MEMORANDUM OPINION

No. 04-09-00730-CV

AML MOTORS, INC.,

Appellant

v.

Da’mon THOMAS,

Appellee

From the County Court at Law No 2, Bexar County, Texas

Trial Court No. 347193

Honorable Linda F. Penn, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Marialyn Barnard, Justice

Delivered and Filed: September 29, 2010

REVERSED AND REMANDED

Da’Mon Thomas sued AML Motors, Inc. for breach of contract, fraud, and rescission, 

asserting Thomas paid AML for extended service or warranty coverage on a car that was 

ineligible for such coverage. Thomas moved for summary judgment on his breach of contract 

claim, and AML filed a counter-motion as to all of Thomas’s claims. The trial court granted 

Thomas’s motion and denied AML’s motion. On appeal, AML contends the trial court erred in 

granting Thomas’s motion and denying AML’s motion because: (1) the evidence established 
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Eagle Warranty Corporation (“Eagle”) approved the warranty coverage for Thomas’s car; and 

(2) Thomas’s own actions voided the warranty coverage. We reverse the trial court’s judgment 

and remand the cause to the trial court for further proceedings.1

FACTUAL BACKGROUND

On June 24, 2006, Thomas purchased a car from AML. Pursuant to the Retail Buyers 

Order signed by the parties, Thomas purchased extended service for $500. The Retail Buyers 

Order listed the car’s mileage as 177,302 miles.

To purchase the extended service, Thomas signed an application provided by AML for a 

Liberty Service Contract. The application listed the car’s mileage as 174,302 miles. The Liberty 

Service Contract terms stated the application would not provide extended service or warranty 

coverage until received and marked accepted by Eagle. The terms further stated that any vehicle 

with more than 175,000 miles was not eligible to be covered under the Liberty Service Contract.

On July 15, 2006, the engine of the car Thomas purchased from AML broke down and 

ultimately seized. On July 20, 2006, Eagle accepted Thomas’s application for warranty 

coverage. The warranty card Eagle sent to Thomas listed the mileage as 174,302 miles. After 

Eagle denied Thomas’s claim for warranty coverage, Thomas sued AML, asserting claims for 

breach of contract, fraud, and rescission.

STANDARD OF REVIEW

The standard of review for a summary judgment is well established: (i) the movant for 

summary judgment has the burden of showing there is no genuine issue of material fact and it is 

entitled to summary judgment as a matter of law; (ii) in deciding whether there is a disputed fact 

 1 We note that the trial court’s judgment purported to be final even though Thomas only moved for summary 

judgment as to one of his claims. Because the trial court’s order stated that the judgment “is final for all purposes 

and fully appealable,” we have jurisdiction to consider this appeal even though the trial court’s order did not dispose 

of Thomas’s fraud and rescission claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204-06 (Tex. 2001).
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issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; 

and (iii) every inference must be indulged in favor of the nonmovant and any doubts resolved in 

his favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review a 

trial court’s summary judgment de novo. Traveler’s Ins. Co. v. Joachim, 315 S.W.3d 860, 862 

(Tex. 2010). When both sides move for summary judgment, as they did here, and the trial court 

grants one motion and denies the other, reviewing courts consider both sides’ summaryjudgment evidence, determine all questions presented, and render the judgment the trial court 

should have rendered. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415-16 (Tex. 2000).

DISCUSSION

AML contends Thomas’s receipt of a warranty card from Eagle precluded summary 

judgment in Thomas’s favor. AML contends that same evidence conclusively established its 

right to summary judgment by negating the breach and damages elements of Thomas’s claim. 

Thomas responds that the evidence conclusively established the car he purchased was ineligible 

for coverage under the Liberty Service Contract; accordingly, the trial court properly granted 

summary judgment in his favor, awarding him the amount he paid for the coverage, i.e., $500, as 

damages. We disagree with both parties.

Although the Liberty Service Contract did provide that cars with more than 175,000 

miles were ineligible for coverage, a genuine issue of material fact existed as to the exact 

mileage of the car Thomas purchased. The Retail Buyers Order listed the mileage as 177,302 

miles, but the application to Eagle listed the mileage as 174,302 miles. Gary Klasing, an 

employee of AML, was asked during his deposition whether he thought “the mileage listed on 

the retail buyer’s order is the correct mileage” or whether “the correct mileage is what is written 

on the application.” Klasing responded, “I would really need to see the title work on the car.”
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Thomas asserts in his brief that the summary judgment cannot be reversed on this basis 

because AML did not raise this fact issue as a basis for defeating the summary judgment in his 

response. This assertion ignores that Thomas was the movant and had the burden to establish his 

right to summary judgment on the issues presented to the trial court by conclusively proving all 

elements of his cause of action. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 

1999). AML, as the non-movant, was not required to file a response to defeat Thomas’s motion 

unless Thomas conclusively established his claim. Wheeler v. Greeen, 157 S.W.3d 439, 442 

(Tex. 2005). “Summary judgments must stand on their own merits.” Rhone-Poulenc, Inc., 997 

S.W.2d at 223. “Accordingly, on appeal, the nonmovant need not have answered or responded 

to the motion to contend that the movant’s summary judgment proof is insufficient as a matter of 

law to support summary judgment.” Id. “On appeal, the movant still bears the burden of 

showing that there is no genuine issue of material fact and that the movant is entitled to judgment 

as a matter of law.” Id. In this case, Thomas failed to conclusively establish his claim because 

the summary judgment evidence, including Klasing’s deposition excerpt which was attached to 

Thomas’s motion, failed to conclusively establish that Thomas’s car was ineligible for warranty 

coverage. 

AML contends that summary judgment should have been granted in its favor because 

Eagle sent Thomas a warranty card and Thomas admits in his brief that Eagle denied Thomas’s 

claim for reasons other than the mileage exclusion. We initially note that no summary judgment 

evidence was submitted to establish the basis upon which Eagle denied coverage. Moreover, no 

summary judgment evidence was presented to conclusively establish that Eagle would have 

provided Thomas the warranty coverage if the car’s mileage had exceeded 175,000 miles. 

Although Eagle could have waived the exclusion, no summary judgment evidence was presented 
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to conclusively establish that Eagle did so in this case. If the car’s mileage exceeded 175,000 

miles and Eagle would not have provided the warranty coverage based on the car’s ineligibility, 

then fact issues remain with regard to whether AML breached the Retail Buyers Order by failing 

to provide the extended service coverage it had sold to Thomas.

AML finally contends that summary judgment should have been granted in its favor 

because Thomas’s deposition testimony established that he continued driving the car after he was 

on notice of potential engine problems which would have provided an additional basis on which 

Eagle could have denied Thomas’s claim. AML contends this would conclusively negate the 

damages element of Thomas’s cause of action. This contention ignores, however, that Thomas’s 

claim is for a breach of the Retail Buyers Order based on AML’s failure to provide Thomas with 

extended service coverage. If AML breached the agreement by failing to provide Thomas 

coverage, then the damages would be the $500 Thomas paid for coverage he never received. 

Evidence that Thomas would have been denied coverage under a warranty that he never received 

is immaterial to this issue.

CONCLUSION

The trial court’s order is reversed, and the cause is remanded to the trial court for further 

proceedings.

Marialyn Barnard, Justice