Giuseppi King v. LFA MacHines DFW, LLC

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00106-CV

GIUSEPPI KING, Appellant

V.

LFA MACHINES DFW, LLC, Appellee

On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-349068-23

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

Giuseppi King appeals the trial court’s summary judgment entered in favor of LFA

Machines DFW, LLC (LFA). On appeal, King argues that the trial court erred by determining

that LFA was entitled to summary judgment.1 Because we find that the trial court’s no-evidence

summary judgment was proper, we affirm its take-nothing judgment against King.

I. Factual and Procedural Background2

This case involves a dispute over an industrial capsule filling machine, the “FACF

Automatic Capsule Filler-FACF-400” (the machine), purchased by King from LFA in November

2020 for $31,400.00. After conducting her own research, King chose to purchase the machine

from LFA and contacted them directly. King said that the promise of lifetime technical support

on their website led to her decision to choose LFA. An invoice sent to King on November 6,

2020, included links to LFA’s terms and conditions regarding warranty, shipping, and returns.

LFA’s warranty was effective for “[o]ne year from the original purchase date” and did not cover

“[d]amage caused by improper installation, improper or abnormal use, misuse, [or] neglect.”

LFA’s return policy shows that the machine could be returned “within [fourteen] days.”

According to King, she purchased the machine from Michael Packard, an LFA

salesperson, and claimed that he told her that the machine was in stock. Packard informed King

that the machine would be shipped directly from Taiwan. King decided that she would operate

1
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the
precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3.
2
The facts in this section are taken from the summary judgment evidence.
2
the industrial machine from her garage because “Michael told [her] it was a 220 [volt machine],

[they] talked about using the power supply from [her] dryer.”

During the wait for the machine, there were several pleasant email exchanges between

King and LFA employee Robert Norris. Those emails show no complaints from King, who

provided LFA with specific instructions on where and how to deliver the machine to Kauai,

Hawaii in February 2021. In April 2021, LFA sent King the manual for the machine before it

was delivered.

On May 24, 2021, King emailed Norris to let him know that the machine had been

delivered. In that email, King wrote, “I am not sure when I will be able to test this machine but

at least it is here. Maybe by the end of the year, until then it will sit in my garage.” In response,

Norris offered to train King and her “team on site” on how to use the machine.

King obtained assistance from others to help get the machine working. On October 25,

2021, King notified Norris that she was having trouble with the machine. King said, “Most

importantly though is the machine [is] not working, it turns on and immediately has an error

reading of main motor overload and an intermittent reading of out of phase.” Norris responded

that it “sound[ed] as if the power supply [wa]s not a delta connection. There is a phase sequence

protector which prevents the machine from running while out of phase as running the machine

backwards can damage certain components.” Norris added that the protector would “prevent the

machine from running if it sense[d] more than a 10% variance in voltage.”

On November 5, 2021, Norris offered to send a part that could help, but also told King,

The equipment is not defective, that is not fair to say. The fact that you are using
a phase converter is not allowing the machine to run and by swapping out the part
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I referenced on our phone call will sort the issue with the electrics and you will
only be left with assembling the motor mounting rod. You will absolutely need
assistance with this job as the parts can be heavy and cumbersome. I had always
assumed that you had a team and not that you would be operating the machine on
your own.

Norris sent King the part and, on November 23, 2021, said that he would be “happy to make the

time to ensure [the] machine gets up and running.” King and Norris then engaged in a series of

emails in an effort to get the machine working, but they were unsuccessful.

On December 29, 2023, King sued LFA for breach of contract, common law fraud,

negligent misrepresentation, and violations of the Texas Deceptive Trade Practices Act (DTPA).

King alleged that LFA induced King to purchase the product by stating that “it would provide

full technical support in order to make the machine operational” but “failed to provide an

operational machine, technical support, or appropriate assembly instructions rendering the

machine useless and incapable of performing its represented function.” King alleged that LFA

breached its contract “to deliver a machine which was capable of assembly and being made

operational.”

In its answer, LFA asserted defenses of statute of limitations, ratification, mutual mistake,

laches, waiver, and estoppel, and alleged that King could not bring tort claims since the matter

involved a contract dispute. LFA also claimed that King’s “damages ar[o]se solely from her

improper installation and use of the machine.”

After discovery was complete, LFA filed a combined traditional and no-evidence motion

for summary judgment. In support of the motion, LFA attached Norris’s declaration, emails

between Norris and King, and King’s deposition, among other things.

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King testified that she believed the machine came with a lifetime of technical support

based on LFA’s website and the manual but did not produce evidence from the website or

manual showing such a promise. King testified that she read the terms and conditions referenced

in the links listed on the invoice, which did not include the alleged promise, but believed that

LFA made a material misrepresentation regarding technical support. When King was asked

when she knew she was not getting the technical support she thought she would, King testified,

“Right away. . . . [W]hen we couldn’t get the machine to work after it was installed.”

King also said she knew that LFA did not have the machine in stock when she spoke with

Norris three weeks after placing her order, and LFA was allegedly not sticking to its warranty.

According to King, she spoke directly with Norris about a refund. Even so, King accepted

delivery of the machine. Although she had chosen the machine on her own after conducting her

own research, King testified that no one told her that the machine would come disassembled.

King said that the machine was a “Y machine, not a delta machine,” which was why her phase

converter was not working. King said that had she known “it was a Y machine, that would have

changed the whole project. [She] would have bought a different phase converter. [She] would

have done everything differently.” King also admitted that the same conduct that gave rise to her

tort causes of action also formed the facts of her breach of contract action.

King filed a four-page response to LFA’s motion for summary judgment. The response

attached King’s declaration and deposition and, in conclusory form, stated that the evidence

contained therein met the elements of her causes of action. King’s declaration stated that:

(1) Packard misrepresented that the machine was in stock; (2) “Norris admitted that [LFA]

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misrepresented the machine as in stock”; (3) “Norris ha[d] acknowledged that no lifetime

technical support existed despite promises made by Michael Packard, to the contrary and

publications by [LFA]”; (4) Norris said a refund was out of the question and the

“misrepresentation as to a refund made [her] not pursue the refund further as [she] believed his

statement”; and (5) she discovered that the machine was improperly wired and would not work

“[o]nly in 2024.”

In its reply, LFA argued that the discovery rule, which King did not plead, did not toll the

accrual date of King’s DTPA and negligent misrepresentation claims. LFA also argued that

King had failed to raise any response to the no-evidence motion regarding negligent

misrepresentation and had produced no evidence of fraud or unconscionable conduct. LFA

asserted that King’s tort claims were barred by the contract, and alternatively, that liability was

limited by the contract.

After reviewing the motion and summary judgment evidence, the trial court granted

LFA’s traditional and no-evidence summary judgment motion in its entirety and entered a take-

nothing judgment against King.

II. Standard of Review

“We review a summary judgment de novo.” Perry v. Janson, No. 02-25-00167-CV,

2026 WL 405956, at *3 (Tex. App.—Fort Worth Feb. 12, 2026, no pet.) (mem. op.) (citing

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). “When, as here, the trial

court does not specify the grounds for its ruling, a summary judgment must be affirmed if any of

the grounds on which judgment was sought are meritorious.” Id. (citing Merriman, 407 S.W.3d

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at 248). “Evidence is considered in the light most favorable to the nonmovant, crediting

evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless

a reasonable jury could not.” Id. (citing at Merriman, 407 S.W.3d at 248; Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam); City of Keller v. Wilson,

168 S.W.3d 802, 823 (Tex. 2005)).

“When a party files a combined no-evidence and traditional motion for summary

judgment, we generally consider the no-evidence motion first.” Id. (citing Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). “A properly filed no-evidence motion shifts the

burden to the nonmovant to present evidence raising a genuine issue of material fact supporting

each element contested in the no-evidence motion.” Id. (citing Wal-Mart Stores, Inc. v. Xerox

State & Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023)). “If the nonmovant fails to meet its

burden under the no-evidence motion, there is no need to address the challenge to the traditional

motion as it necessarily fails.” Id. (citing Merriman, 407 S.W.3d at 248).

“To defeat a no-evidence motion, the nonmovant must produce evidence raising a

genuine issue of material fact as to the challenged elements.” Id. (citing Ridgway, 135 S.W.3d at

600). “A genuine issue of material fact exists if the evidence ‘rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.’” Id. (quoting First United

Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997))). “The evidence does not

create an issue of material fact if it is ‘so weak as to do no more than create a mere surmise or

suspicion’ that the fact exists.” Id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875

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(Tex. 2014) (quoting Ridgway, 135 S.W.3d at 601)). A trial court does not err by granting a no-

evidence motion for summary judgment if

(a) there is a complete absence of evidence of a vital fact, (b) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (d) the evidence conclusively establishes the opposite of the
vital fact.

Id. at *4 (quoting King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting

Merrell Dow Pharms., Inc., 953 S.W.2d at 711)).

III. The Trial Court Properly Sustained LFA’s No-Evidence Challenges

King raised causes of action for negligent misrepresentation, common law fraud, breach

of contract, and deceptive trade practices. LFA’s motion for summary judgment argued that

King had no evidence of those claims. “Under Rule 166a(i), a no-evidence motion for summary

judgment ‘must’ be granted ‘unless the respondent produces summary judgment evidence raising

a genuine issue of material fact.’” Flynn v. Haltom City Econ. Dev. Corp., No. 02-24-00214-

CV, 2025 WL 421243, at *8 (Tex. App.—Fort Worth Feb. 6, 2025, no pet.) (mem. op.) (quoting

TEX. R. CIV. P. 166a(i) (amended 2026) (current version at TEX. R. CIV. P. 166a(h)(3)). Once

LFA filed its no-evidence motion for summary judgment, the burden shifted to King to produce

evidence raising a genuine issue of material fact on the elements of her claims.

A. King’s No-Evidence Summary Judgment Response Did Not Meet Her
Burden

LFA’s reply to King’s summary judgment response complained that King’s response

failed to cite, designate, or otherwise point to the portions of her deposition that supported her

claims and argued that her declaration was “riddled with unsubstantiated factual conclusions.”
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King’s four-page summary judgment response was cursory, only generally cited to her

declaration and testimony, and stated in conclusory fashion that they showed there was evidence

of her claims. Yet, “[m]erely citing generally to voluminous summary judgment evidence in

response to . . . a no-evidence . . . motion for summary judgment is not sufficient to raise an issue

of fact to defeat summary judgment.” Bich Ngoc Nguyen v. Allstate Ins. Co., 404 S.W.3d 770,

776 (Tex. App.—Dallas 2013, pet. denied) (citing Leija v. Laredo Cmty. Coll., No. 04-10-00410-

CV, 2011 WL 1499440, at *5 (Tex. App.—San Antonio, Apr. 20, 2011, no pet.) (mem. op.)

(“When a summary judgment respondent fails to direct the reviewing court to specific summary

judgment evidence, a fact issue cannot be raised sufficient to defeat summary judgment.”);

Kastner v. Gutter Mgmt. Inc., No. 14-09-00055-CV, 2010 WL 4457461, at *3 (Tex. App.—

Houston [14th Dist.] Nov. 4, 2010, pet. denied) (sub. mem. op.) (“Blanket citation to voluminous

records is not a proper response to a no-evidence motion for summary judgment.”)). “Therefore,

a party submitting summary judgment evidence ‘must specifically identify the supporting proof

on file that it seeks to have considered by the trial court.’” Id. (quoting Arredondo v. Rodriguez,

198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.)).

Where, as here, there is an “absence of any guidance from the non-movant where the

evidence can be found, the trial and appellate courts are not required to sift through voluminous

deposition transcriptions in search of evidence to support the non-movant’s argument that a fact

issue exists.” Id. (quoting Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005,

pet. denied)); see Chrissos v. PlainsCapital Bank, No. 13-23-00532-CV, 2025 WL 3187169, at

*17 (Tex. App.—Corpus Christi–Edinburg Nov. 13, 2025, pet. denied) (mem. op.). As a result,

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the trial court could have granted LFA’s no-evidence motion based on King’s insufficient

response alone. Even so, we discuss the evidence related to each of King’s causes of action

separately.

B. Negligent Misrepresentation

King’s summary judgment response wholly failed to address LFA’s argument that King

had no evidence to support a negligent misrepresentation claim. As a result, the trial court’s

grant of LFA’s no-evidence motion on this claim was proper. See Bich Ngoc Nguyen, 404

S.W.3d at 776; Westley v. Nilsson, No. 02-19-00391-CV, 2021 WL 3085750, at *2 (Tex. App.—

Fort Worth July 22, 2021, no pet.) (mem. op.); Landers v. State Farm Lloyds, 257 S.W.3d 740,

746 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Lazenby v. Lexus of Clear Lake, No. 14-05-

00573-CV, 2006 WL 462134, at *1 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet.

denied) (mem. op.).

C. Common Law Fraud

As for King’s common-law fraud claim, King had to prove that

(1) [the defendant] made a material misrepresentation; (2) [the defendant] knew
the representation was false or made the representation recklessly without any
knowledge of its truth; (3) [the defendant] made the representation with the intent
that [the plaintiff] would act on that representation or intended to induce [her]
reliance on the representation; and (4) [the plaintiff] suffered an injury by actively
and justifiably relying on that representation.

Lloyd Walterscheid & Walterscheid Farms, LLC v. Walterscheid, 557 S.W.3d 245, 261(Tex.

App.—Fort Worth 2018, no pet.) (citing Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d

194, 217 (Tex. 2011)).

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King attached her own declaration to her response, but “[a]ffidavits . . . opposing a

motion for summary judgment must set forth facts, not legal conclusions.” Trinity River Ests.,

L.P. v. DiFonzo, No. 02-08-393-CV, 2009 WL 1506928, at *3 (Tex. App.—Fort Worth May 28,

2009, no pet.) (mem. op.) (citing Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984)).

This is because “[a] conclusory statement is one that does not provide the underlying facts to

support the conclusion, and it is insufficient to create a question of material fact to defeat

summary judgment.” Id. (citing IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143

S.W.3d 794, 803 (Tex. 2004); McIntyre v. Ramirez, 109 S.W.3d 741, 749–50 (Tex. 2003)). “To

constitute competent summary judgment evidence, the testimony must provide an explanation

linking the basis of the conclusion to the facts.” Id. (citing Windsor v. Maxwell, 121 S.W.3d 42,

49 (Tex. App.—Fort Worth 2003, pet. denied)).

King’s response to the no-evidence motion raised three alleged misrepresentations. King

argued that LFA misrepresented that the machine was in stock in November 2020, but King did

not show either that (1) LFA knew the representation was false or made the representation

recklessly without any knowledge of its truth, or (2) she suffered any damages from the alleged

misrepresentation since she accepted delivery of the machine in 2021.

Next, King argued that LFA represented that it would offer lifetime technical support on

its website and in its manual. However, in the face of LFA’s no-evidence motion, King failed to

produce any statement from LFA offering lifetime technical support. Because she provided no

underlying facts that LFA promised lifetime technical support, her declaration on this matter was

conclusory.

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Lastly, King alleged that LFA misrepresented that the machine “would work as

represented,” but King did not further specify what that meant or how LFA fell short of

providing a machine that would work in accordance with its manual. This rendered her

allegation that the machine did not work “as represented” conclusory as well. Instead, King’s

declaration shows that the machine did not work because King “purchase[d] a phase converter

for [a] DELTA 380v-50Hz, rather than a WYE (220v, 3-phase, 60Hz).”

Because King’s summary judgment evidence failed to raise a genuine issue of material

fact, we find that the trial court properly granted LFA’s no-evidence motion for summary

judgment on King’s common law fraud claims.

D. DTPA

King’s third cause of action was under the DTPA, which prohibits “[f]alse, misleading, or

deceptive acts or practices in the conduct of any trade or commerce.” Everett v. TK-Taito,

L.L.C., 178 S.W.3d 844, 857 (Tex. App.—Fort Worth 2005, no pet.) (alteration in original)

(quoting TEX. BUS. & COM. CODE ANN. §§ 17.46(b)(5), (7), (13), (22), (24), 17.50(a)(1)). “To

recover under the DTPA, the plaintiff must show that (1) [s]he is a consumer, (2) the defendant

engaged in a false, misleading, or deceptive act, and (3) the act constituted a producing cause of

economic damages or damages for mental anguish.” Id. (citing TEX. BUS. & COM. CODE ANN.

§ 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)).

On this matter, King’s no-evidence summary judgment response simply stated, “The

evidence set forth in her declaration and deposition clearly meets the elements for her cause of

action un[der] the DTPA, specifically as to [LFA] misrepresenting that the machine was in stock,

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that it would work as represented, and there was lifetime support.” This conclusory response

failed to set forth the facts forming the basis of her conclusion. As explained above, King’s

affidavit and summary judgment evidence failed to show that (1) she suffered any damages from

the machine not initially being in stock, (2) LFA made a promise of providing lifetime technical

support, and (3) the machine did not work in accordance with its manual.

We find that the trial court properly granted LFA’s no-evidence motion for summary

judgment on King’s DTPA cause of action because King failed to bring forth more than a

scintilla of evidence to support each element of this claim.3

E. Breach of Contract

King’s last claim was for breach of contract. “To prevail on a breach of contract claim,

the plaintiff must plead and prove (1) a contract existed between the parties; (2) the contract

created duties; (3) the defendant breached a material duty under the contract; and (4) the plaintiff

sustained damages.” Pena v. Smith, 321 S.W.3d 755, 759 (Tex. App.—Fort Worth 2010, no

pet.). King’s summary judgment response stated that LFA breached its contract because “[t]he

machine delivered was not the machine ordered and contracted for.” Yet, the evidence shows

that King ordered a “FACF Automatic Capsule Filler-FACF-400,” received the manual for the

3
Also, a DTPA cause of action “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. King’s deposition reveals that she was aware that the machine was not in
stock three weeks after purchasing the machine in November 2020. After the machine was installed but not working
in October 2021, King testified that she knew “[r]ight away” that she was not getting the technical support she
thought she would. On November 4, 2021, King believed the machine had experienced an “equipment failure[].”
Even so, King waited until the two-year period expired to raise her DTPA claims.
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machine, and received that model machine. Nothing in the record shows that King did not get

the machine she ordered.

King also alleged that LFA breached the contract because the machine was not in stock,

there was no lifetime support, and it did not work as represented. However, King failed to point

to any portion of any contract that LFA allegedly breached. The terms and conditions of the

contract were provided to King on November 6, 2020. Those terms and conditions made no

representation that the machine was in stock or that there was lifetime support. Specifically,

LFA’s return policy shows that the machine could be returned “within [fourteen] days” and

nothing shows that King even tested the machine during that period. Also, LFA’s warranty was

effective for “[o]ne year from the original purchase date,” expired in November 2021, and did

not cover “[d]amage caused by improper installation, improper or abnormal use, misuse, [or]

neglect.” Had King wanted to take advantage of the warranty, the terms and conditions required

her to ship the machine to LFA at her own expense, which she did not do.

We find that the trial court properly ruled that King failed to raise a genuine issue of

material fact on her breach of contract claim.

In sum, we find that the trial court’s no-evidence summary judgment against King was

proper.

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IV. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: March 26, 2026
Date Decided: April 29, 2026

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