
W e overrule Peters’s third issue.
D. Breach of Warranty Claims In her fourth issue, Peter s challenges the trial co urt’ s grant of summa ry judgment as to her breach o f implied and express warranty claims. Appellees sought no - ev idence summary judgment on these claims, arguing that Peters did not provide the requisite pre

- suit notice. See T EX
. B US
. & C OM
. C ODE § 2.607 (c)( 1)

. On appeal, Peter s contends that section 2.607 of the Texas U niform Commercial Code (UCC) does not require p re - suit notice in this case. 1. Applicable Law To maintain an action for a breach of warranty, a buyer must notify the seller that a breach occurre d wi thin a reasonabl e time after he discovers or s hould have

Further, Peters did not present any testimony interpreting the “Certified pre

- owned Program Manual,” e xplaini ng how Peters’s windshield failed to meet the requirements of the CPO certification process.21

discovered any breach. See id. (“Whe re a tender has been accepted

. . . the buyer must within a reasonable time after he discovers or should have dis covered any breach notify the seller of breach or be barred from a ny remedy[.]”). The burden of alleging and proving proper notice is on the bu yer. U.S. Tire

– Tech, Inc. v. Boeran,
B.V

. , 110 S.W.3d 194, 200 (Tex. App.

— Houston [1st Dist.] 2003, pet. den ied) (holding that notice requirement is better de scri bed as condition precedent f or buyer ’ s cause of action than affirmative defense). Failure to notify the seller of the breach, thereby allowing the seller an opportunity to cure, bars recovery for breach of warranty. Lochinvar Corp. v. Meyers , 930 S.W.2 d 18 2, 189 (Tex. App

. — Dallas 1996, no writ). While the issue of notice is typically a que stion of fact, it becomes a question of law i f ordinary minds could not differ about the proper conclusion to be drawn from the evidence. Id. at 190; Carroll Instrumen t Co . v. B.W.B. Cont rols,
In c. , 677 S.W.2d 654, 657 (Tex. App.

— Houston [1st Dist.] 1984, no writ). 2. Analysis Peters first contends th at the section 2.607 notice requirement is inapplicable because her vehicle was a total loss ; thus, appellees could not “c ure ” any breach.
Pet ers does not cite to, nor have we located, any legal authority to sup port this contention. Further, s ection 2.607 does not contain any such exception.
W e note that the Amarillo Cour t of Appeals rejected a similar argument in
Bar o cio v. Gen eral Electric Co

. , No. 0 7

- 12

- 00311

- CV, 2014 WL 31255 (Tex.22

App.

— Amarillo Jan. 3, 2014 , no pet.) (mem. op.)

. That case concerned an electrical fire, potentially caused by the blower motor in the appe llants’ heating and air conditioning system. See id

. a t *1

. Though the fir e occurred in late 2008, and a report identified General Elect ric’s (GE) motor as the cause of the fire in January 2009, the appellants did not provide notice of the alleged b reach to GE until they amended their suit to add GE as a part y in October 2011. I d. GE moved for summary judgm ent , arguing th e appellants failed to provide the requisite notice under section 2.607 (c)(1) , and the trial court granted the motion. Id. at *2

. In affirming the trial court’s order, the court of appeal s hel d:
U nder these circu mstances, “ [ i ] t would be unt enable to allow a buyer, such as [the appellants ], to recover damages for breach of warranty from a remote seller or manufacturer who was never ev en made aware that the product in question was defective and w ho, consequently, ne ver had an opportunity to re medy the defect to the buyer’s satisfaction before litigation was commenced or even to inspect the product to ascertain if indeed a defect existed .” Id. at *5 (emphasis added) (quoting Wilcox v. Hillcre st Me m’l Park of Dall

. , 6 96 S.W.2d 423, 424

– 25 (Tex. App.

— Dallas 19 85), writ ref’d n.r.e. , 701 S.W.2d 842 (Tex. 1996) (per curiam)). In so holding, the court explicitly overruled the appellants’ arg ument that notice under section 2.607 should be excused “becaus e,

a fter the fire oc curred, notice of the alleged defect would be a useless act.” Id. at *5 n.3. The court noted that “ [ t ] he statute contains no such exception and the23

[plaintiffs] cite no rel eva nt legal authority for this proposition.” Id. For the same

re ason s, w e reject Pet ers’s futility argument. See id. Peters fu rther argues that “the UCC’s notice provision does not apply to personal injury claims.” Peters relies on Connick v. Suzuki Motor Co. , 675 N.E.2d 584 (Ill. 1996) 10 , which she claim s was “cited ge nera lly with approva l” by this
court in U.S. Tire

- Tech , 110 S.W.3d at 202 . Our decision in U.S. Tire

- Tech did not cite Connick for the purported rule asserted by Peters; instead, we cite d Co nnick in holding that notice to the marketer of Tire

- Tech’s produc t di d not “satisfy [ the plaintiff’s] notice require ment toward Tire

- Tech.” Id . Further, U.S. Tire

- Tech did not involve personal injury claims. Lastly, comment 5 to sectio n 2. 607 contemplates a notice requirement in
perso nal injury cases: Under this Artic le v arious beneficia ries are given rights for injuries sustained by them because of the seller’s breach of warranty. Such a beneficiary does not fall within the reason of the present section in regard to discovery of defe cts and the giving of notice within a r easonable time a fter acceptanc e, since he has nothing to do with acceptance. However, the reason of this section does extend to requiring the beneficiary to notify the sel ler that an injury has occurred. What is said above, with regard to the extended time for reasonable notification f

rom the lay consumer after the injury is also applicable here; but even a beneficiary can be properly held to the

10 Peters does not cite any Texas case law to supp ort her argument. We are not bound to follow decisions from other jurisdictions. See Penrod Drilling Corp. v. Wi lliams , 868 S.W.2d 294, 296 (Tex. 1993) (h olding Texas courts are only obligated to follow decisions by higher Texas courts and United States S upre me Court).24

use of good faith in no tify ing, once he has had time to become aware of t he legal situation

. T EX
. B US
. & C OM
. C ODE § 2.607 cm t. 5 (emphasis added); see also Ibarra v. Nat’l Const. Rentals, Inc. , 199 S.W.3d 32, 37

– 38 (Tex. App.

— San Antonio 2006, no pet.) ( discussing comment 5)

. Follo wing this logic, if a beneficiary must prov ide notice to a seller of any perso nal injury resulting from the sell er’s breach of warranty , then a buyer must as well. See T EX
. B US
. & C OM
. C ODE § 2.607 cmt. 5 ; Ibarra , 199 S.W.3d at 38

. We overrule Peters’ s fou rth issue.
E. Res Ipsa Loquitur As explained e arlier, Peters did not receive a ru ling on her motion t o compel disco very from VWGoA and therefore did not preserve any error regarding her motion to compel

. Peters acknowledges that she does not have the necessary manufact uring or design documents to support her pro duct liability or negligence claims. Further , Peters’s only expert

— Ziejews ki, an accident reconstructionist and biomechanics expert

— specifically testified that he was “not designated as a design expert” and t hat design was “not [his] issue.” He further tes tified that he “[is] not a design expert [in this case].” Thus, Peters relies on the doctrine of res ipsa loquitur to save her negligence and strict product liability design and manufacturing defect cla ims f rom appellees’25

no - evidence motion for summary jud gment. 11 Specifically , Peters contends that

“ there is no reasonable explanation for the rear

- view mirror malfunction and dislodging, which caused [her] injuries, other than the negligence or other miscon duct of Defendants .” 1. Applicable Law Res ipsa loq uitu r is a rule of evide nce whereby negligence o f the alleg ed wrongdoer may be inferred from the mere fact that the accident happened, provided that (1) the character of the injury is such that it would not occu r without negligence; and (2) the instrumenta lity which caused the in jury is shown to have be en under th e management and control of the defendant. Sanders v. Naes Central,
Inc. , 498 S.W.3d 256, 258 (Tex. App.

— Houston [1st Dist.] 2016, no pet.) (citing
Jone s v. Tarrant Cnty. Util. Co. , 638 S.W.2d 862, 865 (Tex. 1982 ) )

. The effect of successfully in voking the doctrine of res ipsa loq u itur is that a plaintiff can survive

no - ev ide nce procedural challenges : “ [H] e has produced some evidence of the de fendant’s negligence.” Mobil Chem. Co . v. Bell , 517 S.W.2d 245 , 251 (Tex. 1974) . Unless the plaintiff can demonstrate both factors, it cannot reasonably be

11 Peters’s negligence claims are intertwined with her strict liability claims. Peters’s S econd Amended Petition alleges that “ Defendants were negligent in designing, manufacturing, installing, inspe cting, testing, and servicing the Audi A 8, a nd its component parts.”
A t the summary judgment hearing, Peters clarified that her design and manufac turing defect claims applied only to VWGoA, not Sewell.26

inferred from the circums tan ces of the accident that the defendant was negligent. Sanders , 498 S. W. 3d at 258. 2. Analysis Even assuming without deciding that P eter s has established the first factor,

we never theless conclude that Peters has failed to produce any evidence demonstrat i ng the second factor: that the injury

- causing instrumentality (here, the rearview mirror) was under the “mana gement and control” of a ppel lees. The Texas Supreme Court has explained that the “control” requirement is not a rigid rule that the instrumentality mu st have always been in the defendant’s possession or even that it mus t have been in the defendant’s contro l at the time of the inj ury. It is sufficient if the defendant was in co ntrol at the time that the negligence inferable from the first factor proba bly occurred , so that the reasonable probabilities point to the defendan t and support a reasonable inference that he was the negligen t pa rty. Bell , 517 S.W.2d at 25 1 (emphasis add ed). Here, however, we cannot reaso nab ly infer that either of the appellees w as the negligent party bec ause (1) the accident occurred after the vehicle left appellees’ control , and (2) Auto Glass was in cont rol at the time the alleged negligence occurred. See id. Peters hersel f summarized her theory of the case in her response to appellees’ motion to design ate Auto Glass as a responsible third party: This is a product liability case in which Plaintiff Folush o Pe ters suffered severe physical injuries, incl uding perma nent eye injuries and27

facia l injuries resulting in 5 surgeries to repair the damage to her ey e and facial injuries, when the rear

- view mirror on her 2014 Audi A

- 8L came off its base on the windshie ld i n a single

- car crash and struck her in the f

ace w ith gr eat force. . . . The car’s windshield, which had been replaced by Auto Glass some months befo re Plaintiff purchased the A8 as a “Certified Preowned vehicle” (“CPO”) from Defendant Sewell in July 20 17, did not suffer any cracks or other visible d amage . Th us, it is undisputed that t he rear

- view mirror was the cause of Plaintiff’s injuries. (empha sis in original). As outlined by Peters in the foregoing, Auto Glass

— not appellees

— controlled the vehicl e at the time the alleged negligence oc curred

— th e time of the windshield replacement. Auto Glass replaced the windshield “months before” Peter s purch ased the vehicle from Sewell, and long after the vehicle left the control of VWGoA in 2014. Thus, appellees wer e not “in control at the time th at the negli gence inferable from the first fact or [of the res ipsa loquitur test] occurred,” and res ipsa loquitu r is inapplicable to Peters’s claims against appellees. See Bell , 217 S.W.2d at 25 1 ; Disc

. Tire Co. of Tex. , In c. v. Cabanas , 55 3 S.W.3d 566, 570 , 571

– 72 ( Tex. Ap p.

— San Antonio 2018, pet. denied) (holding that “a lapse in the defendant’s control may make the [res ipsa] doctrine inapt”; court concluded res ipsa loquit ur did not apply where tire detached two days after defend ant rotated vehi cle’s tires).
Pete rs has failed to produce any evidence of appellees’ negligence or a design or manufacturing defect , and she has not shown a res ipsa loquitur inference28

applies

. We therefore overrule Peters’s second issue and affirm the t rial court’s
gra nt of no

- evidence s ummary judgment as to those claims

. Conclusion Having found no error in the trial court’s grant of summ ary judgment in favor of a ppellees, w e affirm the order of the trial court.

Amparo Guerra Justice
P anel consists of Justices Kelly, Go odman, and Guerra.