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Burditt v. Whataburger, Inc.
December 14, 2006
Unpublished Opinion

Burditt v. Whataburger, Inc.

Court of Appeals of Texas,

Houston (1st Dist.).

Steve BURDITT, Appellant



No. 01-05-00531-CV.


Dec. 14, 2006.

On Appeal from County Civil Court at Law No. 4, Harris County, Texas, Trial Court Cause No. 817,283.

Attorneys & Firms

William T. Green III, for Steve Burditt.

Hubert A. Crouch III, for Whataburger Inc.

Panel consists of Justices HANKS.



*1 Appellant, Steve Burditt, appeals from the trial court’s judgment rendered upon appellee’s, Whataburger, Inc.’s, amended no-evidence motion for summary judgment. In three issues on appeal, Burditt asserts that the trial court erred in rendering a no-evidence summary judgment on his claims for (1) false imprisonment; (2) negligence; and (3) violation of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA).1

We affirm.


On April 1, 2004, Burditt took his family to a Whataburger restaurant located in Tomball, Texas. He ordered a meal in the drive-through lane of the restaurant and paid by giving the cashier a $20 bill. After receiving the payment and testing the bill with a commercially available counterfeit-detection pen, the cashier became suspicious that the bill was counterfeit. Acting on this suspicion, the cashier informed his manager, Jason Trout, who contacted the Tomball Police Department. Instead of returning Burditt’s change, meal, or original $20 bill, the cashier requested that Burditt drive away from the window and wait. While he waited in the parking lot, Burditt felt as though he could not leave Whataburger’s premises. After “a number of minutes” had passed, Burditt went inside the restaurant. Around the same time that Burditt entered the restaurant, a Tomball Police Officer, K. Yoho, arrived. Burditt was taken outside of the restaurant while Officer Yoho briefly discussed the situation with the Whataburger employees. Officer Yoho took Burditt’s driver’s licence and checked it against the National Crime Information and Texas Crime Information databases. After speaking with the Whataburger employees for approximately one minute, Officer Yoho informed the Whataburger employees and Burditt that he did not believe the bill was counterfeit.2 Because the incident took place in front of his family, Burditt alleges that he was humiliated and embarrassed. In his amended original petition, Burditt alleges the following four causes of actions against Whataburger: (1) false imprisonment; (2) negligence; (3) intentional infliction of emotional distress;3 and (4) violation of the DTPA. Whataburger filed an amended motion for a no-evidence summary judgment challenging each of the four causes of action. The trial court granted Whataburger’s amended motion for no-evidence summary judgment with respect to all causes of action.

Summary Judgment

Standard of Review

A no-evidence summary judgment is “essentially a pretrial directed verdict”; therefore, we will apply the same legal sufficiency standard of review that we apply to a directed verdict. King Ranch, 118 S.W.3d at 751. The no-evidence summary judgment will be sustained if (1) “there is a complete absence of evidence of a vital fact”; (2) “the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact”; (3) “the evidence offered to prove a vital fact is no more than a mere scintilla”; or (4) “the evidence conclusively establishes the opposite of the vital fact” for at least one of the essential elements that is challenged in each cause of action. Id.

*2 In general, we will consider a no-evidence summary judgment improperly granted if the non-movant “brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact” in each of the challenged elements. Id. If reasonable or fair-minded people could differ on the conclusion that the evidence lacks probative force, more than a scintilla of probative evidence exists. Id. If reasonable or fair-minded people could only reach the conclusion that the evidence created no more than a mere surmise or suspicion that a fact exists, then a mere scintilla or less than a scintilla of probative evidence exists for that fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

False Imprisonment

In his first issue on appeal, Burditt argues that the trial court erred in granting summary judgment on his false imprisonment claim. In its no-evidence motion for summary judgment, Whataburger argued that Burditt presented no evidence demonstrating that (1) Whataburger willfully detained Burditt on its premises; (2) Burditt was held without his consent by Whataburger on the premises; or (3) Whataburger acted without authority of law.

In response, Burditt presented an affidavit that provides in its entirety:

On April 1, 2004, I arrived at Whataburger’s location in Tomball and ordered a meal at the drive-through location and gave Whataburger’s employee a $20.00 bill. When neither my meal or change was delivered I was told to drive away from the window and wait. I did so and after waiting a number of minutes went inside. I had neither received my meal, change or even return of the $20.00 bill. Therefore, I do not feel I could leave Whataburger’s premises. At about that time a police officer arrived and I was taken outside. I heard the police officer tell Jason Trout, Whataburger’s employee, that the bill was not counterfeit. Mr. Trout argued with the police officer.

I was present during the deposition of Mr. Trout and heard him testify that he told another Whataburger employee to tell me to move away from the drive through window and wait. Mr. Trout testified he did so to allow time for the police to arrive.

Mr. Trout told the police officer he had used a counterfeit pen detector to determine the bill was counterfeit.

All of this occurred in front of my family. I was humiliated and embarrassed that this occurred.

False imprisonment is a detention of the plaintiff that is (1) willful on the part of the defendant; (2) without consent of the plaintiff; and (3) without legal authority or justification. Dillard Dep’t. Stores, Inc. v. Silva, 148 S.W.3d 370, 372 (Tex.2004).

*3 On appeal, Burditt argues that the “shopkeeper’s privilege” is not applicable because he took nothing from Whataburger, and it is not alleged that he had taken anything. We disagree that the shopkeeper’s privilege does not apply. By the statute’s plain terms, the application of the shopkeeper’s privilege is not dependent on whether Burditt actually stole something. See Zale Jewelry Co. v. Jarman, 227 S.W.2d 857, 858 (Tex.Civ.App.Eastland 1950, writ dism’d) (holding that shopkeeper had right to suspect that customer was passing a fraudulent check).

We overrule Burditt’s first issue on appeal.


In his second issue on appeal, Burditt argues that the trial court erred in granting summary judgment on his negligence cause of action. In its summary judgment motion, Whataburger argued that no evidence showed that (1) Whataburger breached any duty owed to Burditt or (2) Whataburger’s actions proximately caused any compensable damage to Burditt. Burditt responded by arguing that “it is a fact question for the jury to determine whether Burditt was damaged by Whataburger’s conduct and how much.”

A negligence cause of action must be sustained by three essential elements: (1) a legal duty that the defendant owes the plaintiff; (2) a breach of that legal duty; and (3) damages that are proximately caused by the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).

The only summary judgment proof of damages offered by Burditt is a statement in his affidavit that he was humiliated and embarrassed in front of his family as a result of Whataburger’s incorrectly validating his payment.

Embarrassment and humiliation are best categorized in this context as subsets of mental anguish damages. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). A party’s mental anguish damages will generally survive a legal sufficiency challenge if there is evidence regarding the nature, duration, and severity of the damages that establish a disruption to the party’s daily routine. Id.

If a party fails to provide evidence regarding the nature, duration, or severity, then we must look to see if the record “reveals any evidence of ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger’ to support any award of damages.” Id. (quoting Id. at 445. Generally, qualifying events would have to demonstrate “a threat to one’s physical safety or reputation or involved the death of, or serious injury to, a family member.” Id.

*4 In Parkway Co. v. Woodruff, the appellant only presented evidence of being upset, disturbed, and hot as a result of flood damage to her house. Id. The supreme court held that these were statements of mere emotions that did not meet a high degree of mental pain or distress. Id. In addition, the court held that the statements were not direct evidence of nature, duration, and severity of damages, and thus were not legally sufficient to support compensable mental anguish damages. Id.

Likewise, in Saenz v. Fidelity & Guardian Insurance Underwriters, the appellant’s only evidence of mental anguish damages was testimony that she was worried about paying for lifetime medical benefits, an entitlement she claimed to have unknowingly given up in a workers’ compensation settlement. Id. at 614.

Here, Burditt presented no summary judgment evidence of damages except that he was embarrassed and humiliated in front of his family as a result of Whataburger’s incorrect validation of his $20 bill. While being “embarrassed and humiliated” describe the nature of the alleged damages, the statement provides no indication of the severity or duration of the damages that could provide evidence of an interruption to Burditt’s daily routine. Nor does Burditt present any evidence of a high degree of mental pain and distress. Accordingly, we hold that the trial court properly granted the no-evidence summary judgment with respect to Burditt’s negligence cause of action.

We overrule Burditt’s second issue on appeal.


In his third issue on appeal, Burditt argues that the trial court erred in granting summary judgment on his DTPA cause of action because he presented evidence that mental anguish damages are recoverable for “knowing conduct” and that there is a fact issue as to whether or not Whataburger’s conduct satisfies the “knowing” requirement.

In its no-evidence motion for summary judgment, Whataburger argued that Burditt presented no evidence that Whataburger “knowingly and intentionally” violated the DTPA. In response, Burditt argued that “Burditt’s affidavit establishes a fact issue as to whether Whataburger’s conduct violates the DTPA.”

In his amended petition, Burditt alleges that Whataburger engaged in an “unconscionable action” in violation of the DTPA.7 See TEX. BUS. & COM.CODE ANN. § 17.50(b)(1) (Vernon Supp.2006).

*5 ‘Knowingly’ means actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim or, in an action brought under Subdivision (2) of Subsection (a) of Section 17 .50 [breach of an express or implied warranty], actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

Id. § 17.45(9) (Vernon 2002).

The Texas Supreme Court has noted that actual awareness does not mean “merely that a person knows what he is doing; rather, it means that a person knows that what he is doing is false, deceptive, or unfair.” St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 54 (Tex.1998). “In other words, a person must think to himself at some point, ‘Yes, I know this is false, deceptive, or unfair to him, but I’m going to do it anyway.’ “ Id. Here, Burditt’s affidavit contains no evidence that Whataburger acted “knowingly.” Moreover, as we stated in our analysis of his negligence cause of action, Burditt presented no evidence of compensable mental anguish damages. The trial court, therefore, properly granted Whataburger’s no-evidence motion for summary judgment with regard to Burditt’s DTPA claim.

We overrule Burditt’s third issue on appeal.


We affirm the judgment of the trial court.



See TEX. BUS. & COM.CODE ANN. § 17.41 (Vernon 2002).


Burditt’s affidavit alleges that he heard a Whataburger employee and Officer Yoho argue about whether the bill was counterfeit. In his deposition, Officer Yoho claimed that he did not recall the argument.


In response to Whataburger’s amended no-evidence motion for summary judgment, which challenged the intentional infliction of emotional distress cause of action, Burditt did not assert a fact issue with respect to that cause of action. In addition, Burditt did not assert error with respect to the intentional infliction of emotional distress cause of action in his appellate brief. Accordingly, we will not address that cause of action. See TEX.R.APP. P. 38.1(h).


A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property. TEX. CIV. PRAC. & REM.CODE ANN. § 124.001 (Vernon 2005).


Ten to fifteen minutes is a reasonable period of time as a matter of law. Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex.1998).


An example of detaining someone in an unreasonable manner occurs when a contemporaneous search is performed with no probable cause that the plaintiff has any stolen material hidden. Wal-Mart Stores, Inc. v. Cockrell, 61 S.W.3d 774, 779 (Tex.App.Corpus Christi 2001, no pet.). Here, there is no summary judgment evidence that invasive activity similar to a search occurred while Whataburger was validating Burditt’s $20 bill.


“Unconscionable action or course of action” means an act or practice which, to a consumer’s detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree. TEX. BUS. & COM.CODE ANN. § 17.45(5) (Vernon 2002).


Burditt does not allege that he sustained any economic damages.

End of Document