Lundstrom v. Dependable Comfort Air & Heat, Inc. et al
Filing
125
MEMORANDUM AND ORDER DENYING IN PART, GRANTING IN PART 55 Motion for Summary Judgment, GRANTING 57 Motion for Summary Judgment, GRANTING 67 MOTION for Partial Summary Judgment on DTPA Claims.(Signed by Judge Ewing Werlein, Jr) Parties notified. (marflores, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VONNIE LUNDSTROM,
Plaintiff,
v.
DEPENDABLE COMFORT AIR
CONDITIONING & HEATING INC.,
TRANE U.S. INC., f/k/a
AMERICAN STANDARD, INC.,
and INGERSOLL-RAND,1
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-13-1728
MEMORANDUM AND ORDER
Pending are Defendant Dependable Comfort Air & Heating, Inc.’s
(“Dependable
Comfort”)
Motion
for
Summary
Judgment
(Document
No. 55), Defendants Trane U.S. Inc. f/k/a American Standard, Inc.
and
Ingersoll-Rand’s
(“Trane”)2
Motion
for
Summary
Judgment
(Document No. 57), and Defendant Dependable Comfort’s Motion for
Partial Summary Judgment on DTPA Claims (Document No. 67).3
After
1
Plaintiff’s Original Complaint lists as Defendants Does 1-5
and Roes 1-5. Plaintiff requested that these parties be deleted,
Document No. 118 at 1, which request is GRANTED.
2
Trane is a subsidiary of Ingersoll-Rand, and these two
parties (except as distinguished in Note 11 at p. 7, infra) for
purposes of this motion are treated as one, and identified together
as “Trane.”
3
Dependable Comfort’s Motion for Partial Summary Judgment on
Deceptive Trade Practices Act (“DTPA”) Claims is in effect a
supplemental motion in which Dependable Comfort additionally argues
that Plaintiff’s DTPA claim is barred by the statute of limitations
or alternatively, that Plaintiff cannot point to any false or
misleading statements.
carefully considering the motions, response, reply, additional
submissions, and applicable law, the Court concludes as follows.
I. Background
A.
Factual Background
Plaintiff
Vonnie
Lundstrom
(“Plaintiff”),
a
law
school
graduate who states that for years she “has been an active or
inactive member of the State Bars of Texas and California,”4 brings
this action pro se for recovery of damages arising from the
improper installation and servicing of a new Trane home air
conditioning/heating
system.5
Plaintiff
alleges
that
before
purchasing the Trane system she suffered from respiratory issues
that were aggravated by environmental pollutants and irritants. In
late 2007 and early 2008, therefore, she desired to have the
“cleanest air possible” in her house and through advertising
became interested in the Trane CleanEffects System.
She contacted
Dependable Comfort, whose representative examined her then-existing
air conditioning and heating system, and explained that she would
need to replace two complete systems with Trane condensers and
furnaces
and
the
CleanEffects
System
4
(collectively
the
“HVAC
Document No. 50 at 4. According to the State Bar of Texas,
Plaintiff was licensed in Texas May 2, 2001, and after twice
becoming inactive and then active again, for the third time became
inactive on June 6, 2013, which is her present status.
5
Document No. 1 (Pl.’s Cmpl.).
2
System”).
She agreed to have Dependable Comfort perform the work,
which was done about mid-May 2008, at a cost of approximately
$23,300.00 for the complete system’s replacement, plus a one-year
“preferred” service membership with Dependable Comfort. Dependable
Comfort
made
regular
maintenance
calls
through
2010.
After
installation of the HVAC System, however, Plaintiff’s respiratory
problems continued to worsen, resulting in her having prolonged
hospital visits, declining health, and loss of business, and she
ultimately decided to relocate from Houston to Montana in search of
clean air.6
Plaintiff alleges that in the course of selling her Houston
residence for her move to Montana, in October 2010 she discovered
that the HVAC System was blowing dirty air and airborne allergens
into her home and making the air even dirtier than when it entered
the system.
She alleges that she sustained physical injuries,
6
The Court takes judicial notice of a separate case Plaintiff
filed in Montana against unrelated defendants fewer than three
weeks after filing the instant case, in which Plaintiff traced the
history of her respiratory problems as follows:
On information and belief, the cause of Mrs. Lundstrom’s
respiratory problems was due to living in highly polluted
cities in the Third World during the early years of Mr.
Lundstrom’s career, while Mr. and Mrs. Lundstrom had
decided to “pay their dues” and “defer gratification” for
the long-term betterment of his career, as well as
subsequent exposures while living in the highly polluted
city of Houston, Texas, again for the long-term
betterment of Mr. Lundstrom’s career.
Lundstrom v. Sorensen, et al., Civ. A. No. 9:12cv00170-DLC, JCL,
Document No. 4 (D. Mt.).
3
medical bills and costs, severe emotional distress, loss of her
career and livelihood, past, present and future income, loss of her
home, financial loss on the sale of her home, and repair costs in
an amount in excess of $15,000 as a result of the defective HVAC
System installed and serviced by Dependable Comfort.
She alleges four counts against Defendants: (1) negligence on
the
part
of
Defendants
in
connection
with
the
foregoing
installation and maintenance of the allegedly defective system;
(2) Deceptive Trade Practices Act violations against Defendants,
based upon false and misleading statements in the marketing and
sale of the HVAC System to Plaintiff; (3) breach of contract
against Dependable Comfort, for “failing to provide what was
promised in the contract”; and (4) strict products liability
against Defendants.7
Defendants move for summary judgment on the three remaining
counts.
B.
Preclusion Orders
By Order dated October 27, 2014, after “Plaintiff’s failure to
comply with the Court’s Docket Control Order signed October 25,
2013,
and
failure
to
identify
7
by
reports
the
names
and
Plaintiff subsequently stated that she intended “no longer
[to] pursue the cause of action for Strict Products Liability with
respect to both Defendants.” Document No. 118 at 1. Plaintiff’s
strict products liability claims are therefore DISMISSED.
4
qualifications of any expert, and each opinion the expert will
present, and the basis for it . . .” Plaintiff was “PRECLUDED from
calling any previously disclosed expert as a witness or otherwise
utilizing testimony from any such expert in this case.”8
Later, by
Order dated April 30, 2015, because of Plaintiff’s adversarial
misconduct and improper tactics in this litigation, described at
length in the Magistrate Judge’s Order dated March 25, 2015,
Plaintiff was “PRECLUDED from offering, using, referencing, or
relying upon any evidence or testimony as to the source or cause of
her medical/health/respiratory problem(s) or illness(es) and from
recovering any alleged damages related thereto.”9
II. Legal Standard
Rule 56(a) provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(a).
Once the movant carries
this burden, the burden shifts to the nonmovant to show that
summary judgment should not be granted. Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
A party opposing
a properly supported motion for summary judgment may not rest upon
mere allegations or denials in a pleading, and unsubstantiated
8
Document No. 49.
9
Document No. 121.
5
assertions that a fact issue exists will not suffice.
Id.
“[T]he
nonmoving party must set forth specific facts showing the existence
of a ‘genuine’ issue concerning every essential component of its
case.”
Id.
“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . .; or (B) showing
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible
56(c)(1).
evidence
to
support
the
fact.”
Fed.
R.
Civ.
P.
“The court need consider only the cited materials, but
it may consider other materials in the record.”
Id. 56(c)(3).
In
considering a motion for summary judgment, the district court must
view the evidence “through the prism of the substantive evidentiary
burden.”
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2513
(1986). All justifiable inferences to be drawn from the underlying
facts must be viewed in the light most favorable to the nonmoving
party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.
Ct. 1348, 1356 (1986). “If the record, viewed in this light, could
not lead a rational trier of fact to find” for the nonmovant, then
summary judgment is proper.
Kelley v. Price- Macemon, Inc., 992
F.2d 1408, 1413 (5th Cir. 1993).
On the other hand, if “the fact
finder could reasonably find in [the nonmovant’s] favor, then
summary judgment is improper.”
Id.
Even if the standards of Rule
56 are met, a court has discretion to deny a motion for summary
6
judgment if it believes that “the better course would be to proceed
to a full trial.”
Anderson, 106 S. Ct. at 2513.
III. Discussion
A.
Plaintiff’s Claims Against Trane
1.
Negligence
The elements of a negligence claim are: (1) duty, (2) breach,
and (3) damages proximately caused by that breach. Wansey v. Hole,
379 S.W.3d 246, 248 (Tex. 2012).
Trane moves for summary judgment
on Plaintiff’s negligence claim, arguing that Plaintiff cannot
point to any negligent act or omission by Trane that breached a
duty Trane owed to Plaintiff.10
Indeed, in her response to Trane’s
Motion for Summary Judgment, Plaintiff has produced no summary
judgment evidence of any negligent act or omission by Trane with
respect to its manufacture of its Clean Effects System that
Dependable Comfort sold to Plaintiff.11
Because Plaintiff offers
no evidence to raise a genuine issue of material fact on her
10
Document No. 57 at 5-6.
11
See Document No. 82. Plaintiff specifically conceded her
lack of evidence as to Ingersoll Rand in a written interrogatory
response: “I am presently unaware of any negligent acts on the
part of Ingersoll Rand relative to the equipment in question.
However, discovery and investigation is ongoing and continuing.”
Document No. 57, ex. 3 at 9. As for Ingersoll Rand and for the
manufacturer Trane, Plaintiff is still empty-handed as to any
evidence of negligence.
7
conclusory claim of negligence against Trane, Trane is entitled to
summary judgment on that claim.
2.
DTPA
Trane argues that Plaintiff’s DTPA claim is barred by the DTPA
two-year statute of limitations.12
Under Texas law, “[a]ll [DTPA
actions] must be commenced within two years after the date on which
the false, misleading, or deceptive act or practice occurred or
within two years after the consumer discovered or in the exercise
of reasonable diligence should have discovered the occurrence of
the false, misleading or deceptive act or practice.”
TEX. BUS. &
COM. CODE ANN. § 17.565.
Dependable Comfort installed the HVAC System in Plaintiff’s
home in mid-May of 2008, and Plaintiff alleges that she did not
discover the defects in the HVAC System and of its improper
installation until mid-October 2010, when she was in the process of
selling her home.13
Viewing the summary judgment evidence in the
light most favorable to the non-movant, Plaintiff therefore did not
discover Defendants’ alleged false and misleading statements in the
marketing and sale of the HVAC System until mid-October 2010 when
the defective HVAC System was exposed.
See Booker v. Real Homes,
Inc., 103 S.W.3d 487, 492 (Tex. App.-San Antonio 2003, pet. denied)
12
Document No. 99 at 5-6.
13
Document No. 82 at 4.
8
(finding that the plaintiffs in the case could not have discovered
that window leaks were the source of the mold in their home until
they were aware of the leaks). Thus, Plaintiff had two years after
mid-October 2010 within which to bring her DTPA claims, that is,
until mid-October 2012.14 Plaintiff filed her lawsuit in the United
States District Court for Montana on September 24, 2012, within the
two-year statute of limitations and with sufficient time to have
obtained timely service of summons and a copy of the Complaint upon
Defendants.
Plaintiff took no action to serve any of Defendants in a
timely manner.
There is no showing that she notified Defendants
that she had sued them in Montana, or that she ever requested them
to waive service of a summons.
See FED. R. CIV. P. 4(d)(1).
The
District Court for Montana took note of Plaintiff’s inaction, and
vacated
its
setting
for
a
Rule
16
pretrial
conference
on
December 18, 2012 “[b]ecause Lundstrom has not undertaken to
accomplish service of a summons and a copy of her Complaint upon
each Defendant.”15 Two additional months passed and, on February 7,
2013, the District Court for Montana found that “Lundstrom still
has not obtained the issuance of summonses, and has not effected
service of process.”16
The Court thereupon for a second time
14
See id.
15
Document No. 4.
16
Document No. 5 at 2.
9
vacated its setting for a pretrial conference, and held that
“Lundstrom’s failure to effect service of process now also subjects
this action to the possibility of mandatory dismissal under Fed. R.
Civ. P. 4(m).”17
Not until February 12, 2013, did Plaintiff obtain
summonses from the court, and then caused Trane to be served on
February
13,
2013,
February 18, 2013.
and
Dependable
Comfort
to
be
served
on
Defendants therefore were never served with
process and notice of the case until approximately four months
after the statute of limitations had run on Plaintiff’s DTPA
claims.18
Under Texas law, “a plaintiff must not only file suit but also
use due diligence in procuring service on the defendant in order to
toll the statute of limitations.” Saenz v. Keller Indus. of Texas,
Inc., 951 F.2d 665, 667 (5th Cir. 1992). “The determination of due
diligence is usually a fact question; the standard is the ordinary
prudent person standard.
However, lack of due diligence may be
found as a matter of law if the plaintiff offers no excuse for his
failure
to
procure
service,
or
conclusively negates diligence.”
if
Id.
the
plaintiff's
excuse
“[I]t is the plaintiff's
burden to present evidence regarding the efforts that were made to
17
Id.
18
Because the Court applies the discovery rule in accepting
her claim that she did not discover the DTPA claims until midOctober 2010, approximately five years had lapsed since Defendants
committed what she alleges were deceptive trade practices in the
sale and installation of her HVAC System.
10
serve the defendant, and to explain every lapse in effort or period
of delay.”
Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)
(citations and quotation marks omitted).
Furthermore, “when a
defendant complains of lack of due diligence in service of process,
the plaintiff must explain what steps he took to obtain service,
not explain why he did nothing.”
Slagle v. Prickett, 345 S.W.3d
693, 698 (Tex. App.-El Paso 2011, no pet.).
Instead of attempting to show due diligence, Plaintiff claims
to be “excused from the statute of limitations” because “[s]he is
and was fully disabled,” evidently referring to a Social Security
Administrative Law Judge determination that Plaintiff had full
disability caused by Obstructive Pulmonary Disease.
She also
asserts that she “was hospitalized extensively in Denver, Colorado
in the Fall and Winter of 2011, at which time she was diagnosed
with severe bronchitis, a chronic obstructive pulmonary disease.”
A determination that one is disabled and entitled to Social
Security benefits does not carry with it an exemption from statutes
of limitations and Plaintiff cites to no authority for this notion.
Moreover, even if a plaintiff’s hospitalization were sufficient to
raise a fact issue on whether due diligence was shown in serving
defendants with summonses, there is no rationale to excuse one from
exercising due diligence after being discharged from the hospital.
Regardless, Plaintiff’s claimed extensive hospitalizations were in
the Fall and Winter of 2011, and Plaintiff has not produced summary
11
judgment evidence that she was hospitalized for so long as even one
week’s time during the four and one-half months from when she filed
the case on September 24, 2012, until she first obtained the
issuance of summonses on February 12, 2013.19
As a matter of law,
Plaintiff failed to show due diligence in timely serving each
Defendant with summons and a copy of the Complaint after filing the
case on September 24, 2012, and before or within a “due diligence”
period of time after the statute of limitations expired.
The DTPA
claims are barred, and Trane is entitled to summary judgment as a
matter of law on the DTPA claim.
B.
Plaintiff’s Claims Against Dependable Comfort
Like
Trane,
Dependable
Comfort
correctly
argues
that
Plaintiff’s DTPA claims should be dismissed as barred by the
statute of limitations20 and for all of the reasons just explained
above, Dependable Comfort’s Motion for Partial Summary Judgment on
DTPA Claims is granted.
Plaintiff’s remaining claims against Dependable Comfort are
for negligence and breach of contract.
19
Dependable Comfort moves
In an Ex Parte Application for Extension of Time to Serve
Defendants filed in Montana, Plaintiff stated that she “was
recently hospitalized for three nights.” Document No. 7 at 1. The
attached hospital records state that Plaintiff was admitted
February 3, 2013, and released February 6, 2013. Id., ex. A at 2
of 6.
20
Document No. 67.
12
for
summary
judgment,
arguing
Plaintiff
“cannot
provide
any
competent or admissible evidence to support her contention that her
injuries were caused by Dependable Comfort.”21 As already observed,
Plaintiff
is
precluded
from
calling
any
previously
disclosed
expert22 and “from offering, using, referencing, or relying upon any
evidence
or
testimony
as
medical/health/respiratory
to
the
problem(s)
source
or
or
cause
illness(es)
recovering any alleged damages related thereto.”23
of
and
her
from
Plaintiff has
no evidence of causation that the HVAC System was the cause of
aggravating her respiratory problems and illnesses, and all of the
other injuries and damages derivatively claimed to have been
suffered therefrom.
Dependable Comfort is therefore entitled to
summary judgment on all of these claims.
Remaining, however, are Plaintiff’s negligence and breach of
contract claims as they pertain to Dependable Comfort’s alleged
defective
installation
and
negligent
maintenance
of
the
HVAC
System, which caused Plaintiff to sustain damages for repair of the
house or a loss of a portion of the house’s market value.
On this,
Plaintiff’s summary judgment evidence is that when she was selling
her home, the buyers’ inspector Tim Sweat (“Sweat”) discovered a
number of issues related to the HVAC system:
21
Document No. 55 ¶ 1.
22
Document No. 49.
23
Document No. 121.
13
(1) the two 5 Ton
Trane R-22 condensers had a 7/8" suction line copper installed on
them with 7/8" X 3/8" armaflex insulation and the suction lines
needed to be replaced with 1 1/8" suction line copper and 1" thick
armaflex insulation, (2) in order to replace the copper line, the
sheet rock inside the house needed to be cut out and then patched,
retextured and painted, (3) the rusted emergency drain pan needed
to be replaced, (4) the outside disconnects needed to be replaced,
(5) the supply duct work needed to be redone, (6) the filter
grilles on both floors were undersized for the 5 ton unit and
needed to be replaced, (7) the registers needed to be replaced, and
(8) the systems needed to be restarted, checked, and tested.24
The
estimated cost, including tax, to make these repairs was $15,000.25
In her Complaint, Plaintiff alleges “repair costs in an amount in
excess of $15,000.”26
Viewing the summary judgment evidence in the light most
favorable to the non-movant, there is a genuine issue of material
24
Document No. 46, ex. C at 3 of 9 to 5 of 9. Dependable
Comfort exhibits an expert report by Gerald R. Spencer, P.E.
(“Spencer”) questioning whether Dependable Comfort should be liable
for all of these damages. Spencer states that Sweat does not state
whether this was ductwork that Dependable Comfort replaced and that
sealing the air shaft was the responsibility of the general
contractor, not Dependable Comfort. Additionally, Spencer’s report
points out that ductwork sizing is “subject to individual opinion
within reasonable limits.”
On summary judgment, however, all
evidence is viewed in the light most favorable to the non-movant.
25
Id., ex. C at 5 of 9.
26
Document No. 1 at 4.
14
fact on whether Dependable Comfort’s installation and maintenance
of the HVAC System was defective in breach of its contract with
Plaintiff
and/or
sustaining
negligent,
damages
measured
and
by
was
the
the
cost
diminished market value of the house.
cause
of
of
Plaintiff
repairs
or
the
These claims remain for
trial. Defendant Dependable Comfort is granted summary judgment on
all other of Plaintiff’s claims.
IV. Order
For the foregoing reasons, it is hereby
ORDERED that Defendant Dependable Comfort Air & Heating,
Inc.’s Motion for Summary Judgment (Document No. 55) is DENIED in
part as to Plaintiff Vonnie Lundstrom’s claims for breach of
contract
and
negligence
causing
Plaintiff
to
sustain
damages
measured by the cost of repairs or diminished market value of the
house, and these claims remain for trial, and Defendant Dependable
Comfort Air & Heating, Inc.’s Motion for Partial Summary Judgment
on DTPA Claims (Document No. 67) and Motion for Summary Judgment
(Document No. 55) are otherwise in all things GRANTED, and all
other
of
Plaintiff’s
claims
DISMISSED with prejudice.
ORDERED
that
against
Dependable
Comfort
are
It is further
Defendants
Trane
U.S.
Inc.
f/k/a
American
Standard, Inc. and Ingersoll-Rand’s Motion for Summary Judgment
15
(Document No. 57) is GRANTED and all of Plaintiff’s claims against
Defendants Trane and Ingersoll-Rand are dismissed with prejudice.
The Clerk shall notify all parties and provide them with a
true copy of this Order.
SIGNED at Houston, Texas, on this 16th day of July, 2015.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?