5500 Griggs v. Famcor Oil, Inc. ( 2015 )


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  •                                                                                  ACCEPTED
    14-15-00151-CV
    FOURTEENTH COURT OF APPEALS
    HOUSTON, TEXAS
    9/23/2015 3:26:04 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 14-15-00151-CV
    FILED IN
    14th COURT OF APPEALS
    IN THE COURT OF APPEALS FOR THE FOURTEENTH          JUDICIAL
    HOUSTON,  DISTRICT
    TEXAS
    OF TEXAS AT HOUSTON              9/23/2015 3:26:04 PM
    CHRISTOPHER A. PRINE
    Clerk
    5500 GRIGGS, INC.,
    Appellant,
    V.
    FAMCOR OIL, INC.,
    Appellee.
    On Appeal from the 270TH Judicial District Court
    of Harris County, Texas
    Trial Court Cause No. 2009-21808
    FAMCOR OIL, INC.’S APPELLEE’S BRIEF
    Peter J. Bambace
    State Bar No. 01660900
    peter@holmbambace.com
    Kayla J. Chudej
    State Bar No. 24094589
    ORAL ARGUMENT REQUESTED              kchudej@holmbambace.com
    Holm Bambace LLP
    1010 Lamar Street, Suite 1100
    Houston, Texas 77002
    (713) 652-9700 – Telephone
    (713) 652-9702 – Facsimile
    ATTORNEYS FOR APPELLEE,
    FAMCOR OIL, INC.
    IDENTITY OF PARTIES AND COUNSEL
    Appellants                  5500 Griggs, Inc.
    Counsel for Appellants      Jerry L. Schutza
    State Bar No. 17853800
    11 Greenway Plaza, Suite 2820
    Houston, Texas 77046
    (713) 961-1200 – Telephone
    (713) 961-0941 – Facsimile
    Appellees                   Famcor Oil, Inc.
    Counsel for Appellees       Peter J. Bambace
    State Bar No. 01660900
    peter@holmbambace.com
    Kayla J. Chudej
    State Bar No. 24094589
    kchudej@holmbambace.com
    Holm Bambace LLP
    1010 Lamar Street, Suite 1100
    Houston, Texas 77002
    (713) 652-9700 – Telephone
    (713) 652-9702 – Facsimile
    ii
    TABLE OF CONTENTS
    Page
    Identity of Parties and Counsel ................................................................... ii
    Index of Authorities .................................................................................... iv
    Statement of the Case ................................................................................ 1
    Issues Presented ........................................................................................ 3
    Contest of Appellant’s Statement of Facts .................................................. 4
    Statement of Facts ...................................................................................... 4
    Summary of the Argument .......................................................................... 6
    Standard of Review .................................................................................... 7
    Arguments .................................................................................................. 8
    A.      The Trial Court Should Not Have Considered Appellant’s
    Affidavits as Summary Judgment Evidence ....................................... 8
    B.      The Trial Court Did Not Err in Granting Famcor’s
    Second Motion for No-Evidence Summary Judgment Evidence ...... 12
    1.      Appellant Failed to Produce Sufficient Evidence of a Valid,
    Enforceable Contract and that Appellant is a
    Proper Party to Sue for Breach of Contract............................. 13
    2.      Appellant Failed to Produce Sufficient Evidence that it
    Performed or Tendered Performance Under the Contract ...... 15
    3.      Appellant Failed to Produce Sufficient Evidence that
    Famcor Breached the Contract ............................................... 16
    4.      Appellant Failed to Produce Sufficient Evidence that it
    Suffered Damages as a Result of Famcor’s Breach ............... 17
    iii
    Conclusion and Prayer .............................................................................. 19
    Certificate of Service ................................................................................. 21
    Certificate of Compliance .......................................................................... 22
    iv
    INDEX OF AUTHORITIES
    Cases                                                                                     Page
    B&W Sup. v. Beckman,
    
    305 S.W.3d 10
    (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ...... 12
    Boerjan v. Rodriguez,
    
    436 S.W.3d 307
    (Tex. 2014) .................................................................. 7
    Brownlee v. Brownlee,
    
    665 S.W.2d 111
    (Tex. 1984) ................................................................ 10
    Choctaw Prop., LLC v. Aledo ISD,
    
    127 S.W.3d 235
    (Tex. App.—Waco 2003, no pet.) ............................... 10
    Dolcefino v. Randolph,
    
    19 S.W.3d 906
    (Tex. App.—Houston [14th Dist.] 2000, pet. denied) .... 10
    Dow Chem. Co. v. Francis,
    
    46 S.W.3d 237
    (Tex. 2001) .................................................................... 7
    Ford Motor Co. v. Ridgway,
    
    135 S.W.3d 598
    (Tex. 2004) .................................................................. 6
    Haynes v. City of Beaumont,
    
    35 S.W.3d 166
    (Tex. App.—Texarkana 2000, no pet.) ......................... 10
    Holloway v. Dekkers,
    
    380 S.W.3d 315
    (Tex. App.—Dallas 2012, no pet.) ................................ 9
    Johnson v. Brewer & Pritchard, P.C.,
    
    73 S.W.3d 193
    (Tex. 2002) .................................................................... 8
    King Ranch, Inc. v. Chapman,
    
    118 S.W.3d 742
    (Tex. 2003) .................................................................. 8
    Mandell v. Hamman Oil & Ref. Co.,
    
    822 S.W.2d 153
    (Tex. App.—Houston [1st Dist.] 1991, writ denied) ..... 12
    v
    Mercer v. Daoran Corp.,
    
    676 S.W.2d 580
    (Tex. 1984) .................................................................. 9
    Merrell Dow Pharms., Inc. v. Havner,
    
    953 S.W.2d 706
    (Tex. 1997) .................................................................. 8
    Nall v. Plunkett,
    
    404 S.W.3d 552
    (Tex. 2013) .................................................................. 7
    Selz v. Friendly Chevrolet, LTD.,
    
    152 S.W.3d 833
    (Tex. App.—Dallas 2005, no pet.) .............................. 10
    Stone v. Midland Multifamily Equity REIT,
    
    334 S.W.3d 371
    (Tex. App.—Dallas 2011, no pet.) ................................ 9
    Trejo v. Laredo Nat’l Bank,
    
    185 S.W.3d 43
    (Tex. App.—San Antonio 2005, no pet.)....................... 10
    Wal-Mart Stores, Inc. v. Merrell,
    
    313 S.W.3d 837
    (Tex. 2010) ...................................................... 9, 10, 13
    Rules
    TEX. R. CIV. P. 166a(c) .............................................................................. 18
    TEX. R. CIV. P. 166a(i) ................................................................................. 8
    TEX. R. CIV. P. 193.6 ................................................................................. 11
    vi
    ABBREVIATIONS
    “C.R.” means the Clerk’s Record that was filed with this Court on May 6,
    2015.
    vii
    STATEMENT OF THE CASE
    1.   On April 7, 2009, Appellant, 5500 GRIGGS, INC. (“Appellant”), filed
    its Original Petition, a breach of contract real estate claim, against
    Appellee, FAMCOR OIL, INC (“Famcor”). C.R. 3–10.
    2.   On September 30, 2009, Famcor filed its Original Answer. C.R. 11–
    12. In its Original Answer, Famcor entered a general denial of matters pled
    by Appellant pursuant to Rule 92 of the Texas Rules of Civil Procedure.
    C.R. 11–12.
    3.   On June 20, 2014, Famcor filed its First Amended Original Answer.
    C.R.13–15.
    4.   On October 23, 2014, Famcor filed its Second Motion for No-
    Evidence Summary Judgment. C.R. 16–23.
    5.   On November 7, 2014, Appellant filed its Response to Defendant’s
    Second Motion for No-Evidence Summary Judgment with Exhibits. C.R.
    24–117.
    6.   On November 13, 2014, Famcor filed its Reply in Support of its
    Second Motion for No-Evidence Summary Judgment. C.R. 118–127.
    7.   On November 21, 2014, the Trial Court signed the Order Granting
    Defendant’s Summary Judgment. C.R. 147–148.
    1
    8.    On December 19, 2014, Appellant filed a Motion for Reconsideration
    of Summary Judgment and for New Trial. C.R. 149–150.
    9.    On December 29, 2014, Famcor filed its Response to Plaintiff’s
    Motion for Reconsideration and for New Trial. C.R. 151–157.
    10.   On February 16, 2015, Appellant filed its Notice of Appeal. C.R. 164.
    2
    ISSUES PRESENTED
    1.   Did the Trial Court err by considering Appellant’s affidavits as
    summary judgment evidence?
    2.   Did the Trial Court err by granting Famcor’s Second Motion for No-
    Evidence Summary Judgment?
    3
    CONTEST OF APPELLANT’S STATEMENT OF FACTS
    Famcor contests the Statement of Facts contained in Appellant’s
    Opening Brief on the Merits.     The Statement of Facts is comprised of
    statements taken verbatim from the section of Appellant’s Response to
    Famcor’s Second Motion for No Evidence Summary Judgment labeled
    “There Is Evidence to Support Plaintiff’s Claims.” Accordingly, Appellant’s
    Statement of Facts is speculative, conclusory, and assumes facts that are
    not in evidence. Specifically, Appellant’s contention that Famcor’s drilling
    and operation of the well has caused damage to Griggs because it caused
    a reduction of the value of the Property is speculative, conclusory, and
    assumes facts that are not in evidence. Additionally, Appellant’s reliance
    on the Affidavit of Joe Stanfield is improper as the affidavit contains
    conclusory and speculative statements without pointing to any facts
    supporting his conclusions. As such, Mr. Stanfield’s affidavit is insufficient
    as a matter of law and should not be relied upon.
    STATEMENT OF FACTS
    This appeal arises out of a breach of contract lawsuit that Appellant
    filed against Famcor on April 7, 2009. In its Original Petition, Appellant
    alleged that it owned the surface rights of the property onto which Famcor
    entered and drilled one or more wells. C.R. 3–6. Appellant further alleged
    4
    that this property was subject to a Surface Use Restrictions Agreement (the
    “SUA”) which provided that Famcor had to compensate Appellant for any
    reduction in the fair market value of the surface estate caused by Famcor’s
    drilling. C.R. 3–6. However, Appellant failed to produce any evidence that
    any drilling by Famcor actually caused a reduction in the fair market value
    of the property.
    Famcor provided Appellant with more than adequate time for
    discovery before it initially requested summary judgment on June 20, 2014.
    At that point, the case was more than five years old and was on its seventh
    trial setting.     Appellant had gone four years without responding to
    interrogatories or requests for production, designating necessary experts,
    or otherwise identifying the amount or method of calculating damages as
    required by law. Appellant requested that the Trial Court give it two to
    three more weeks to supplement its discovery and produce an appraisal
    and expert report.      The Trial Court graciously consented and denied
    Famcor’s summary judgment motion without prejudice. Appellant never
    produced the promised supplementation, appraisal, or expert report, and
    Famcor filed its Second Motion for No-Evidence Summary Judgment on
    October 23, 2014. C.R. 16–23. The Trial Court granted Famcor’s motion
    and Appellant filed this appeal in response. C.R. 147–148.
    5
    SUMMARY OF THE ARGUMENT
    Appellant challenges the Trial Court’s granting Famcor’s Second
    Motion for No-Evidence Summary Judgment on Appellant’s breach of
    contract claim. In its brief filed with this Court, Appellant not only misstated
    the appropriate legal standard used in reviewing no-evidence summary
    judgments, but also wrongfully asserted the issue presented to this Court.
    Appellant stated, “[t]he issue is whether the evidence offered by Griggs
    established any evidence that Famcor caused any reduction in the value of
    the Property.”
    The Trial Court did not err in granting Famcor’s Second Motion for
    No-Evidence Summary Judgment because Appellant failed to provide
    sufficient evidence of each element of its breach of contract claim. In its
    Motion, Famcor challenged each element of Appellant’s breach of contract
    claim, thus Appellant was required produce evidence of each element
    challenged or else the summary judgment stands. See Ford Motor Co. v.
    Ridgway, 
    135 S.W.3d 598
    , 600 (Tex. 2004). Since Appellant failed to bring
    forth sufficient evidence of each challenged element, the Trial Court did not
    err in granting Famcor’s Second Motion for No-Evidence Summary
    Judgment.
    6
    If Appellant wanted to argue that Famcor’s challenge to each element
    of the breach of contract claim was unclear, special exceptions were
    required. See, e.g., Nall v. Plunkett, 
    404 S.W.3d 552
    , 555 (Tex. 2013)
    (“[a]n exception is required should a non-movant wish to complain on
    appeal that the grounds relied on by the movant were unclear or
    ambiguous.”). Because Appellant did not file special exceptions, and the
    Trial Court granted summary judgment without specifying the grounds
    relied upon, summary judgment stands unless Appellant can produce
    evidence of each element.     See, e.g., Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 242 (Tex. 2001). Appellant did not produce evidence of each
    element of its breach of contract claim.   Accordingly, this Court should
    affirm the Trial Court’s granting of Famcor’s Second Motion for No-
    Evidence Summary Judgment.
    STANDARD OF REVIEW
    In reviewing a no-evidence summary judgment, an appellate court
    must consider all the evidence in the light most favorable to the party
    against whom the summary judgment was rendered, crediting evidence
    favorable to that party if reasonable jurors could, and disregard contrary
    evidence unless reasonable jurors could not. See Boerjan v. Rodriguez,
    
    436 S.W.3d 307
    , 311–12 (Tex. 2014). The nonmovant has the burden to
    7
    produce summary judgment evidence raising a genuine issue of material
    fact as to each challenged element of its cause of action. TEX. R. CIV. P.
    166a(i); Johnson v. Brewer & Pritchard, P.C., 
    73 S.W.3d 193
    , 206 (Tex.
    2002). “A no evidence point will be sustained when (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.” King Ranch, Inc. v. Chapman, 
    118 S.W.3d 742
    , 751 (Tex. 2003)
    (quoting Merrell Dow Pharms., Inc. v. Havner, 
    953 S.W.2d 706
    , 711 (Tex.
    1997)).
    ARGUMENTS
    A.    The Trial Court Should Not Have Considered Appellant’s
    Affidavits as Summary Judgment Evidence.
    In its response to Famcor’s Second Motion for No-Evidence
    Summary Judgment, Appellant offered as summary judgment evidence the
    affidavits of Sharon Lewis and of Joseph Stanfield in an attempt to prove
    that it suffered damages. C.R. 83–87. In reply, Famcor objected to these
    affidavits on several grounds.      C.R. 124–125.      Famcor re-asserts its
    objections to Appellant’s summary judgment affidavits again on appeal and
    is permitted to do so although the record does not evidence a ruling on
    8
    those objections at the Trial Court. See Stone v. Midland Multifamily Equity
    REIT, 
    334 S.W.3d 371
    , 374 (Tex. App.—Dallas 2011, no pet.) (explaining
    that a defect in the substance of an affidavit is not waived by failure to
    obtain a ruling from the trial court). Texas courts treat objections to the
    substance and to the form of affidavits differently—objections to the form of
    an affidavit is waived unless a party obtains a ruling on that objection. 
    Id. Conversely, an
    objection to the substance of a summary judgment affidavit
    “may be raised for the first time on appeal” and, if meritorious, “leave[s] the
    evidence legally insufficient.” 
    Id. The Texas
    Supreme Court in Wal-Mart Stores, Inc. v. Merrell, stated,
    “[o]pinion testimony that is conclusory or speculative is not relevant
    evidence, because it does not tend to make the existence of a material fact
    ‘more probable or less probable’ [and] [s]uch conclusory statements cannot
    support a judgment even when no objection was made to the statements at
    trial.” 
    313 S.W.3d 837
    , 839 (Tex. 2010). Additionally, conclusions in an
    affidavit are insufficient either to support summary judgment or to raise a
    fact issue in response to a summary judgment motion. See Holloway v.
    Dekkers, 
    380 S.W.3d 315
    , 323 (Tex. App.—Dallas 2012, no pet.) (citing
    Mercer v. Daoran Corp., 
    676 S.W.2d 580
    , 583 (Tex. 1984). The Texas
    Supreme Court in Merrell concluded that the trial court, while having
    9
    admitted the expert’s evidence over Wal-Mart’s objection, had properly
    granted summary judgment because “[s]uch conclusory statements cannot
    support a judgment even when no objection was made . . 
    .” 313 S.W.3d at 840
    (Tex. 2010).
    Famcor re-asserts its objections to the affidavit of Sharon Lewis. Ms.
    Lewis’ affidavit contains opinions which required scientific, technical, or
    other specialized knowledge and Ms. Lewis was never designated as
    expert, was never qualified as an expert, and may not offer expert opinions.
    Famcor objects as Ms. Lewis’ affidavit contains legal conclusions. Famcor
    further objects as Ms. Lewis’ affidavit is conclusory and speculative as
    matter of law because (1) it fails to provide sufficient underlying facts to
    support her conclusions1; (2) fails to specify factual matters such as the
    time, place, and exact nature of her allegations2; and (3) amounts to
    “nothing more than sworn repetitions of the allegations in [the] pleadings.”3
    As a result, Famcor again asserts that Ms. Lewis’ affidavit amounts to no
    1
    Trejo v. Laredo Nat’l Bank, 
    185 S.W.3d 43
    , 50 (Tex. App.—San Antonio 2005, no
    pet.); Haynes v. City of Beaumont, 
    35 S.W.3d 166
    , 178 (Tex. App.—Texarkana 2000,
    no pet.); Choctaw Prop., LLC v. Aledo ISD, 
    127 S.W.3d 235
    , 243 (Tex. App.—Waco
    2003, no pet.); Dolcefino v. Randolph, 
    19 S.W.3d 906
    , 930 (Tex. App.—Houston [14th
    Dist.] 2000, pet. denied).
    2
    Brownlee v. Brownlee, 
    665 S.W.2d 111
    , 112 (Tex. 1984).
    3
    Selz v. Friendly Chevrolet, LTD., 
    152 S.W.3d 833
    , 837 (Tex. App.—Dallas 2005, no
    pet.).
    10
    evidence as a matter of law. Famcor respectfully asks this Court sustain
    these objections and strike Ms. Lewis’ affidavit from Appellant’s summary
    judgment evidence.
    Famcor also re-asserts its objections to the affidavit of Joseph
    Stanfield. Famcor objects as Mr. Stanfield’s affidavit, report, and expert
    opinions are mandatorily excluded pursuant to Rule 193.6 of the Texas
    Rules of Civil Procedure. TEX. R. CIV. P. 193.6. This affidavit and report
    were produced responsive to discovery that had been pending for more
    than four years, approximately ten days prior to trial. Famcor objects as
    Mr. Stanfield’s affidavit uses an improper measure of damages. Appellant
    admitted in its pleadings that the proper measure of damages in this matter
    would be the reduction in “fair market value” of the estate. C.R. 4. Mr.
    Stanfield’s affidavit contains several allegations of “diminished value,” but
    contains no representations of reduction in “fair market value” of the estate.
    Famcor further objects as Mr. Stanfield’s affidavit is conclusory and
    speculative as a matter of law and does not raise any fact issues. As a
    result, Famcor again asserts that Mr. Stanfield’s affidavit amounts to no
    evidence as a matter of law. Famcor respectfully asks this Court sustain
    these objections and strike Mr. Stanfield’s affidavit from Appellant’s
    summary judgment evidence.
    11
    B.   The Trial Court Did Not Err in Granting Famcor’s Second Motion
    for No-Evidence Summary Judgment.
    Famcor challenged each element of Appellant’s breach of contract
    claim in its Second Motion for No-Evidence Summary Judgment.            As
    previously stated, Appellant must produce evidence of each challenged
    element or summary judgment will stand. Therefore, to defeat the Trial
    Court’s granting of summary judgment, Appellant must prove the following
    essential elements:
    (1)   There is a valid, enforceable contract;
    (2)   Appellant is a proper party to sue for breach of contract;
    (3)   Appellant performed or tendered performance;
    (4)   Famcor breached the contract; and
    (5)   Appellant suffered damages as a result of Famcor’s breach.
    See B&W Sup. v. Beckman, 
    305 S.W.3d 10
    , 16 (Tex. App.—Houston [1st
    Dist.] 2009, pet. denied); Mandell v. Hamman Oil & Ref. Co., 
    822 S.W.2d 153
    , 161 (Tex. App.—Houston [1st Dist.] 1991, writ denied). Appellant did
    not produce, and the record before this Court does not contain, any
    evidence for each challenged element sufficient to survive appeal of the
    Trial Court’s granting of Famcor’s Second Motion for No-Evidence
    Summary Judgment.
    12
    1.    Appellant Failed to Produce Sufficient Evidence of a Valid,
    Enforceable Contract and that Appellant is a Proper Party to
    Sue for Breach of Contract.
    Appellant did not produce, and the record before this Court doesn’t
    contain, sufficient evidence that the contract made basis of this suit, the
    SUA, is valid and enforceable and that Appellant is a proper party to sue for
    breach of contract. First, Appellant has not sufficiently shown that the SUA
    applies to the property in question. The SUA states, in paragraph A on
    page 1, that the tracts covered by the deed are in Exhibits A and B of the
    SUA. C.R. 37. Only the Preamble of said Exhibit A was produced in
    response to summary judgment (or ever), and does not show the properties
    covered. Exhibit B of the SUA was not produced at all.
    The only possible argument Appellant could have made for
    application of the SUA to the property in question is the affidavit testimony
    of Sharon Lewis. Ms. Lewis, the president and sole shareholder of 5500
    Griggs, Inc., states in her affidavit that the SUA applies. C.R. 83–87. Ms.
    Lewis’ affidavit is clearly speculative and conclusory and does not cite any
    foundation for which she bases her conclusions (she did, however, cite to a
    copy of the SUA attached, which was also missing the exhibits described
    above). See, e.g., Wal-Mart Stores, Inc. v. Merrell, 
    313 S.W.3d 837
    , 839
    (Tex. 2010). With regard to Ms. Lewis’ affidavit, the court is barred by rules
    13
    of law or of evidence from giving weight to the only evidence offered to
    prove a vital fact. As such, Ms. Lewis’ affidavit is not relevant evidence that
    Appellant can rely upon to support its claim. Without further evidence that
    the SUA actually does apply to the property in question, Appellant failed to
    provide sufficient proof that the contract was valid and enforceable.
    Secondly, Appellant did not sufficiently show that the SUA applies to
    Famcor, even if it applies to the property in question. The obligations in
    question under the SUA apply to a category identified as the “Mineral
    Owner.” C.R. 37. The term “Mineral Owner” is contractually defined in the
    introductory paragraph of the SUA as a company called Pure Resources,
    L.P., its successors, lessees, assigns, and Affiliates. C.R. 37. Appellant
    did not produce any evidence that Famcor fits that description or would
    otherwise be bound by the contract. There is no evidence before this Court
    showing that SUA even applies to Famcor because Appellant has yet to
    show that Famcor fits the definition of “Mineral Owner” under the contract.
    There is a complete absence of evidence of this vital fact, another reason
    why Appellant did not prove that the contract was valid and enforceable.
    Lastly, Appellant failed to sufficiently show that it owned the property
    continuously during the time in question. More specifically, Appellant did
    not produce sufficient evidence that 5500 Griggs, Inc. owned the property
    14
    at the time of the alleged damages and notice.            The only evidence
    Appellant has produced is the affidavit of Sharon Lewis, which only states
    that Appellant purchased the property in or around 2003, not that it has
    owned it continuously since that time. Ms. Lewis’ affidavit, as stated above,
    is not evidence as a matter of law, and does not sufficiently prove that
    Appellant has owned the property in question continuously since it was
    purchased in 2003. Appellant cannot rely on Ms. Lewis’ affidavit as any
    evidence of the continuity of ownership of the property in question. Without
    any evidence proving that Appellant owned the property continuously
    during the time in question, Appellant failed to prove that it is a proper party
    to sue for breach of contract.
    In sum, Appellant did not sufficiently show that the SUA applies to the
    property in question, that the SUA applies to the Famcor, or that Appellant
    has continuously owned the property during the time in question.
    Accordingly, Famcor’s summary judgment should be sustained due to
    Appellant’s failure to provide sufficient evidence of the first and second
    challenged elements of its breach of contract claim.
    2.    Appellant Failed to Produce Sufficient Evidence that it
    Performed or Tendered Performance Under the Contract
    Appellant failed to produce sufficient evidence that it performed or
    tendered performance under the contract. Appellant has yet to address
    15
    this element directly. The best Appellant could have argued with regard to
    this element of its breach of contract claim was that it provided notice of the
    alleged damages. It may be noteworthy, as Appellant completely avoided
    addressing this in its brief, that Appellant’s notice of the alleged damages
    demanded $500,000 for a dry well and no pipeline and $3,000,000 for one
    successful producing well. C.R. 62. Appellant now admits that the alleged
    damages were actually $33,100. Regardless of the amount of the alleged
    damages, Appellant failed to explain—and certainly did not establish—how
    providing Famcor with notice of alleged damages is the performance or
    tender of performance required by the contract. Without any explanation of
    the conduct required to satisfy this element or any evidence showing that
    this element has been satisfied, Appellant did not raise a fact issue of this
    challenged element in order to defeat the granting of Famcor’s summary
    judgment.
    3.    Appellant Failed to Produce Sufficient Evidence that Famcor
    Breached the Contract
    Appellant failed to produce sufficient evidence that Famcor breached
    the contract. Again, Appellant has not addressed this element directly, and
    the only argument Appellant could have made (although it did not argue
    this, or anything, at all) was that it sent notice of damages to Famcor.
    Appellant did not describe what a breach of the SUA would look like, but
    16
    only suggests that simply not paying damages is a breach. Appellant had
    the burden of proof at the Trial Court to provide evidence of its breach of
    contract claim, which required sufficient proof that Famcor did in fact
    breach the contract. The notice sent to Famcor is far less than a mere
    scintilla of evidence offered to prove a vital fact of breach of contract as it
    only shows the alleged damages.
    Most importantly, Appellant offered no evidence whatsoever that
    Famcor did not pay the amounts allegedly owed.            Appellant bore the
    burden of showing that Famcor did not actually compensate Appellant for
    the damages Appellant claimed in its notice. Appellant provided no such
    evidence. Because Appellant did not describe what actually constitutes a
    breach of the SUA, and because there is no evidence that Famcor did not
    pay the amounts allegedly owed, there is a complete absence of evidence
    of the vital fact that Famcor breached the contract. Appellant failed to
    produce sufficient evidence of this challenged element of its breach of
    contract claim, so Famcor’s summary judgment should be upheld.
    4.    Appellant Failed to Produce Sufficient Evidence that it Suffered
    Damages as a Result of Famcor’s Breach
    Appellant failed to produce sufficient evidence that it suffered
    damages as a result of Famcor’s alleged breach of contract. In an attempt
    to prove that it suffered damages, Appellant relied upon the affidavits of
    17
    Sharon Lewis and of Joseph Stanfield. Ms. Lewis plainly asserted that
    Appellant suffered a total loss of twenty to thirty acres valued at $7,500 per
    acre, diminished value of the remaining acreage at least by $2,000 per
    acre, environmental and reparation clean up costs, and general clean up
    costs. Ms. Lewis cited no authority for her guesses. Mr. Stanfield stated
    that Appellant has suffered total losses of value for nine acres, diminished
    value for an additional sixteen acres, resulting in a total of $33,100. Mr.
    Stanfield failed to use the proper measure of damages and failed to make
    any reference to the use of the lands he appraised.
    For the reasons stated above and throughout this brief, these
    affidavits are deemed no evidence as a matter of law as they are
    conclusory and speculative. In order for this Court to consider the affidavits
    as evidence that Appellant suffered damages, the testimony must be
    uncontroverted, clear, positive, direct, credible, free from contradictions and
    inconsistencies, and readily controvertible.       TEX. R. CIV. P. 166a(c).
    Because the affidavits do not provide underlying facts to support each
    affiant’s conclusions, and because they are nothing more than sworn
    repetitions of the allegations in the pleadings, the affidavits are insufficient
    to defeat no-evidence summary judgment.
    18
    However, should this court overrule Famcor’s objections to
    Appellant’s summary judgment evidence, Appellant did not produce
    anything further that creates fact issues regarding the other elements
    Appellant was required to prove.       Even if the affidavits produced by
    Appellant created a fact issue as to whether Appellant suffered damages,
    those affidavits do not create fact issues as to the other elements of
    Appellant’s breach of contract claim. Appellant did not produce, and the
    record before this Court does not contain, sufficient evidence that there is a
    valid enforceable contract; that Appellant is a proper party to sue for breach
    of contract; that Appellant performed or tendered performance; and that
    Famcor breached the contract.       For these reasons, this Court should
    uphold Famcor’s No-Evidence Summary Judgment.
    CONCLUSION AND PRAYER
    For the reasons stated above, Famcor respectfully requests that this
    Court affirm the Trial Court’s November 21, 2014 Order granting its Second
    Motion for No-Evidence Summary Judgment and enter an opinion
    regarding the same. Famcor also requests that this Court grant it all other
    and further relief, general or special, at law and in equity, to which that it
    may be justly entitled.
    19
    Respectfully submitted,
    HOLM BAMBACE LLP
    By: /s/ Peter J. Bambace
    Peter J. Bambace
    State Bar No. 01660900
    peter@holmbambace.com
    Kayla J. Chudej
    State Bar No. 24094589
    kchudej@holmbambace.com
    Holm Bambace LLP
    1010 Lamar Street, Suite 1100
    Houston, Texas 77002
    (713) 652-9700 – Telephone
    (713) 652-9702 – Facsimile
    ATTORNEYS FOR APPELLEE,
    FAMCOR OIL, INC.
    20
    CERTIFICATE OF SERVICE
    This will certify that pursuant to Texas Rule of Appellate Procedure
    9.5, a true and correct copy of the above and foregoing Famcor Oil, Inc.’s
    Appellee’s Brief was forwarded to the following counsel-of-record via e-file,
    e-mail, and facsimile on this the 23rd day of September, 2015.
    Jerry L. Schutza
    State Bar No. 17853800
    11 Greenway Plaza, Suite 2820
    Houston, Texas 77046
    (713) 961-1200 – Telephone
    (713) 961-0941 – Facsimile
    Counsel for Appellant,
    5500 Griggs, Inc.
    /s/ Peter J. Bambace
    Peter J. Bambace
    21
    CERTIFICATE OF COMPLIANCE
    This will certify that pursuant to Texas Rule of Appellate Procedure
    9.4(i)(3), the foregoing Famcor Oil, Inc.’s Appellee’s Brief complies with
    Texas Rule of Appellate Procedure 9.4(i)(2)(B)’s word-count limitation for
    computer-generate documents. Specifically, the undersigned certifies that
    Famcor Oil, Inc.’s Appellee’s Brief contains 3,557 words.
    /s/ Peter J. Bambace
    Peter J. Bambace
    22