Opinion
No. 05-06-00092-CV
Opinion filed November 15, 2006.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-04-12780-D.
Reversed and Remanded in part; Affirmed in part.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Appellant David L. Smith and Associates, LLP, sued appellees Keane Landscaping, Inc. and Kevin W. Keane pursuant to the Telephone Consumer Protection Act and the Texas Telemarketing Disclosure and Privacy Act. See 47 U.S.C.A. § 227 (West 2001 Supp. 2006); Tex. Bus. Com. Code Ann. §§ 44.001-.254 (Vernon Supp. 2006). The trial court granted a no-evidence summary judgment in favor of appellees on all claims. In one issue, appellant contends the trial court erred in granting summary judgment on its claim for appellees' "failure to respond," that is, that appellees failed, upon "receipt of oral or written notification from [appellant] not to send any further facsimile transmissions . . .," to send appellant a written acknowledgment of appellant's notification, in violation of section 44.152 of the business and commerce code. See Tex. Bus. Com. Code Ann. § 44.152.
Although appellant's brief notes other problems it contends exist with respect to the actions of the trial court, it does not request that we reverse any other parts of the trial court's judgment based on those contentions. Thus, we conclude appellant has waived any other ground for reversing the trial court's judgment. See Tex.R.App.P. 38.1(h); Okere v. Chase Manhattan Mortgage Corp., 191 S.W.3d 910, 912 (Tex.App.-Dallas 2006, no pet.) (issues waived on appeal by failure to brief).
The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We reverse the trial court's judgment with respect to appellant's "failure to respond" claim and remand that claim to the trial court for further proceedings. We affirm the remainder of the trial court's judgment.
There is summary judgment evidence that appellant, through its attorney, sent a letter to appellees asking that its number be removed from their lists of facsimile recipients. The evidence indicates the letter was sent on July 3, 2003, within two years of the date appellant filed suit on November 2, 2004. There is also summary judgment evidence that appellees never responded to this letter.
Applying the standard of review applicable to a no-evidence motion for summary judgment, see Tex. R. Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005), we conclude appellant's summary judgment evidence raised an issue of material fact as to whether appellees violated section 44.152 of the business and commerce code.
Further, to the extent the trial court granted summary judgment on this claim based on the statute of limitations, the trial court erred. See Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex.App.-Dallas 2000, pet. dism'd w.o.j.) (no-evidence motion for summary judgment based on affirmative defense improper, as nonmovant has no burden of proof with respect to movant's affirmative defense); see also Tex. R. Civ. P. 94 (statute of limitations is affirmative defense). Moreover, the summary judgment evidence indicated that the suit was filed within the limitations period. See David L. Smith Assocs., LLP v. Advanced Placement Team, Inc., 169 S.W.3d 816, 823 (Tex.App.-Dallas 2005, pet. denied) (applying two-year limitations period to section 44.152 claim).
We thus conclude the trial court erred in granting summary judgment on that claim. We reverse the judgment of the trial court with respect to appellant's claim that appellees violated section 44.152 of the business and commerce code, and remand that claim to the trial court for further proceedings. We affirm the remainder of the trial court's judgment.