In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00185-CV
LANCE BRANDON LOUDDER, 2L FARMS, A TEXAS PARTNERSHIP, AND TERRI LOUDDER, APPELLANTS
V.
CROP QUEST, INC., APPELLEE
On Appeal from the 242nd District Court Castro County, Texas Trial Court No. B9355-1108, Honorable Edward Lee Self, Presiding
July 8, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.1
Lance Brandon Loudder, Terri Loudder, and 2L Farms appeal from a judgment
denying them recovery against Crop Quest, Inc. The former had sued the latter
asserting causes of action sounding in deceptive trade practice, fraud, breach of
contract and negligence. Crop Quest filed two “no evidence” motions for summary
judgment, which motions the trial court granted. The Loudders and 2L Farms contend
before us that the decisions were wrong and summary judgments should not have been
rendered. We affirm.
1 John T. Boyd, Senior Justice retired, sitting by assignment. Standard of Review
The standard of review is discussed in Kimber v. Sideris, 8 S.W.3d 672, 675-76
(Tex. App.—Amarillo 1999, no pet.), and we apply it here. We further note that parties
often include multiple grounds for summary judgment in their motions. When they do
and should the trial court grant the motion without specifying any particular ground upon
which it relied, the appellant has the burden of illustrating why none of the grounds
support the ruling. Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas
2009, pet. denied). Should he not do that, then he failed to prove error. Id.
Background
The dispute arises from the application of Roundup herbicide to white corn
planted by 2L Farms. The decision to apply the herbicide was made by an employee of
Crop Quest, Kirk Aljoe. Crop Quest had been retained by 2L Farms to provide services,
such as advice, reporting, and recommendations, to 2L Farms regarding 2L Farms’
farming efforts during the 2010 calendar year. One aspect of the agreement
encompassed the type of herbicide to apply to the crops growing in an area called Pivot
29. It historically had been planted with yellow corn, a fact about which Crop Quest
knew. However, 2L Farms decided to sow the field with white corn. While the former
type of corn was Roundup tolerant, the latter was not. And, when it came time to select
which herbicide to apply, that selected by Aljoe contained traces of Roundup.2 The
herbicide adversely affected the crop’s growth which then affected crop yield.
2 Allegedly, Aljoe thought that yellow, not white, corn had been sown in the field. Though his selection of herbicide would have been safe for either yellow or white corn, the product was mixed with a small amount of Roundup that remained in the applicator tanks from previous use. Aljoe was informed of the situation but nonetheless approved its application because of yellow corn’s purported resistance to the herbicide. 2 The Loudders and 2L Farms sued Crop Quest. As acknowledged by Brandon
Loudder during his deposition, “the gist of . . . [their] claim is that somehow or another
Mr. Aljoe should have known that . . . [they] . . . planted white corn in pivot 29 and
known that it wasn't Roundup Ready[.]” Aljoe denied knowing and being told that the
crop had been changed from yellow to white corn. Brandon Loudder, however, attested
via deposition both that he had and had not told Aljoe or Crop Quest of the change
before application of the herbicide.
Deceptive Trade Practice Claims—Representations
2L Farms and the Loudders averred various claims against Crop Quest founded
on the Deceptive Trade Practices Act, that is, Texas Business and Commerce Code
§§ 17.41 et seq. (West 2011). They contended that Crop Quest violated § 17.46(b) of
the Act because it 1) represented that goods or services had sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they did not have or that
a person had a sponsorship, approval, status, affiliation, or connection which he does
not; 2) represented that an agreement confers or involves rights, remedies, or
obligations which it did not have or involve, or which are prohibited by law; 3)
represented that a guarantee or warranty conferred or involved rights or remedies which
it did not have or involve; and 4) failed to disclose information concerning goods or
services which was known at the time of the transaction with the intention to induce the
consumer into a transaction into which the consumer would not have entered had the
information been disclosed. They also sued for breached warranties. As previously
mentioned, Crop Quest sought to defeat these claims via a “no evidence” motion for
summary judgment. Via that motion, it questioned the existence of evidence illustrating
each element underlying the allegation. Furthermore, the trial court mentioned no
3 particular ground upon which it acted when granting the motion. Now we are told the
trial court erred. We overrule the issue.
Two summary judgment grounds uttered by Crop Quest are of note here. The
first concerns the nonexistence of evidence illustrating that the Loudders were
“consumers” and the second involves the nonexistence of evidence indicating that the
purported representations underlying the deceptive trade practice claims were made
prior to or contemporaneous with the execution of the service contract.
Regarding the former, Crop Quest alleged that “[t]he November 2, 2009 Service
Contract, which forms the basis of Plaintiffs' DTPA claims, was between Defendant and
Plaintiff 2L Farms. There is thus no evidence that Plaintiffs Brandon Lance Louder and
Terri Louder were ‘consumers' under the DTPA.” In other words, the “consumer” was
2L Farms since the contract was with that entity, not with the Louders individually. We
cannot but interpret this as Crop Quest’s effort to invoke the entity theory of
partnerships recognized in Texas. See In re Allcat Claims Serv., L.L.P., 356 S.W.3d
455, 463-64 (Tex. 2011) (stating that (1) “Texas adheres to the entity theory,” (2) the
legislature “‘unequivocally embrace[d] the entity theory of partnership by specifically
stating . . . that a partnership is an entity distinct from its partners’” in Texas Revised
Civil Statutes Ann. art. 6132b-2.01, and (3) the Texas Business Organizations Code
“plainly provides that ‘[a] partnership is an entity distinct from its partners’”). And, given
that argument, it was encumbent upon the Loudders to address whether being partners
in the 2L Farms partnership qualified them as consumers under the Deceptive Trade
Practices Act even though they did not sign the contract individually. Neither did,
though. Instead, they simply argued that because the definition of “consumer” includes
“individuals” and they were individuals, they therefore were consumers. That is also the
4 same argument raised before us. They again did not address whether members of a
partnership qualified as consumers vis-a-vis a transaction when the transaction is
between the partnership (not the members of the partnership) and a third party.
Because they did not, they failed to illustrate that the trial court could not have granted
summary judgment against the Loudders on their deceptive trade practice claims.3
As for the matter about representations being made prior to execution of the
contract for services, the complaints of 2L Farms pertain to the failure of Crop Quest to
perform as it promised in its contract. For instance, it argued that 1) “the November 2,
2009 agreement made specific representations that Crop Quest would assist 2L Farms
with decisions involving agronomic recommendations that could enhance the yield and
efficiency of 2L Farms' crop production,” 2) “the agreement made a specific
representation that a representative of Crop Quest would maintain personal and written
contact with 2L Farms for the purpose of exchanging information regarding crop
production,” and 3) “the agreement made specific representations that Crop Quest
would maintain records of the production practices and activities for the benefit of 2L
Farms.” Each, actually, was a term of the contract or a promise contained in the
contract, and, according to 2L Farms, they were purportedly false or misleading
because Crop Quest allegedly failed to perform them. Additionally, we were not cited to
anything of record indicating that Crop Quest made any prior or contemporaneous
representations pertaining to those contractual obligations. See Ken Petroleum Corp. v.
Questor Drilling, Corp., 24 S.W.3d 344, 357 (Tex. 2000) (rejecting the argument that
because the contractual indemnity agreement was void, there arose a deceptive trade
practice since there was no evidence that Questor made representations about the 3 Crop Quest raised like arguments against other causes of action asserted by 2L Farms and the Loudders. Furthermore, the argument went unaddressed in each instance. 5 indemnity obligation). Again, the complainant simply cites to the obligations themselves
and posits that because they were purportedly breached, the obligations constituted
false or misleading representations. This is problematic because simply breaching a
contract does not alone give rise to a false, misleading, or deceptive act. Rocky
Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex.
1998); Continental Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 389-90 (Tex.
App.—Texarkana 2003, pet. denied). And, because the purported representations here
were merely the promises constituting the contract, the failure to perform them did not
convert them to misleading, deceitful, or deceptive misrepresentations for purposes of a
deceptive trade practice claim. Continental Dredging, Inc. v. De-Kaizered, Inc., 120
S.W.3d at 389-90 (stating that there was no evidence to support the DTPA claim
because the representation simply concerned the failure to dredge the area to the depth
required by the contract).
We do note that 2L Farms also averred that Crop Quest failed to disclose
information concerning goods or services which was known at the time of the
transaction with the intention to induce the consumer into a transaction into which the
consumer would not have entered had the information been disclosed. The pertinent
transaction is the November 2009 contract whereby Crop Quest agreed to advise 2L
Farms. Yet, to reiterate, the crux of 2L Farms’ complaint involved the misapplication of
Roundup, the supposed failure to disclose the intent to apply Roundup, and the failure
to maintain records and communicate with 2L Farms about the application. None of
that occurred before the execution of the November agreement. Thus, they could not
have induced 2L Farms into entering the transaction.
6 Deceptive Trade Practice—Breach of Warranty
Next, 2L Farms averred that “the following warranties were breached and
therefore actionable under Section 17.50(a)(2) of the Texas Business and Commerce
Code: a) the implied warranty of fitness for a particular purpose; b) the implied warranty
of good and workmanlike performance; [and] c) [the] [e]xpress warranties and
representations made in the Service Agreement between Plaintiffs and Defendant dated
November 2, 2009.”4 Via its motion for summary judgment, Crop Quest asserted,
among other things, that there was no evidence of 1) the existence of a warranty, either
expressed or implied, 2) reliance by 2L Farms, 3) breach, and 4) causation. The motion
was granted, again without specification of any particular ground upon which the trial
court relied. According to 2L Farms, the decision was wrong because the complainant
presented some evidence creating a question of fact on each element attacked. We
overrule the issue.
Express Warranty
The express warranty is best described by 2L Farms in its appellant’s brief.
According to that document, it consists of the statement in “[t]he Service Agreement”
between it and Crop Quest stating that “‘Crop Quest will assist the producer with the
decisions involving crop selection and other agronomic recommendations that can
enhance the yield and efficiency of crop production . . . .’” The passage purportedly “is
a clear representation concerning the quality or characteristics of the services,” and,
therefore, is an express warranty.
A warranty describes the "character, quality, or title" of that which is being sold
and "by which seller promises or undertakes to insure that certain facts are or shall be
4 Plantiffs’ Second Amended Petition. 7 as he then represents them.” Chilton Ins. Co. v. Pate & Pate Enters., 930 S.W.2d 877,
890-91 (Tex. App.—San Antonio 1996), (quoting BLACK’S LAW DICTIONARY 1586 (6th ed.
1990)). Furthermore, there must be a “definitive” affirmation of fact or promise for the
warranty to be expressed. Id. Necessarily then, an express warranty relating to
services is a definitive affirmation of fact or promise relating to the character or quality of
the services. See Paragon General Contractors, Inc., v. Larco Constr., Inc., 227
S.W.3d 876, 886 (Tex. App.—Dallas 2007, no pet.) (stating that a cause of action for
breached warranty for services includes, among other things, a representation by the
defendant to the plaintiff “about the characteristics of the services by affirmation of fact,
by promise, or by description”). And, one assesses whether a breach of that warranty
occurred by determining whether the services received conformed to the character and
quality of those promised. Chilton Ins. Co. v. Pate & Pate Enters., 930 S.W.2d at 891.
At this point, we refer the reader back to 2L Farms’ description of the express
warranty at bar. Again, it consisted of the contractual obligation that “Crop Quest will
assist the producer with the decisions involving crop selection and other agronomic
recommendations that can enhance the yield and efficiency of crop production . . . .”
Though the complainant characterizes that as “a clear representation concerning the
quality or characteristics of the services” involved, it failed to explain how that was so.
Indeed, it merely concluded as much.
Our interpretation of the entire contract leads us to construe the passage simply
as describing what Crop Quest agreed to do; that is, provide farming advice for the
purpose of enhancing crop yield. More importantly, nothing within it specifies any
particular result or standard against which performance could be measured. Indeed,
the contract specified that “Crop Quest cannot guarantee yields or results from its
8 recommendations due to its inability to control the quality of products used, or the
application of such products.” Having effectively disclaimed any guarantee regarding
yield and results, Crop Quest’s reference to assisting the producer in enhancing yields
is not a definitive affirmation or promise relating to character, quality, or attributes of the
services to be provided. It must be remembered that the meaning of words and
passages in a contract are interpreted by considering them within the context of the
whole document. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.
2005). 2L Farms’ effort to focus only on a contract passage alluding to the desire to
enhance crop yield fails to abide by that rule.
Implied Warranties
Next, 2L Farms asserts that “[t]here is evidence that [Crop Quest] breached (i)
the implied warranty of fitness for a particular purpose, and (ii) the implied warranty of
good and workmanlike performance.” Thus the trial court purportedly erred in granting
summary judgment on those claims. We overrule the issue.
2L Farms included neither argument nor authority in its appellant’s brief
regarding the contention that Crop Quest violated the implied warranty of good and
workmanlike performance. Thus, the argument was and is waived. Harris v. Archer,
134 S.W.3d 411, 447 (Tex. App.—Amarillo 2004, pet. denied) (holding that the failure to
cite authority or provide argument supporting an issue is inadequate briefing resulting in
the waiver of that issue).
As for the argument about breaching an implied warranty regarding the fitness of
goods purchased, Crop Quest sought to defeat this claim below by asserting, among
other things, that 1) our Supreme Court “has . . . held that an implied warranty of fitness
for a particular purpose does not apply to a product provided as an inseparable part of
9 the rendition of professional services. See Walden v. Jeffrey, 907 S.W.2d 446,448 (Tex.
1995)” and 2) “there is no evidence that the Service Contract was exclusively for the
sale of goods (which were not an inseparable part of the rendition of professional
services).” In other words, Crop Quest argued that there could be no such implied
warranty here because 2L Farms bought services, and the herbicide applied to Pivot 29
was an indivisible aspect of providing those services. Given that the trial court did not
indicate it granted summary judgment on grounds other than this, 2L Farms had the
burden to show us why this ground could not support the trial court’s decision. Yet, 2L
Farms did not do that. Instead, it noted the rather specific argument in its brief but then
said nothing about it. Simply put, the burden of showing error was not carried.
Breach of Contract
Next, 2L Farms contended that the record held some evidence to illustrate that
Crop Quest breached the service contract. We overrule the issue.
When attempting in its appellant’s brief to illustrate evidence of an actual breach
of the contract, 2L Farms merely stated: “As shown by all foregoing references to the
agreement and actions and inactions of Appellee as set forth herein in discussion of the
breach of warranties. [sic] Appellee breached the contract.” Yet, as we discussed
above, 2L Farms did not establish that the trial court erred in granting summary
judgment upon the claims of breached warranty. So, since its claim of breached
contract appeared to be based upon the viability of its claims of breached warranties
and the latter were not shown to be viable, we cannot say that 2L Farms illustrated that
10 the trial court erred in entering summary judgment upon the claim of breached contract. 5
We further note that in moving for summary judgment on the breach of contract
claim, Crop Quest argued the following:
Texas courts generally do not allow what are truly negligence claims to be fractured into claims for breach of contract. [citation omitted] Once a professional and client have established a relationship, [‘]the real issue remains one of whether the professional exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge commonly possess and exercise.’ [ ] Although more frequently cited in legal malpractice cases, improper fracturing has also been cited as a basis for limiting claims against other professionals. [citation omitted] (accounting firm could only be sued for negligence).
It then concluded by stating: “Just as any DTPA or fraud claim arising after the
execution of the November 2, 2009 Service Contract is improper, so is any claim
alleging breach of the contract.” This ground for entering summary judgment went
unaddressed by 2L Farms in its appellant’s brief. Given the nature of the summary
judgment order and the trial court’s decision not to specify the particular grounds
underlying its decision, this omission by 2L Farms is another reason for us to conclude
that it did not carry its burden to prove the decision was wrong.
Fraud Claim
Next, 2L Farms alleged that the record contained some evidence establishing
each element of fraudulent misrepresentation and fraudulent inducement. We overrule
the issue.
2L Farms stated that “[t]he contract attached to this brief as Exhibit A-3 clearly
shows that Appellee made representations of the services to be provided by Appellee
and the nature and quality of those services.” It then said that “[f]or each of the reasons
5 To the extent that 2L Farms may purport to base its claim for breached contract on something other than its warranty theory, it was obligated to explain as much to us in its brief. Adequate briefing requires the provision of argument and authority, not simply conclusions unaccompanied by legal authority. Cooper v. Cochran, 288 S.W.3d 522, 530-31 (Tex. App.—Dallas 2009, pet. denied). 11 set above, it is clear that the representations made by Crop Quest were false. Records
and contact were not maintained consistent with providing services to enhance
Appellants’ crop yields.” Yet, we were cited to (and our own search uncovered) no
evidence from which one could infer that the representations alluded to were false when
made or that Crop Quest lacked knowledge of their truthfulness when made. Such is a
requirement of fraudulent inducement and misrepresentation. See Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001) (stating that a “fraud cause of action requires:
(1) a material misrepresentation, (2) that was either known to be false when made or
was asserted without knowledge of its truth, (3) which was intended to be acted upon,
(4) which was relied upon, and (5) which caused injury”). So, we cannot say that the
trial court erred in rejecting the allegations of fraud based upon what was said in the
contract.
To the extent that 2L Farms based its claim of fraud upon “specific
representations as to the type and nature of the herbicide which was to be applied to
the Pivot 29 corn” contained in “Crop Quest Field Reports attached as Exhibits 3, 4, 7,
8, and 9 to Appellants’ response to the first motion for summary judgment,” it again fell
short. The representations to which it alluded were actually “Herbicide
Recommendation[s].” To the extent that a “recommendation” can be false, it
nonetheless would have to be false when uttered. Again, we were neither cited to nor
did we find evidence it was false when made or made without knowledge of its
accuracy. The failure to perform a contractual obligation alone is not evidence of fraud.
Southern Union Co. v. City of Edinburg, 129 S.W.3d 74, 92-93 (Tex. 2003). And, 2L
Farms simply attempts to convert purported deficiencies in Crop Quest’s performance of
contractual duties into fraud. It cannot do that on the record at bar.
12 Professional Malpractice
Crop Quest also moved, via a separate motion, for summary judgment on 2L
Farms’ allegation of negligence. It contended that there was no expert evidence of the
pertinent standard of care, its breach, or causation between the purported breach of the
standard and 2L Farms’ alleged damages. 2L Farms did and does not question that the
circumstances of this case mandated the use of expert testimony to establish each of
those elements. Instead, it contended that Aljoe’s own testimony provided the requisite
evidence. We overrule the issue for several reasons.
First, we are cited to no evidence indicating that Aljoe is an expert within the
industry of agronomics or farming and the provision of agronomic or farming services. If
expert testimony is needed, as all seem to acknowledge, then Aljoe must be shown to
be an expert before his deposition excerpts can be used to fill the void.6
Second, the Aljoe deposition excerpts to which 2L Farms alludes indicate that he
“checked the fields,” the “herbicides listed on Field Reports did not contain Roundup,”
his “inspection indicated the sprayed corn was dead,” he “would not have recommended
spraying Roundup on Pivot 29 if he had known it was white corn,” and he “had
knowledge that Roundup was sprayed on Pivot 29.” Yet, we are not cited to any
evidence indicating the identity of the field or profession involved; whether it is general
farming, agronomy, herbicides, or the application of herbicides or whatever else goes
unmentioned. Nor are we cited to evidence specifying or explaining the applicable
standard of care related to any of those endeavors, much less how it was breached.
Simply put, Aljoe’s description of what happened and what he personally would
have done had circumstances been different is not alone expert testimony regarding the 6 Indeed, Crop Quest argued that no one designated Aljoe as an expert, that the deadline to designate experts had expired, and, therefore, his words could not be used as expert testimony. 13 standard of care mandated by the profession involved. See Warner v. Hurt, 834 S.W.2d
404, 407 (Tex. App.—Houston [14th Dist.] 1992, no writ) (stating what a purported
expert would have done personally is not evidence of the standard of care or its
breach). Given this, we cannot say that 2L Farms established that the trial court erred
in concluding that no evidence supported the claim of negligence.
Accordingly, we affirm the summary judgments.
Brian Quinn Chief Justice