Juan 0. Lopez D/B/A J.L. Construction Co. v. Dave H. Bucholz and Mary A. Bucholz ( 2015 )

ACCEPTED
03-15-00034-CV
5930003
THIRD COURT OF APPEALS
July 7, 2015 AUSTIN, TEXAS
7/2/2015 7:46:36 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00034-CV
RECEIVED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS 7/2/2015 7:46:36 PM
JEFFREY D. KYLE
Clerk
JUAN O. LOPEZ d/b/a J.L. CONSTRUCTION CO,
Appellant
v.
DAVE BUCHHOLZ and MARY A. BUCHHOLZ
Appellees
On Appeal from the 274th District Court, Comal County, Texas
Trial Court Cause No. C2014-0259C
APPELLEE’S BRIEF
THE VETHAN LAW FIRM, P.C.
Joseph L. Lanza
Texas Bar No. 00784447
J. Seth Grove
Texas Bar No. 24069833
8700 Crownhill Blvd., Suite 302
San Antonio, Texas 78209
Telephone (210) 824-2220
Facsimile (210) 826-2223
Appellate Counsel for Dave and Mary Buchholz
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................... ii
INDEX OF AUTHORITIES ......................................................................... iii
STATEMENT OF THE CASE ................................................................... viii
STATEMENT REGARDING ORAL ARGUMENT ................................... ix
DESIGNATION OF RECORD REFERENCES ............................................x
INTRODUCTION ...........................................................................................1
STATEMENT OF FACTS ..............................................................................1
SUMMARY OF ARGUMENT .......................................................................7
ARGUMENT .................................................................................................10
CONCLUSION..............................................................................................49
ii
INDEX OF AUTHORITIES
Texas Supreme Court Cases
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd.,
249 S.W.3d 380, 389 n. 32 (Tex. 2008)...................................................................16
BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 842 (Tex. 1990) ........................48
City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995) ...............................10
Da-Col Paint Mfg. Co. v. American Indem. Co.,
517 S.W.2d 270, 273 (Tex. 1974)...........................................................................42
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) .....10
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) ..................................................17
Forbes, Inc. v. Granada Biosciences, 124 S.W.3d 167, 172 (Tex. 2003) ...............26
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 599 (Tex. 2004) .............................26
Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010) ..........................27
General Servs. Comm’n v. Little-Tex. Insulation Co.,
39 S.W.3d 591, 598 n. 1 (Tex. 2001).......................................................................34
Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992) ..........39
Hayek v. Western Steel Co., 478 S.W.2d 786, 790-91 (Tex. 1972) ........................48
In re Delta Lloyds Ins. Co. of Houston, 339 S.W.3d 384, 392 n. 7 (Tex. 2008) .....26
Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) ....................................................17
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009)...........................................................................26
McCamant v. Batsell, 59 Tex. 363 (1883) ...............................................................37
iii
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) ........................25
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985) ........................26
Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860 (Tex. 1979) ...................35
Strang v. Pray, 89 Tex. 525, 35 S.W. 1054, 1056 (1856) .......................................48
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) ...............................26
T.O. Stanley Boot Co., Inc. v. Bank of El Paso,
847 S.W.2d 218, 221 (Tex. 1992)............................................................................33
Travelers Ins. Co. v, Joachim, 315 S.W.3d 860,862 (Tex.2010) ............................25
Truly v. Austin, 744 S.W.2d 934, 936 (Tex.1988) ...................................................41
Texas Courts of Appeal Cases
Behr Southerland Construction, Inc. v. H.W. Wahlers, Inc.,
No. 04-00-0069-CV, 2001 WL 729292, at *2
(Tex.App.—San Antonio June 29, 2001) ................................................................17
Becker, Smith & Page, Inc. v. Wm. Cameron & Co.,
22 S.W.2d 951, 952 (Tex. Civ. App. -- Waco 1929, writ dism'd) ...........................36
Bookstall, Inc. v. John Roberts, Inc.,
517 S.W.2d 451, 452 (Tex. Civ. App. -- Austin 1974, no writ) ..............................36
City of Ingleside v. Steward, 554 S.W.2d 939, 943
(Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.) ..........................................38
Coastal States Crude Gathering Co. v. Natural Gas Odorizing, Inc.,
899 S.W.2d 289, 291 (Tex.App.—Houston[1st Dist.] 1995, writ denied)...............49
Copeland v. Hunt, 434 S.W.2d 156, 158
(Tex. Civ. App. -- Corpus Christi 1968, writ ref'd n.r.e.) ........................................36
Crockett v. Brady, 455 S.W.2d 807, 808
(Tex.Civ.App.—Austin 1970, no writ) ....................................................................38
iv
Crocket v. Sampson, 439 S.W.2d 355, 358
(Tex.Civ.App.—Austin 1969, no writ) ....................................................................38
De La Morena v. Ignenieria E Maquinaria De Guadalupe, S.A.,
56 S.W.3d 652 (Tex.App.—Waco 2001, no pet.) ...................................................13
Fieldtech Avionics & Instruments, Inc. v. ComponentControl.com, Inc.,
262 S.W.3d 813 (Tex.App.—Fort Worth 2008, no pet.) .........................................13
Gen. Homes, Inc. v. Denison, 625 S.W.2d 794, 796
(Tex. App.—Houston [14th Dist.] 1981, no writ) ....................................................41
Gibson v. Bostick Roofing & Sheet Metal Co.,
148 S.W.3d 482, 490 (Tex. App.—El Paso 2004, no pet.)............................... 37, 42
Hassler v. Texas Gypsum Co., 525 S.W.2d 53, 54
(Tex.Civ.App.--Dallas 1975, no writ)............................................................... 36, 37
HECI Exploration Co. v. Clajon Gas Co.,
843 S.W.2d 622, 638 (Tex. App.--Austin 1992, writ denied) .................................48
Hollingsworth v. Nw. Nat’l Ins. Co.,
522 S.W.2d 242, 245 (Tex.App.—Texarkana 1975, no writ) .................................35
Houston Med. Testing Services, Inc. v. Mintzer,
417 S.W.3d 691, 695 (Tex. App.—Houston [14th Dist.] 2013, no pet.)..................41
Industrial Structure & Fabrication v. Arrowhead Indus. Water,
888 S.W.2d 840, 845, (Tex.App.—Houston 1st Dist. 1994, no pet.)................ 48, 49
Jimoh v. Nwogo, 2014 Tex. App. LEXIS 13797, 2014 WL 7335158
(Tex. App. Houston 1st Dist. Dec. 23, 2014) ...........................................................46
Johnston v. Kruse, 261 S.W.3d 895, 902
(Tex.App.—Dallas 2008, no pet.)..................................................................... 18, 19
Kelly v. Brenham Floral Co., No. 01-12-01000-CV,
2014 Tex. App. LEXIS 9464, 2014 WL 4219448, at *4
(Tex. App.—Houston [1st Dist.] Aug. 26, 2014, no pet.) (mem. op.) .....................46
v
McFarland v. Sanders,
932 S.W.2d 640, 643 (Tex. App.—Tyler 1996, no pet.) ................................... 38-39
Myrex Indus., Inc. v. Ortolon, 126 S.W.3d 548, 551
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) ..............................................39
Residential Dynamics, LLC v. Loveless,
186 S.W.3d 192, 198 (Tex.App.—Fort Worth 2006, no pet.) ............... 28-29, 30, 31
Sanders v. Total Heat & Air, Inc.,
248 S.W.3d 907, 917 (Tex. App.—Dallas 2008, no pet.) .......................................39
Starlight Supply Co. v. Feris,
462 S.W.2d 608, 609 (Tex. Civ. App. -- Austin 1970, no writ) ..............................36
Tex. Dep’t of Pub. Safety v. Burrows,
976 S.W.2d 304, 307 (Tex. App.—Corpus Christi 1998, no pet.) ..........................46
Texas Man's Shop, Inc. v. Nunn-Bush Shoe Co.,
401 S.W.2d [4] 716, 718 (Tex. Civ. App. -- Corpus Christi 1966, no writ) ..........36
Triland Paving Investment Group v. Tiseo Paving Co.,
748 S.W.2d 282, 284 (Tex.App.—Dallas 1988, no writ) ........................................20
Vice v. Kasprzak, 318 S.W.3d 1
(Tex.App.—Houston[1st Dist.] 2009, pet. denied) ............................... 11, 13, 16, 22
Weynard v. Weynard, 990 S.W.2d 843, 846
(Tex.App.—Dallas 1999, pet. denied) .....................................................................33
Williamsburg Nursing Home, Inc. v. Paramedics, Inc.,
460 S.W.2d 168, 169 (Tex. Civ. App. -- Houston (1st Dist.) 1970, no writ) ...........36
vi
Constitution, Statutes and Rules
TEX. CONST. art. XVI, § 37 ................................................................................ 47-48
TEX. CIV. PRAC. & REM. CODE § 37.009..................................................................47
TEX. CIV. PRAC. & REM. CODE § 38.001..................................................................46
TEX. PROP. CODE §§ 53.001-.260....................................................................... 47-48
TEX. PROP. CODE ANN. § 53.001(7) .........................................................................42
TEX. R. APP. P., Rule 33.1(a) ...................................................................................46
TEX. R. APP. P., Rule 38.2(a)(1)(B) ...........................................................................1
TEX. R. CIV. P., Rule 166a(c) ............................................................ 6, 11, 12, 13, 27
TEX. R. CIV. P., Rule 166a(f) ............................................. 6, 11, 12, 13, 14 n. 22, 18
TEX. R. CIV. P., Rule 166a(i) ...................................................................................25
TEX. R. CIV. P., Rule 193.6 ............................................................................... 14, 15
TEX. R. CIV. P., Rule 195 .........................................................................................35
TEX. R. EVID., Rule 801(e)(2)(A) ............................................................................24
Secondary Sources
BLACK’S LAW DICTIONARY 308 (8th Ed. 2004)........................................................16
BLACK’S LAW DICTIONARY 308 (9th Ed. 2009)........................................................17
BLACK’S LAW DICTIONARY FREE ONLINE LEGAL DICTIONARY, 2d Ed. .............. 16 n. 26
vii
STATEMENT OF THE CASE
Nature of the case: This is an appeal from a cause of action for breach
of an alleged oral contract, sworn account, quantum
meruit, and foreclosure of a constitutional lien,
related to the construction of a driveway, sidewalk,
and flagstone for a residence.
Trial court: 274th Judicial District Court, Comal County, Texas;
the Hon. Dib Waldrip, presiding (though Judge
Gary Steel is the elected Judge of the 274th District
Court, Judge Waldrip considered and ruled upon the
motion for summary judgment and Appellees’
motion for reconsideration in this cause).
Trial court disposition: The trial court granted Appellees’ traditional and
no-evidence motion summary judgment on
December 12, 2014 against Appellant-Plaintiff on
his claims against Appellee-Defendant. (CR 216-
217). Appellant’s motion for rehearing, filed
December 29, 2014 (CR 218), was overruled on
January 14, 2015 (CR 237), on which date, the
Court also severed all claims against Appellees-
Defendants from those remaining in the underlying
lawsuit (CR 242-243), and entered a final judgment
in favor of Appellees-Defendants (CR 240-241).
viii
STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe oral argument would assist in the disposition of this
case. However, should the Court grant Appellant’s request for oral argument,
Appellees request equal opportunity to be heard.
ix
DESIGNATION OF RECORD REFERENCES
The record in this appeal consists of the clerk’s record filed on March 20, 2015
and the reporter’s record filed on February 27, 2015. This appellate brief uses the
same conventions adopted by Appellant in citing the record and appendix:
Clerk’s Record:
CR [page]
Reporter’s Record:
[volume] RR [page:line]
Appendix:
APP. [tab number]
x
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellees, Dave Buchholz and Mary A. Buchholz file this Brief in response
to Appellant Juan O. Lopez’s Brief on the merits.
INTRODUCTION
This is a lawsuit arising out of a written contract for the construction of a
home. Appellant, Juan Lopez, was a subcontractor on the homebuilding project. The
contractor, Scott Preiss, did not pay him. Rather than bite the hand that feeds him,
and having passed the deadline to file a statutory Mechanics and Materialman’s lien
against the property as a subcontractor, Lopez did the only thing he could – he
fabricated a non-existent “oral contract” between himself and the homeowners, Dave
and Mary Buchholz, for the work he did. His averments, however, are contrary to
all the paperwork, and the course of conduct between himself and the contractor for
the duration of the project. Nonetheless, he contends that his self-serving and
conclusory statements regarding the existence of an oral contract are enough to
survive summary judgment and subject the Buchholzes to continued litigation.
STATEMENT OF FACTS
Pursuant to Rule 38.2(a)(1)(B) of the Texas Rules of Appellant Procedure,
Appellees Dave and Mary Buchholz (the “Buchholzes”) provide the following
statement of facts. The Buchholzes’ summary judgment evidence established the
following undisputed facts.
1
Dave and Mary Buchholz entered into a contract with Scott Preiss to build a
home. 1 Pursuant to this agreement, Scott Preiss was the general contractor (defined
as “Contractor” in the document), on the home. 2 As general contractor, Preiss was
fully responsible for the construction of the home. 3 As general contractor, Preiss
expressly had sole control, responsibility and authority to execute all subcontracts,
and make payments until the construction site was released under the contract. 4
To facilitate the construction of the home, the Buchholzes took out a
Construction Loan with Lone Star Bank in the amount of $415,000.5 The
Construction Loan documents expressly identified “Scott Preiss” as the sole general
contractor on the job, and provided that as the general contractor he was responsible
for submitting draw requests on the Construction Loan, and for itemizing bills and
expenses to be disbursed from the loan draw proceeds.6
Lopez was a subcontractor to Preiss during the construction of the home. 7 As
general contractor, Preiss negotiated for and was obligated to pay for all of Lopez’s
1
CR 127-131; Exhibit A, Buchholz MSJ, construction contract.
2
Id. at CR 128.
3
Id.
4
Id. at CR 128-129.
5
CR 137-140; Exhibit C, Buchholz MSJ, disbursement disclosure statement.
6
Id. At all times material to this lawsuit, Scott Preiss Homes was a mere trade name or d/b/a
for Scott Preiss, individually.
7
CR 138, Exhibit C, Buchholz MSJ, disbursement disclosure statement reflecting that Lopez
was a subcontractor.
2
work on the Buchholz home. 8 For example, Lopez poured the slab and framed the
home, and presented invoices to Scott Preiss.9 Lopez was paid with checks issued
from a construction project account in the name of Scott Preiss. 10 He received
payment from Scott Preiss for the work, and was well aware that Scott Preiss was
the general contractor, not the owner.11
Lopez expressly acknowledged in written discovery that there is no written
contract between him and the Buchholzes for the construction of a driveway,
sidewalk, and flagstone. 12 Despite a failure to supplement the response, for the first
time in response to the motion for summary judgment, Lopez contends two invoices,
written by him, constitute more than a scintilla of evidence for the existence of a
contract. A facsimile of one of the invoices is reproduced below: 13
8
CR 160-161; Exhibit G, Buchholz MSJ, Affidavit of Dave Buchholz.
9
CR 132, 136, Exhibit B, Buchholz MSJ, invoices for slab, framing, stone and stucco.
10
CR 149-155; Exhibit F, Buchholz MSJ, cancelled checks from “Scott Preiss Homes
Buchholz Construction” account.
11
Though Lopez contends that the Buchholzes admitted that Lopez was hired by Preiss only to
construct the slab and perform framing work, the contention is incorrect. In paragraph 20 of
their Second Amended Answer and Third-Party Claim, the Buchholzes alleged that Lopez
had been a subcontractor for Preiss on many occasions, and was a subcontractor for Preiss
on the construction project. The Buchholzes alleged that Lopez was responsible for pouring
the slab, was also the framer on the project, and was thus aware of Preiss identity as the
contractor for the project.11 That is a far cry from admitting Lopez was hired by Preiss to
only construct the slab and do framing work.
12
CR 143; Exhibit D, Buchholz MSJ; Plaintiff’s responses to Defendants’ Request for
Production. Lopez has never supplemented his response of “None” to the request that he
produce “any contracts or agreement between [Lopez] and [the Buchholzes].”
13
CR 162, 191; the invoices were attached as Exhibit I to the Buchholz MSJ, and as Exhibit B
to Lopez’s response.
3
The “invoice” does not identify to whom the services were sold. Nor does the
invoice identify an address for the person or entity to whom those services were sold.
The “invoice” does not identify a customer order number. The “invoice” is entirely
undated, and describes “Flagstone in the porch and steps.”
The second invoice contains the identical deficiencies, with the exception that
it is dated “10-17-13.” October 17, 2013 is, not coincidentally, the date the general
contractor, Scott Preiss, filed an Affidavit of Completion, stating that all bills
incurred in the construction of the home had been paid, and that the owner had not
received any notices from any sub-contractors of any unpaid claims. 14
14
CR 157-157; Exhibit G, Buchholz MSJ, affidavit of completion.
4
Under “Description” the invoices do state “840 Haven Point Loop,” but this
is not unusual as the invoices submitted to Scott Preiss contained the same
reference: 15
The above-invoice, in fact, properly identifies Scott Preiss, the General Contractor,
as the person to whom the services were provided. 16 However, Lopez did not always
complete the “sold to” portion of these invoices, as shown by invoice numbers
100214 and 108222, which are for framing and stone work. Invoice 100214,
reproduced below, illustrates this point.
15
CR 132, Exhibit B, Buchholz MSJ, copies of invoices showing goods sold to “Scott Preiss
Homes/David Buchholz” or “Scott Preiss/David Buchholz.”
16
In this context, “Dave Buchholz” refers to the project for which Preiss authorized the work.
5
As can be seen, like the purported invoices to the Buchholzes, this one also lacks
any information in the “sold to” section, and lacks a date. Yet Lopez has admitted
that he was Scott Preiss’ subcontractor on the framing work.
There is nothing about the purported invoices to the Buchholzes that
distinguish them from the invoices submitted to Preiss for work done during the
building project.
Prior to October 7, 2014, the Buchholzes had not received notice of any kind
from any laborer, sub-contractor, materialman, or other person of a claim for any
amount related to the premises. It was only after the affidavit of completion and
waiver of all lien claims was signed by the Contractor Scott Preiss that Lopez
delivered the disputed “invoices.” Furthermore, it was only on January 30, 2014,
6
that the Buchholzes received a letter that Lopez expected them to pay instead of
Scott Preiss.17
SUMMARY OF ARGUMENT
The trial court properly sustained the Buchholzes’ objections to the affidavits
of Juan Lopez and Scott Preiss because the affidavits were inadmissible under Rule
166a(f) of the Texas Rules of Civil Procedure. Rule 166a(f) requires that supporting
and opposing affidavits set forth such facts as are admissible in evidence.
Conclusory and self-serving statements are not admissible in evidence. Because the
affidavits included conclusory and self-serving statements, the trial court properly
sustained the Buchholzes’ objections to the affidavits and the stated paragraphs
therein.
The court also properly granted the Buchholzes’ no-evidence and traditional
motion for summary judgment. Lopez presented no evidence supporting the
existence of an oral contract between him and the Buchholzes, or evidence that he
tendered performed under any such contract, that the Buchholzes breached any such
contract, or that he was damaged by the breach. Lopez presented no evidence of a
meeting of the minds between him the Buchholzes, no evidence of the terms of the
alleged contract between them, and no evidence regarding performance of
acceptance of the terms of any such contract. The statements in his and Scott Preiss’
17
CR 163; Demand letter, Exhibit J, Buchholz Motion for Summary Judgment.
7
affidavits were conclusory and self-serving, and the invoices in support were
inaccurate or undated, and did not reflect to whom the services were rendered. The
invoices are also no different in form than invoices he presented to the general
contractor, Scott Preiss. Finally, Lopez’s and Preiss’ affidavit testimony is contrary
to the documentary evidence that Scott Preiss was the general contractor, and that
any contract Lopez had would have been with Preiss. This documentary evidence
also negates at least one element of Lopez’s claim for breach of contract, namely,
that he had a separate oral agreement with the Buchholzes.
Lopez did not preserve his sworn account claim on appeal because he did not
brief it. Even if the claim was preserved for appeal, the trial court nonetheless
properly granted summary judgment because Lopez failed to present evidence that
raised a genuine issue of material fact as to the existence of a contract between him
and the Buchholzes, showing that a systematic record was kept, identifying with
reasonable certainty the nature of each item, and the date and charge thereof, and
that the Buchholzes were not strangers to the account. The invoices do not show to
whom the services or materials were sold; one invoice is undated and one is
inaccurate. Nor do the invoices identify with reasonable certainty the nature of each
item, and the date the service was rendered or material delivered, or the amount of
the charges. The defects in the invoices not only present no evidence of a systematic
record identifying with reasonable certainly the nature of each item, and the date of
8
the charges, but conclusively negate at least one element of Lopez’s cause of action
for a sworn account because the invoices prove no systematic account was kept.
Lopez presented no evidence raising a genuine issue of material fact regarding
his quantum meruit claim. He presented no evidence that valuable services or
materials were provided for the Buchholzes, and that those services were accepted,
used, and enjoyed by the Buchholzes under such circumstances that they were
reasonably notified that Lopez expected payment from them before the services were
rendered. The evidence shows any notification occurred well after work was
completed. When a subcontractor contracts with a general contractor for work, a
claim for quantum meruit does not arise simply because the owner is receiving a
benefit. All the evidence in the case shows that Lopez worked as a subcontractor for
Preiss. Their conclusory and self-serving affidavit statements are not admissible and
do not rebut that evidence. Furthermore, the evidence conclusively negates at least
one element of Lopez’s cause of action for quantum meruit. A party cannot claim
quantum meruit where there is a valid contract covering the services or materials
furnished. The only evidence of a contract was the one between the Buchholzes and
the general contractor, Scott Preiss.
Finally, Lopez failed to preserve for review his argument that the Buchholzes
request for declaratory relief is a “mirror image” of his claim for foreclosure on his
purported constitutional lien. He did not raise that argument at the trial level, nor did
9
he brief it at the trial level. Instead, he argued that attorney’s fees were not proven
under Chapter 38 of the Texas Civil Practices and Remedies Code. The Buchholzes,
however, did not seek recovery of attorney’s fees under Chapter 38; they sought
recovery under Chapter 37, the Texas Declaratory Judgments Act.
Even if this issue were properly before this Honorable Court, the Buchholzes
sought a declaration that the purported lien was invalid,clearing title, which the Trial
Court granted. This was a request for affirmative relief and not a mere denial of
Lopez’s claim for foreclosure. Therefore, the Buchholzes request was a proper
subject for a declaratory judgment.
ARGUMENT
FIRST ISSUE (RESTATED)
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN SUSTAINING THE
BUCHHOLZES' OBJECTIONS TO LOPEZ'S SUMMARY JUDGMENT EVIDENCE.
A. Standard of review for the exclusion of evidence.
A trial court’s decision to admit or deny evidence is reviewed under an abuse
of discretion standard. See City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex.
1995). A trial court abuses its discretion when it reaches a decision in an arbitrary or
unreasonable manner or without reference to any guiding rules or principles. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). This
Honorable Court may not reverse the trial court’s decision to admit or exclude
evidence simply because it disagrees with the decision. Id. at 242.
10
B. Trial Court properly excluded affidavits from summary judgment
evidence
The Buchholzes raised two separate objections under Rule 166a(f) and (c) to
the affidavits of Juan Lopez and Scott Price. The trial court properly excluded these
affidavits for being conclusory and self-serving under 166a(f). Lopez relies on
authority under 166a(c), however, to challenge a proper decision made under
166a(f). This Court should uphold the trial court’s exclusion of the Lopez and Price
affidavits.
1. Plaintiff’s affidavits were conclusory and self-serving.
Rule 166a(f) requires that “supporting and opposing affidavits shall be made
on personal knowledge, [and] shall set forth such facts as would be admissible in
evidence, ...” TEX. R. CIV. P., Rule 166a(f); see also Vice v. Kasprzak, 318 S.W.3d
1 (Tex.App.—Houston[1st Dist.] 2009, pet. denied). Affidavits containing
conclusory statements and self-serving statements are not competent summary
judgment evidence. See Kasprzak, 318 S.W.3d at 11 n. 5 (stating “…conclusory and
self-serving affidavits submitted as summary judgment evidence by either the
movant or the non-movant are not counted as summary judgment evidence.”).
In the case at bar, the Buchholzes specifically objected to the affidavits of
Juan Lopez and Scott Preiss as being “[c]onclusory, self-serving, not readily
controvertible, not best evidence, and containing unsubstantiated legal and factual
11
conclusions.” The Buchholzes specifically cited Rule 166a(f) as the basis for the
objection. 18
2. Subsections 166a(c) is a different standard.
Separately, Rule 166a(c) requires that affidavits of interested witnesses be
uncontroverted, clear, positive and direct, otherwise credible and free from
contradictions and inconsistencies, and could have been readily controverted. TEX.
R. CIV. P., Rule 166a(c). The Buchholzes separately objected on such grounds,
demonstrating that the witnesses were interested, unclear, not credible, not direct,
and controverted, and arguing that unless the affidavits met the elevated
requirements of Rule 166a(c), the affidavits could not support a summary
judgment. 19 The argument made by the Buchholzes under 166a(c) is not the same
argument made under 166a(f).
3. Plaintiff cites to inapposite authority
Lopez’s argument on appeal conflates the Buchholzes’ objections under
subsection (f) and subsection (c) of Rule 166a, as well as the distinct line of cases
for each subsection. The Buchholzes do not take issue with the proposition that the
affidavits of interested witnesses may be used to raise a fact issue. 20 However, such
18
CR 198, Defendants’ Objections and Reply to Plaintiff’s [Response to Defendants’] Motion
for Summary Judgment, p. 3, paragraph 4.
19
CR 198, Defendants’ Objections and Reply to Plaintiff’s [Response to Defendants’] Motion
for Summary Judgment, p. 3, paragraph 7.
20
Appellant’s Brief, p. 15-16.
12
affidavits must still meet the separate requirements of Rule 166a(f) to be admissible
in evidence. See Kasprzak, 318 S.W.3d at 11, n.5.
Lopez bases his argument that the trial court wrongfully excluded the
affidavits on two cases; De La Morena v. Ignenieria E Maquinaria De Guadalupe,
S.A., 56 S.W.3d 652 (Tex.App.—Waco 2001, no pet.) and Fieldtech Avionics &
Instruments, Inc. v. ComponentControl.com, Inc., 262 S.W.3d 813 (Tex.App.—Fort
Worth 2008, no pet.). These cases are primarily concerned with the application of
Rule 166a(c), not 166a(f); they address circumstances in which uncontroverted
affidavit testimony of an interested witness can support summary judgment.
Subsection (f), though discussed, is not the basis for the holdings in either case. De
La Morena in particular recognizes that the two subsections of the Rule are
procedurally distinct. See De La Morena, 56 S.W.3d at 658. Lopez further ignores
that proper objections under Rule 166a(c) related to unclear, controverted and other
deficient issue were raised, further defeating their cited cases.
Lopez’s argument ignores 166a(f) entirely. Even an uncontroverted interested
statement it is not admissible as summary judgment evidence if it is conclusory and
self-serving. See TEX. R. CIV. P. 166a(f); Kasprzak, 318 S.W.3d at 11, n.5. Lopez
13
does not address Buchholzes objections to the affidavitsor the trial court’s holding
related to the self-serving and conclusory nature of the affidavits. 21
C. The court correctly held that Lopez’s statement that Dave Buchholz
made a $5,000 out of his personal checking account was not admissible as
evidence.
The court also correctly concluded that two paragraphs in Lopez’s affidavit
should be excluded under Rule 193.6(a) of the Texas Rules of Civil Procedure.
Paragraphs 5 and 6 of the Lopez affidavit stated that Dave Buchholz made a $5,000
payment towards the construction work, and Lopez relied upon that conduct to
support his argument for the existence of an oral contract.22 Paragraph 6 further
stated that the payment was made from Dave Buchholz’s personal bank account.23
The Buchholzes objected to the statements on the ground that the $5,000 check
purportedly used to make that payment had not been produced in response to a
request for production, and evidence regarding the payment should have been
excluded. 24 The court sustained the objection.
21
Defendant’s Objections and Reply to Plaintiff’s Response to Defendants’ Motion for
Summary Judgment, pg. 3, stating, “Conclusory and self-serving affidavits submitted as
summary judgment evidence by either the movant or non-movant are not competent as
summary judgment evidence. Citing TEX. R. CIV. P., Rule 166a(f).
22
CR 189-190, Exhibit A, Plaintiff’s Response to Defendants’ Traditional and No-Evidence
Motion for Summary Judgment, paragraphs 5 and 6.
23
CR 190, Exhibit A, paragraph 6.
24
CR 198, Defendants’ Objections and Reply to Plaintiff’s [Response to Defendants’] Motion
for Summary Judgment, p. 3, paragraphs 2 and3 3.
14
Rule 193.6 provides that a party who fails to make, amend, or supplement a
discovery response in a timely manner may not introduce in evidence the material
or information that was not disclosed. TEX. R. CIV. P., Rule 193.6(a). Lopez did not
timely produce, in response to a timely request for production, the check reflecting
the $5,000 payment.
On appeal, Lopez attempts to avoid the Rule’s sanction by arguing that he was
not seeking to introduce evidence of the check itself, but merely evidence that a
payment had been made. He argues further that the Buchholzes were not prejudiced
by any delay in producing the check, as the fact of the payment having been made
was already reflected in separate, admissible documents, and, therefore, the check,
even if not timely disclosed, created no surprise or ambush. This argument appears
to be fashioned to get around Rule 193.6 and has nothing to do with the issue at
hand, namely, that Lopez seeks to use undisclosed evidence to support the
proposition that he was in privity with the Buchholzes.
Lopez’s argument effectively circumvents the policy behind Rule 193.6. The
argument is flawed because the amount of the check and the fact a payment had been
made is unimportant to the Buchholzes complaint. Because Lopez did not produce
the check in response to a document production request, he cannot now introduce
evidence of the source of the payment from a collateral source – his own testimony
– to get around Rule 193.6.
15
D. Specific objections to Lopez’s affidavit.
1. Specific statements in the affidavit are conclusory.
Contrary to Lopez’s argument, the challenged statements in Lopez’s affidavit
are conclusory. The statements challenged by objection were:
Paragraph 4, “The work for which J.L. Construction seeks
payment was performed in a good and workmanlike manner at
the direct request of Dave Buchholz.”
Paragraph 5, “Dave H. Buchholz approved the work and paid
only a partial payment of $5,000.00 leaving a balance due of
$27,584.80.
Paragraph 7, “The work was performed in accordance with the
instruction given by Dave H. Buchholz to me on behalf of J. L.
Construction Co.”
Paragraph 8, “The prices charged were the reasonable and
necessary value of the work performed.”
A conclusory statement is one that does not provide the underlying facts to
support the conclusion. Kasprzak, 318 S.W.3d at 11 n. 5.25 Stated differently, a
conclusory statement is one “expressing a factual inference without stating the
underlying facts on which the inference is based.” Arkoma Basin Exploration Co. v.
FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex. 2008)(citing Black’s
Law Dictionary 308 (8th Ed. 2004)). A witness’s affidavit is conclusory if it fails to
explain the basis of the witness’ statements and link his conclusions to the facts.
25
Self-serving statements are likewise not admissible evidence. A self-serving statement is one
made to serve one’s own purpose. BLACK’S LAW DICTIONARY FREE ONLINE LEGAL
DICTIONARY, 2d Ed. A self-serving statement has no evidentiary value, and serves no useful
purpose other than furthering or reinforcing a party’s position.
16
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). An affidavit is conclusory if it
states “a conclusion without any explanation” or asks the factfinder to “take
[Plaintiff’s] word for it.” BLACK’S LAW DICTIONARY 308 (9th Ed. 2009).
In paragraph 4 of his affidavit, Lopez avers that he seeks payment for work
performed in a good and workmanlike manner at the direct request of Dave
Buchholz. However, he does not provide the court with any facts against which to
gauge that statement. He fails to explain the basis of his statement and link his
statement to the facts. What was the character of the work? What right did Dave
Buchholz have to direct the work? How did he request the work? What work did he
request? When did he request it?
Lopez’s reliance on Behr Southerland Construction, Inc. v. H.W. Wahlers,
Inc., No. 04-00-0069-CV, 2001 WL 729292, at *2 (Tex.App.—San Antonio June
29, 2001) is misplaced. Behr Southland Construction is a default judgment case,
which has a different standard of proof than a motion for summary judgment. In
order to set aside a default judgment, a defendant must allege facts that in law would
be a defense to the cause of action asserted by the plaintiff, and must support the
facts with affidavits or other proof. Id. (citing Ivy v. Carrell, 407 S.W.2d 212, 214
(Tex. 1966)). The defendant in that case alleged that the plaintiff “did not complete
the contract in a timely fashion, nor in a good and workmanlike manner.” Those are
17
facts that, if proven by competent evidence, would constitute a defense at law to the
plaintiff’s breach of contract claim.
However, those allegations don’t prove the contract was not completed in a
timely fashion, or that the work was done in a good and workmanlike manner. Nor
do they raise a fact issue. To raise a fact issue for summary judgment purposes, the
evidence, and hence the statements, must be admissible in evidence, and therefore
must tend to prove or disprove a fact at issue in the case. See TEX. R. CIV. P., Rule
166a(f). Thus, the type of proof required to set aside a default judgment is very
different from the type of proof needed to raise a fact issue to avoid summary
judgment.
In paragraph 5 Lopez states that Dave Buchholz “approved the work” with no
facts to support the assertion. Likewise in paragraph 7 he states that the “work was
performed in accordance with the instruction given by Dave H. Buchholz …” and in
paragraph 8, he makes a blanket statement that the prices charged were the
reasonable and necessary value of the worked performed. Lopez does not provide
the court with information to help determine the underlying facts in the case.
Here again Lopez’s reliance on a case, Johnston v. Kruse, 261 S.W.3d 895,
902 (Tex.App.—Dallas 2008, no pet.), is misplaced. Johnston was a case discussing
whether lay testimony can establish the reasonable value of services. In the affidavit
at issue in that case, the affiant stated that he “put in 10 to 15 hours per week during
18
2003 and 8 to 10 hours per week for the first quarter of 2004” and “at a rate of $
50/hr, which is a reasonable pay rate for my work, the value of my time spent
working from Kruse Holdings, L.P. is between $30,800 and $45,000.” Id. at 901.
The affiant also stated that “Mr. Kruse knew that I was working for Kruse Holdings,
L.P. and consented to my work on its behalf. He never told me to stop efforts to raise
money, meet with bankers or CPAs. He knew that I was looking to the Defendants
for payment of my services. I was never paid anything in return for my services.” Id.
Unlike the affiant in the Johnston case, Lopez did not provide the trial court
with any information against which to measure the value his services. He simply
states he did work at Dave Buchholz’s instruction, and that the reasonable and
necessary value of the work was $27,585.80. Furthermore, what information he does
provide, namely the invoices, is inaccurate. Invoice number 209227 shows items
charged in the amounts of $622 and $1,656, yet those items purportedly “total” out
to $11,388. That represents a discrepancy of $9,110, for which Lopez provides no
explanation, and calls into question the accuracy and verity of the amount claimed
as damages.
Lopez argues instead that based upon his personal knowledge, he testified that
the work for which he sought payment from the Buchholzes was performed at the
direct request of Dave Buchholz, in accordance with the instructions given by Dave
Buchholz, and approved by Dave Buchholz, and that these statements were neither
19
conclusions nor subjective opinions. He analogizes his statements to those of a
contractor in Triland Paving Investment Group v. Tiseo Paving Co., 748 S.W.2d
282, 284 (Tex.App.—Dallas 1988, no writ). In that case however, the affiant, Glenn
Midkiff, provided details, stating that Triland had entered into a contract with Tiseo,
further stating that the work had been completed, that $297,711.60 became due but
was unpaid, and that Tiseo sent a demand notice and Triland refused to make
payment. Id.
The most significant difference between the Midkiff affidavit and the one in
this case is that Midkiff stated there was a contract between Tiseo and Triland. Lopez
never states there is a contract or agreement, oral or written, between him and the
Buchholzes. Additionally, in the Triland case, a copy of the written contract was part
of the summary judgment evidence. The only written contract before the trial court
in this case was the one between the Buchholzes and the general contractor, Scott
Preiss.
Finally, Lopez argues that all of the statements in his affidavit could have been
readily controverted, but that the Buchholzes chose not to. That is incorrect. Lopez’s
affidavit is controverted – by the documentary evidence submitted by the
Buchholzes, and by Dave Buchholz’s affidavit, wherein Buchholz states,
“Defendants deny the account on which Plaintiff files suit because the Plaintiff was
a subcontractor for Scott Preiss Construction, and his alleged contract, oral or
20
otherwise, was with Scott Preiss Construction.” Buchholz also stated that “The
alleged work was done during the construction of a home for Defendants. The
General Contractor for the construction, Scott Preiss Construction, executed a
Contractor’s Lien Waiver Affidavit in which he averred that he had paid or caused
to be paid all bills, charges, invoices or other amounts due and payable to others for
labor, services, and/or materials for the construction, which indicates Plaintiff was
paid.”26
In a nutshell, Lopez’s affidavit does not state he had an oral agreement with
the Buchholzes, yet he wants the court to infer the possibility of the existence of an
oral contract from statements made in his affidavit. However, those statements are
conclusory and self-serving because the affidavit is devoid of the simple statement
that Lopez and the Buchholzes had an agreement for Lopez to do the work, or any
facts about the work.
E. Specific Objections to the Preiss Affidavit.
1. Specific statements in the affidavit are self-serving and conclusory
Contrary to Lopez’s argument, the challenged statements in Preiss’ affidavit
are conclusory and self-serving. The statements challenged by objection were:
26
CR 160-161, Exhibit H to Defendants’ Motion for Summary Judgment.
21
Paragraph 4: “The written agreement I had with Dave H. Buchholz and
Mary A. Buchholz did not include the installation of a new driveway,
sidewalk and flagstone.”
Paragraph 5: “The installation of a new driveway, sidewalk and
flagstone at the Buchholzes residence was extra work performed by
Juan O. Lopez (the “Extra Work”).”
Paragraph 6: “The Extra Work performed by Juan O. Lopez was not
performed subject to the written agreement between me and the
Buchholzes.”
Paragraph 7: “The Extra Work performed by Juan O. Lopez was not
performed under any agreement between me and Juan O. Lopez.”
Paragraph 8: “I had no involvement in directing or agreeing to pay for
the Extra Work performed by Juan O. Lopez.”
Paragraph 9: “The Buchholzes directed Juan O. Lopez to perform the
Extra Work.”
Each of the paragraphs contained self-serving statements. Self-serving
statements are not competent summary judgment evidence. Kasprzak, 318 S.W.3d
at 11 n. 5. Each paragraph also contained factual and legal conclusions. Affidavits
that contain conclusory statements are likewise not competent summary judgment
evidence. Id. Statements that (1) his contract with the Buchholzes did not include
construction of a driveway, sidewalk, and flagstone, (2) construction of those things
was extra work performed by Lopez, and that said extra work was for the
Buchholzes, (3) said extra work was not part of the written contract between him
(Preiss) and the Buchholzes, and (4) the extra work was not part of a contract
between him and Lopez, are all self-serving statements designed to direct liability
22
away from him and onto the Buchholzes. That he had no involvement in directing
or agreeing to pay for the extra work, and that the Buchholzes directed the extra
work, are likewise self-serving statements designed to support the effort to redirect
liability.
The written contract provided for the construction of a “residential structure,”
e.g. a home. Homes include driveways and sidewalks. That a subcontractor
constructed those things as part of the written contract is self-evident. That Lopez
was that subcontractor is equally self-evident, and admitted by him. Lopez says he
was not paid. Thus, that Scott Preiss did not pay him is also self-evident. Scott Preiss’
statements are therefore nothing more than a thinly veiled attempt to redirect liability
away from him. The statements are self-serving and not competent summary
judgment evidence.
The statements are all also bare-bones factual and legal conclusions. For
example, Scott Preiss’ statements that construction of the driveway, sidewalk, and
flagstone, were not included in the written contract between him and the Buchholzes,
provides no factual basis. Preiss does not describe the contract between him and the
Buchholzes, or explain why the driveway, sidewalk, and flagstone were not
included. Nor does he explain how he has personal knowledge that Lopez performed
the work at the direction of the Buchholzes.
23
Finally, the statement in paragraph 9, that the Buchholzes directed Lopez to
perform the extra work is either conclusory or hearsay for which no exception
applies. If Preiss heard that the Buchholzes directed the work, he does not explain
how or where he heard it, or if told to him, who told him. Lopez contends such a
statement would be admissible as a hearsay exception under TEX. R. EVID., Rule
801(e)(2)(A) as a statement of a party. But how is the trial court supposed to know
whether the statement was made by the Buchholzes? There is a big difference in
saying “I over-heard Dave Buccholz agree with Lopez to construct the driveway,”
and saying instead “Lopez told me that Buchholz told him to construct the
driveway.” The first two may fall within the exception provided by 801(e)(2)(A);
the latter certainly does not.
Furthermore, the fact that Preiss had personal knowledge of the work covered
by the agreement, or had personal knowledge of the slab, framing, stone, and stucco
work that he hired and paid Lopez to perform on the Buchholzes’ home, does not
cure the fact the statements are nonetheless self-serving in this context. Nor do they
provide the basic underlying facts to support his conclusion that the installation of
the driveway, sidewalk, and flagstone were not included in the written agreement
with the Buchholzes, or any agreement he had with Lopez. The Buchholzes’ suit
against Preiss stating he is responsible controverts the statement and requires
sufficient underlying facts to support his self-serving and conclusory statement.
24
Because the statements in paragraphs 4 through 9 were self-serving and
conclusory, they were not proper summary judgment evidence. The trial court
properly sustained the Buchholzes objections to the affidavits.
SECOND ISSUE (RESTATED)
THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON LOPEZ'S
SUIT ON BREACH OF CONTRACT, SWORN ACCOUNT, QUANTUM MERUIT, AND
CONSTITUTIONAL LIEN CLAIMS.
A. Standard of Review
1. De Novo Review; No-Evidence Motion Must Be Considered First.
This Honorable Court reviews a trial court’s decision to grant a motion for
summary judgment de novo. Travelers Ins. Co. v, Joachim, 315 S.W.3d 860,862
(Tex.2010). Furthermore, when a party moves for summary judgment on both
traditional and no-evidence grounds, the court must consider the no-evidence ground
first, because if the non-movant fails to produce legally sufficient evidence to meet
his burden as to the no-evidence motion, then there is no need to analyze whether
the movant satisfied its burden under the traditional motion. Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
2. No-Evidence MSJ Standard.
“After adequate time for discovery, a party without presenting summary
judgment evidence may move for summary judgment on the ground that there is no
evidence of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). A no-evidence
25
motion for summary judgment must be specific in challenging the evidentiary
support for an element of a claim or defense. TEX. R. CIV. P., Rule 166a(i). The rule
does not authorize conclusory motions or general no-evidence challenges to an
opponent’s case. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see
TEX. R. CIV. P., Rule 166a(i). A no-evidence motion for summary judgment is
properly granted if the non-movant fails to produce more than a scintilla of evidence
to raise a genuine issue of material fact as to an essential element of the non-
movant’s claim on which the non-movant would have the burden of proof at trial.
See TEX. R. CIV. P., Rule 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 599
(Tex. 2004); Forbes, Inc. v. Granada Biosciences, 124 S.W.3d 167, 172 (Tex. 2003).
The respondent to a no-evidence motion for summary judgment must bring “forth
more than a scintilla of probative evidence to raise a genuine issue of material fact.”
3. Traditional MSJ Standard.
To succeed on a traditional motion for summary judgment movant must show
that there is no genuine issue of material fact and that he is entitled to summary
judgment as a matter of law. TEX. R. CIV. P., Rule 166a(c); In re Delta Lloyds Ins.
Co. of Houston, 339 S.W.3d 384, 392 n. 7 (Tex. 2008); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively
negates at least one element of the plaintiff’s cause of action or conclusively
26
establishes an affirmative defense is entitled to summary judgment. Frost Nat. Bank
v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
B. Appellant Failed to Meet His Burden of Proof Under Both Standards.
1. Breach of Contract
Lopez did not meet his no evidence burden of proof. Lopez presented no
evidence that raised a genuine issue of material fact that (1) he had a valid contract
with the Buchholzes, (2) he tendered performance under the contract, (3) the
Buchholzes breached the contract, and (4) he was damaged by the breach. Lopez
presented no evidence that raised a genuine issue of material fact that there was a
meeting of the minds, or regarding the terms of performance or acceptance of the
terms. Lopez also presented no evidence that raised a genuine issue of material fact
on damages because Scott Preiss, the contractor, had executed a Contractor’s Lien
Waiver Affidavit stating that all amounts due and payable to others for labor,
services, and/or materials for the construction were paid.
Furthermore, the Buchholzes summary judgment evidence negated at least
one element of Lopez’s claim because it disproved the existence of a valid contract
between them and Lopez, or that they were responsible for any breach of a contract.
2. The affidavit fails to prove the existence of an oral contract.
Juan Lopez’s affidavit does not supply a crucial nexus necessary to raise a
genuine issue of material fact, namely, that he had an oral agreement with the
Buchholzes to build a driveway, sidewalk, and flagstone. The word “agreement’
27
appears nowhere in the affidavit.27 Instead, Lopez danced around a direct and simple
statement that Dave Buchholz agreed to pay him for specified work, using phrases
such as, “the work was performed … at the direct request of Dave Buchholz” or
“Dave Buchholz approved the work.” His affidavit was carefully crafted to create
the illusion of a fact issue where none existed. Because his affidavit does not provide
that crucial nexus, it presents no evidence raising a genuine issue of material fact
that there was a meeting of the minds between himself and the Buchholzes, and no
evidence raising a genuine issue of material fact showing the existence of an oral
contract. His affidavit only raises large red flags as to his claim, especially in light
of the fact that he admits that to being the subcontractor for Scott Preiss, the general
contractor, except when money was not paid.
3. The affidavits fail to prove up the terms of the purported oral contract,
acceptance of those terms, tender of performance, breach, or damages.
Lopez states he performed work at the direct request of Dave Buchholz, in
accordance with Dave Buchholz’s instruction, and which was approved by Dave
Buchholz. However, he never states the terms of the agreement, leaving the court
instead to infer those terms from the invoices, one of which is undated and both of
which do not identify the party to whom the services or materials were sold. Lopez
cites Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex.App.—Fort
27
Nor does the word “contract” appear in the affidavit. Why was it so difficult for Lopez to
swear to words to the effect of, “Dave Buchholz agreed to pay me for the installation of a
driveway, sidewalk, and flagstone?”
28
Worth 2006, no pet.), for the proposition that an affidavit listing the basic facts to
support conclusions concerning the existence of an agreement was sufficient to raise
a genuine issue of material fact. A comparison of the affidavit in that case and
Lopez’s affidavit only strengthens the Buchholzes’ argument. For example, the
Residential Dynamics case affidavit stated:
In July, 2003, Residential Dynamics, LLC and
Defendants discussed marketing various lots located in
a larger tract of property owned by Defendants.
Residential Dynamics, LLC and Defendants reached
an agreement concerning adding improvements to Lot
27, Lake Country Estates, a/k/a/ 152 Price Circle,
Hackberry, Texas 75034.
The agreement provided that Residential Dynamics,
LLC would put a manufactured home on the property
and would also perform various improvements to the
property, including adding a septic system, driveway
and other concrete work, and other improvements.
By comparison, the Lopez affidavit provides the Court with only roundabout
statements such as “the work for which J. L. Construction seeks payment was
performed … at the direct request of Dave H. Buchholz” and “Dave H. Buchholz
approved the work …” and “The work was performed in accordance with the
instruction given by Dave H. Buchholz.” The affidavit doesn’t even describe “the
work,” but rather leaves the Court to infer the nature of “the work” from incomplete
and nearly illegible invoices that do not identify the party to whom the services or
materials were sold.
29
Unlike the Lopez affidavit, the affidavit in Residential Dynamics stated the
parties had reached an agreement. The affidavit also stated that before reaching an
agreement, the parties had discussed marketing various lots on property owned by
the defendants. But more importantly, the court noted, “the affidavit lists the basic
terms of the agreement, states that Appellant performed its obligations, and states
the amount of expenses that Appellant incurred in performing, specifying what some
of the expenses were.” Id. at 198. The basic terms of the agreement included putting
a manufactured home on the property, installation of a septic system, driveway, and
other concrete work. Id. Thus, the court held that “[t]he statements provide the basic
underlying facts to support the conclusion that an agreement was made.” Id. at 198.
Whereas the Residential Construction case affidavit provided concrete details,
background facts against which to measure those details, and stated the parties came
to an agreement, the Lopez affidavit provides no statement that the parties had an
agreement, oblique statements about Dave Buchholz directing, approving, or
instructing work, no description of “the work,” and a void of background facts
against which to measure even those paltry points.
The Buchholzes cannot stress enough the importance of the fact that Lopez’s
affidavit does not discuss the terms of any agreement. He instead states that “the
work” was performed in accordance with “instructions” given by Dave Buchholz,
done in a good and workmanlike manner “at Dave Buchholz’s direct request,” and
30
that Dave Buchholz “approved” the work. But what were the terms? What
instructions were given? What was “the work”? When were the “directions,”
“approval” or “work” done? The Lopez affidavit fails to raise more than a scintilla
of evidence from which the Court can conclude or infer the terms of an oral contract
between Lopez and the Buchholzes. As such, it presents no evidence that raises a
genuine issue of material fact regarding those terms.
The Lopez affidavit is equally deficient when it discusses damages. The
affidavit in the Residential Dynamics case stated:
Upon completion of the improvements, the property
was to be sold, and Defendants were to receive the first
$ 35,000 from such sale, said amount to pay
Defendants for the cost of the lot.
Upon the sale, any proceeds in excess of $ 35,000, were
to be retained by Residential Dynamics, LLC.
Residential Dynamics, LLC incurred expenses in
performing under the terms of the agreement.
Specifically, Residential Dynamics, LLC has incurred
damages in the amount of $ 75,532.53. This includes
the cost for the manufactured home as well as the cost
for the other materials and labor in developing the lot.
Id.
The Lopez affidavit, in comparison, states only that the work was done in a
good and workmanlike manner, Buchholz made only a partial payment of $5,000
leaving a balance of $27,548.80, and the prices charged were the reasonable and
31
necessary value of the work performed. Here again, the statements provide no
background information against which to measure these ‘facts.’
Worse, Lopez’s other exhibits refute Lopez’s statement that the prices were
reasonable and necessary. Invoice number 209227 shows items charged in the
amounts of $622 and $1,656, yet those items purportedly “total” out to $11,388. That
represents a discrepancy of $9,110 and as stated previously calls into question the
accuracy and verity of the amount claimed as damages.
The Lopez affidavit fails to raise more than a scintilla of evidence from which
the Court can conclude or infer that the prices charged were reasonable and
necessary. Furthermore, the $9,110 discrepancy in invoice number 209227 refutes
any inference the prices charges were reasonable and necessary because the
discrepancy shows the invoice is inaccurate.
As such, the affidavits and invoices presented no evidence that raised a
genuine issue of material fact regarding the reasonableness and necessity of the
amounts charged.
4. The documentary evidence conclusively negates at least one element
of Lopez’s claim for breach of contract.
The summary judgment evidence conclusively shows that the only contract
was between the Buchholzes and Scott Preiss. Lopez admits he has no separate,
written contract with the Buchholzes. Lopez attempts to get around that fact by
32
alleging the existence of an oral contract, but other than his and Preiss’ self-serving
and conclusory statements, all the evidence is to the contrary.
Mutual assent, concerning material, essential terms, is a prerequisite to
formation of a binding, enforceable contract. T.O. Stanley Boot Co., Inc. v. Bank of
El Paso, 847 S.W.2d 218, 221 (Tex. 1992). “Meeting of the minds” describes the
mutual understanding and assent to the agreement regarding the subject matter and
the essential terms of the contract. Weynard v. Weynard, 990 S.W.2d 843, 846
(Tex.App.—Dallas 1999, pet. denied).
The only evidence of a contract is of one between the Buchholzes and Scott
Preiss as the general contractor. Pursuant to that contract, the Buchholzes agreed that
Preiss would maintain control of the structures and premises of the construction until
full and final payment. The Buchholzes retained no rights to possession of the
property or the ability to direct subcontractors “in any manner.”
The contract between Preiss and the Buchholzes also provided that the general
contractor was responsible for the hiring, direction, and payment for all work to build
the Buchholz’s home. Lopez was a subcontractor for Preiss. Any agreement Lopez
had to do work on the property was with Preiss. Prior invoices for work done by
Lopez were made out to Preiss. Requests for draws from the construction loan to
Lopez were signed by Preiss. Payment for work was received on checks from Scott
Preiss Homes. No notice prior to the work’s completion and invoice date of October
33
7, 2013, was received by the Buchholzes. The fact Lopez could not name the
Buchholzes as “sold to” parties on the invoices shows there was no meeting of the
minds.
All the documentary evidence shows that Preiss was the contractor, and Lopez
a subcontractor. Lopez submitted all his invoices to Preiss, and was paid by Preiss
out of the construction loan account.28 Some of those invoices show Scott Preiss’
name, others show no name, in the upper left quadrant of the invoice. All contain the
“840 Haven Point” address in the description block, and it was apparently Lopez’s
practice to place the address in the description line to identify the location where the
services were rendered.
The Buchholzes summary judgment evidence conclusively establishes that
the only contract was between the Buchholzes and Scott Preiss, the contractor, and
conclusively negates at least one element of Lopez’s claim, namely, the existence of
a contract between himself and the Buchholzes.
2. Sworn Account
Lopez does not appear to have briefed his sworn account claim on appeal;
therefore any complaint in this regard is waived. See General Servs. Comm’n v.
Little-Tex. Insulation Co., 39 S.W.3d 591, 598 n. 1 (Tex. 2001)(appellant’s failure
to brief, or to adequately brief, an issue on appeal waives that issue).
28
CR 132, 136 Buchholz MSJ, Exhibit B; CR 138, Exhibit C, CR 149-156, Exhibit F.
34
Even if he did not waive this argument, the Buchholzes summary judgment
evidence negated at least one element of Lopez’s claim on a sworn account, to wit,
that a systematic record of the account has been kept, identifying with reasonable
certainty the nature of each item, the date and the charge thereof.
A suit on a sworn account is not an independent cause of action, but a
procedural rule for proof of certain types of contractual claims. See TEX. R. CIV. P.,
Rule 195; Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860 (Tex. 1979).
Where a sworn account is properly pled, the failure to file a sworn denial permits the
plaintiff to avoid the necessity of proving the correctness of the account.
Hollingsworth v. Nw. Nat’l Ins. Co., 522 S.W.2d 242, 245 (Tex.App.—Texarkana
1975, no writ).
Lopez presented no summary judgment evidence that raised a genuine issue
of material fact to show a meeting of the minds, or the terms of any oral contract, or
that his contract was with anyone other than Scott Preiss, the contractor. The invoices
attached to Lopez’s complaint fail to provide even prima facie evidence that a
systematic record has been kept. First, the “sold to” line on both invoices is blank
and unfilled. Second, the “ship to” box is filled out, with the name of Lopez. Third,
only one of the invoices is dated. Fourth, the undated invoice shows a $9,110
discrepancy. None of the foregoing shows a systematic record of an account; instead,
it shows sloppy record keeping.
35
Further, when the pleadings do not conform to the writing evidencing the
account, the document rather than the pleading controls. Hassler v. Texas Gypsum
Co., 525 S.W.2d 53, 54 (Tex.Civ.App.--Dallas 1975, no writ)(citing Starlight Supply
Co. v. Feris, 462 S.W.2d 608, 609 (Tex. Civ. App. -- Austin 1970, no writ) and
Copeland v. Hunt, 434 S.W.2d 156, 158 (Tex. Civ. App. -- Corpus Christi 1968, writ
ref'd n.r.e.)). Because the invoices do not identify the Buchholzes as the persons to
whom the services or materials were sold, they are inconsistent with the pleadings.
Because the invoices control over the pleading, and do not identify the party to whom
the services or materials were sold, they present no evidence raising a genuine issue
of material fact.
A sworn account must show with reasonable certainty the nature of each item,
the date and the charge thereof. Williamsburg Nursing Home, Inc. v. Paramedics,
Inc., 460 S.W.2d 168, 169 (Tex. Civ. App. -- Houston (1st Dist.) 1970, no writ);
Bookstall, Inc. v. John Roberts, Inc., 517 S.W.2d 451, 452 (Tex. Civ. App. -- Austin
1974, no writ); Texas Man's Shop, Inc. v. Nunn-Bush Shoe Co., 401 S.W.2d [4] 716,
718 (Tex. Civ. App. -- Corpus Christi 1966, no writ); Becker, Smith & Page, Inc. v.
Wm. Cameron & Co., 22 S.W.2d 951, 952 (Tex. Civ. App. -- Waco 1929, writ
dism'd). Plaintiff pleads that the work was performed in the months of September
and October 2013, but as stated above, the documents control. Invoice no. 209227
has no date, and totals $11,388 with a failure to show how or why such amounts are
36
charged. It also shows a $9,110 discrepancy. Invoice 209229 is also illegible and
fails to show with reasonable clarity the type of goods sold or services rendered.
Hassler, 525 S.W.2d at 54.
Because the Buchholzes were strangers to and not parties to the contract for
sale of Lopez’s services, the claim cannot be upheld against them. Gibson v. Bostick
Roofing & Sheet Metal Co., 148 S.W.3d 482, 490 (Tex. App.—El Paso 2004, no
pet.)(rule does not apply to transactions between third parties or parties who were
strangers to the transaction); see also McCamant v. Batsell, 59 Tex. 363 (1883);
Hassler, 525 S.W.2d at 54. This exception has been applied where the plaintiff's own
pleadings—or the invoices or other evidence exhibited as the basis of the
obligation—reflect that the defendant was not a party to the original transaction. See
id. Because the evidence conclusively establishes that Lopez’s contract, if any, was
with Scott Preiss, the evidence also conclusively establishes that the Buchholzes
were strangers to the contract; therefore, they cannot be held liable on a sworn
account theory.
Lopez presented no summary judgment evidence sufficient to raise a genuine
issue of material fact. Furthermore, Lopez’s own evidence conclusively negates at
least one element of a claim for sworn account, namely, that a systematic record of
the account was kept, identifying with reasonable certainty the nature of each item,
37
the date and the charge thereof, and that the Buchholzes were strangers to any alleged
contract.
3. Quantum Meruit
The elements of a cause of action for quantum meruit are: (1) valuable
services or materials were furnished; (2) for the person sought to be charged; (3)
these services and materials were accepted, used and enjoyed by the person sought
to be charged; (4) under such circumstances as reasonably notified the person sought
to be charged that the plaintiff, in performing such services, was expecting to be paid
by the person sought to be charged. City of Ingleside v. Steward, 554 S.W.2d 939,
943 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.); Crockett v. Brady, 455
S.W.2d 807, 808 (Tex.Civ.App.—Austin 1970, no writ); Crocket v. Sampson, 439
S.W.2d 355, 358 (Tex.Civ.App.—Austin 1969, no writ). Lopez presented no
evidence raising a genuine issue of material fact showing that valuable services or
materials were furnished for the Buchholzes, who are the persons sought to be
charged, those services and materials were accepted, used and enjoyed by the
Buchholzes, and those services or materials were provided under such circumstances
as reasonably notified the Buchholzes that Lopez expected them to pay him.
To sustain a quantum meruit claim, the evidence must show that the efforts
were undertaken for the person to be charged and not just that the efforts benefitted
that person. McFarland v. Sanders, 932 S.W.2d 640, 643 (Tex. App.—Tyler 1996,
38
no pet.). When a sub-contractor contracts with a contractor for work, an implied
contract, or claim for quantum meruit, with the owner is not created simply because
the owner is receiving a benefit and the proper responsible party is the contractor.
See id. The party seeking to recover in quantum meruit must establish that the work
done was accepted by the party to be charged “under such circumstances as
reasonably notified the recipient that the plaintiff, in performing expected to be paid
by the recipient.” Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 917 (Tex.
App.—Dallas 2008, no pet.); see Heldenfels Bros. v. City of Corpus Christi, 832
S.W.2d 39, 41 (Tex. 1992). The evidence must also show that this reasonable
notification occurred at the time the services were accepted. Heldenfels Bros., 832
S.W.2d at 41; Myrex Indus., Inc. v. Ortolon, 126 S.W.3d 548, 551 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied).
All the evidence in this case shows that Lopez was a subcontractor working
for Scott Preiss. There was a contract signed naming Scott Preiss as Contractor.29
The invoices for the work for which Lopez seeks payment are identical to invoices
submitted to Scott Preiss for other construction work on the home construction
project. Some of the invoices for prior work by Plaintiff Lopez were made out to
Scott Preiss, others were left blank.30 Some of the prior invoices to Scott Preiss were
29
CR 127-131, Buchholz MSJ, Exhibit A.
30
CR 132, 136; Buchholz MSJ, Exhibit B.
39
dated, others were not. 31 Requests for draws from a construction loan to Lopez for
prior work were signed by Scott Preiss. 32 Payment for prior work was received on
checks from Scott Preiss Homes. 33 The claimed work was memorialized in an
undated invoice and an invoice dated October 7, 2013, after work had been
completed.34 The first date the Buchholzes were given any notice that Lopez sought
payment from them personally was January 30, 2014.35
Even including their conclusory and self-serving statements, the affidavits and
invoices present no evidence raising a genuine issue of material fact showing that
valuable services or materials were furnished for the Buchholzes, and did not merely
benefit the Buchholzes. Nor do they present evidence raising a genuine issue of
material fact those services or materials were provided under such circumstances as
reasonably notified the Buchholzes that Lopez expected them to pay him.
Finally, the affidavits and invoices present no evidence raising a genuine issue
of material fact that reasonable notification occurred at the time the services were
accepted. At most, they show the Buchholzes received notice after the driveway,
sidewalk, and flagstone had been constructed. Thus, the Buchholzes could not have
31
Id.
32
CR 137-140; Buchholz MSJ, Exhibit C.
33
CR 149-156; Buchholz MSJ, Exhibit F.
34
CR 157-159, 162; Buchholz MSJ, Exhibit G and Exhibit I.
35
CR 163, Buchholz MSJ, Exhibit J.
40
been on notice Lopez expected to be paid for the services or materials until after
those materials or services were provided.
The affidavits and invoices notwithstanding, the summary judgment evidence
conclusively negates at least one element of Lopez’s claims for quantum meruit. A
“party generally cannot recover under quantum meruit where there is a valid contract
covering the services or materials furnished.” Houston Med. Testing Services, Inc.
v. Mintzer, 417 S.W.3d 691, 695 (Tex. App.—Houston [14th Dist.] 2013, no pet.);
see also Truly v. Austin, 744 S.W.2d 934, 936 (Tex.1988); Gen. Homes, Inc. v.
Denison, 625 S.W.2d 794, 796 (Tex. App.—Houston [14th Dist.] 1981, no writ)
(describing the rule as “well settled law”). The only evidence of a contract before
this court is the written contract between the Buchholzes and Scott Priess, the
contractor. As stated previously, all the evidence shows that Lopez was a
subcontractor for Preiss, and the invoices which he purports reflect work done for
the Buchholzes at Dave Buchholz’s request are identical to the invoices submitted
to Preiss. Lopez’s affidavits and invoices are insufficient to raise a genuine issue of
material fact as to the existence of a contract separate and apart from the contract for
the construction of the home.
4. Constitutional Lien
Because Plaintiff Lopez failed to meet the statutory requirements for
perfecting a statutory lien, he has rebranded his claim as a constitutional lien. A
41
constitutional lien is only available to those who contract directly with the property
owner. Da-Col Paint Mfg. Co. v. American Indem. Co., 517 S.W.2d 270, 273 (Tex.
1974); Gibson, 148 S.W.3d at 493. Because a constitutional lien requires a person
to be in privity of contract with the property owner, the lien does not apply to
derivative claimants such as subcontractors. See Gibson, 148 S.W.3d at 493. Thus,
“[w]hether one is considered an original contractor or a subcontractor is of
fundamental importance. A subcontractor does not have a constitutional lien, and
faces a more onerous burden in perfecting a statutory lien.” Da-Col Paint Mfg. Co.,
517 S.W.2d at 273 (citations omitted). A “subcontractor” is a person who has
furnished labor or materials to fulfill an obligation to an original contractor or to a
subcontractor to perform all or part of the work required by an original contract.
TEX. PROP. CODE ANN. § 53.001(7). “Original contract” means an agreement to
which an owner is a party either directly or by implication of law. Id.
Because a valid constitutional lien requires the existence of a valid contract
between the property owner and Lopez, the Buchholzes re-allege and incorporate by
reference their arguments set forth above that there was no contract between them
and Lopez, and that Lopez presented no evidence raising a genuine issue of material
fact as to the existence of a contract.
Alternatively, the Buchholzes’ summary judgment evidence conclusively
negated at least one element of Lopez’s claim he had a constitutional lien. In this
42
case the original contract is the agreement signed between the Buchholzes and Scott
Preiss.36 Plaintiff performed work and submitted invoices to Scott Preiss for the
construction of the home. 37 Scott Preiss signed draw requests and checks from Scott
Preiss were issued to Plaintiff Lopez. 38 The last dated invoice, submitted after all
work was completed, was submitted on the same day that the Buchholzes and Scott
Preiss signed affidavits stating that the construction was complete and all claims to
that date had been paid. 39
Because the work completed by Lopez was for the work contracted for
between the Buchholzes and Scott Preiss, and because there was no privity of
contract between the Buchholzes and Lopez, the affidavits and invoices present no
evidence raising a genuine issue of material fact that a contract existed between him
and the Buchholzes.
THIRD ISSUE (RESTATED)
NOTWITHSTANDING THE FACT THE TRIAL COURT SUSTAINED BUCHHOLZES'
OBJECTIONS TO THE AFFIDAVITS OF LOPEZ AND PREISS, LOPEZ DID NOT PRESENT
SUFFICIENT EVIDENCE IN SUPPORT OF HIS CLAIMS.
The Buchholzes first objected to the admissibility of the affidavits in their
entirety, and then to specific paragraphs in each affidavit. The Court in the Order
36
CR 127-131, Buchholz MSJ, Exhibit A.
37
CR 132, 136; Buchholz MSJ, Exhibit B.
38
CR 137-140, 149-156; Buchholz MSJ, Exhibit C and Exhibit F.
39
CR 147, 157-159; Buchholz MSJ, Exhibit E and Exhibit G.
43
granting the summary judgment, “sustain[ed] Defendant’s objections to Plaintiff’s
summary judgment evidence.” Therefore, the Court sustained the entirety of the
Buchholzes objection to both affidavits.
Even if Lopez is correct, and the Buchholzes did not object to paragraph 9 of
his affidavit, the paragraph and invoices are nonetheless insufficient to raise a
genuine issue of material fact. Paragraph 9 states that the “undated invoice and the
invoice dated October 7, 2013 ... were submitted to Dave H. Buchholz for payment
on or about October 7, 2013.”40 Lopez contends that the invoices reference the
Buchholz’s home (840 Haven Point Loop), identify the work performed, that the
work so identified was “flagstone porch and steps,” “cover with flagstone bench,”
“driveway,” and “seventeen steps,” and that the October 7, 2013 invoice references
the $5,000 credit, and that said evidence, standing on its own, presents more than a
scintilla of evidence on Lopez’s quantum meruit claim. 41 He further argues that the
draw requests, invoices, and checks from Preiss to Lopez, attached to the Buchholz’s
motion for summary judgment, demonstrate that the driveway, sidewalk, and
flagstone work were outside the scope of work originally performed by Lopez for
Preiss as a subcontractor.
40
CR 190.
41
CR 191.
44
The invoices show only that work was purportedly performed at 840 Haven
Point Loop, the purported nature of the work, and the purported charges. They do
not show that those services were performed separate and apart from the written
contract between the Buchholzes and Scott Preiss. When compared to the other
invoices, which Lopez admits were for work he did as a subcontractor for Preiss, the
invoices are indistinguishable. Like some of the invoices presented to Preiss by
Lopez, the two invoices identify no one in the “sold to” section. Like all of the
invoices submitted to Scott Preiss, they identify work done at 840 Haven Point Loop.
And like some of the invoices submitted to Scott Preiss, one is dated, and one is not.
So how are they distinguishable? They are not.
The fact that Lopez says he submitted the invoices to Dave Buchholz for
payment on or about October 7, 2013, is not enough to remove them from the ambit
of the Buchholz’s written contract with Scott Preiss, or whatever agreement Lopez
had with Preiss. What would set the invoices apart is a statement by Lopez that he
had an agreement with Dave or Mary Buchholz to do the work. That statement does
not exist. What does exist are conclusory and self-serving statements that dance
around that key point, but never state it. If the conclusory and self-serving statements
are inadmissible, paragraph 9 and the two invoices are not enough to save Lopez’s
quantum meruit claim.
45
FOURTH ISSUE
THE TRIAL COURT PROPERLY AWARDED THE BUCHHOLZES ATTORNEYS' FEES FOR
THEIR DECLARATORY JUDGMENT COUNTERCLAIM BECAUSE THE DECLARATORY
JUDGMENT COUNTERCLAIM SOUGHT AFFIRMATIVE RELIEF DIFFERENT THAN THE
RELIEF REQUESTED BY LOPEZ.
Lopez raises this argument for the first time on appeal. As a prerequisite to
presenting a complaint for appellate review, the record must show that “the
complaint was made to the trial court by a timely request, objection, or motion . . .
with sufficient specificity to make the trial court aware of the complaint.” TEX. R.
APP. P., Rule 33.1(a). This is true of an alleged trial error regarding an attorney’s
fees award because such error is not fundamental. Jimoh v. Nwogo, 2014 Tex. App.
LEXIS 13797, 2014 WL 7335158 (Tex. App. Houston 1st Dist. Dec. 23, 2014)
(citing Kelly v. Brenham Floral Co., No. 01-12-01000-CV, 2014 Tex. App. LEXIS
9464, 2014 WL 4219448, at *4 (Tex. App.—Houston [1st Dist.] Aug. 26, 2014, no
pet.) (mem. op.); Tex. Dep’t of Pub. Safety v. Burrows, 976 S.W.2d 304, 307 (Tex.
App.—Corpus Christi 1998, no pet.)).
Lopez never raised this argument to the trial court, either in his response to
Defendants’ motion for Summary Judgment, or in his motion for rehearing. The only
argument provided by Lopez in his response was that the Buchholzes had requested
attorney’s fees under Chapter 38 of the Texas Civil Practices & Remedies Code, but
had presented no evidence of their entitlement to fees under that Chapter. See TEX.
CIV. PRAC. & REM. CODE § 38.001. However, the Buchholzes never requested
46
attorney’s fees under Chapter 38. Instead, they requested attorney’s fees under the
Texas Declaratory Judgments Act. TEX. CIV. PRAC. & REM. CODE § 37.009.
Furthermore, the Buchholzes presented evidence of attorney’s fees in the form of
the affidavit of Joseph L. Lanza, attached as Exhibit K to the Motion for Summary
Judgment.
Lopez also never raised an argument that the Buchholzes declaratory
judgment counterclaim “mirrored” his claim for foreclosure, or that a declaratory
judgment was not available to settle disputes already pending before the trial court,
and he never briefed that issue. Lopez only argued against granting summary
judgment in favor of the Buchholzes on his cause of action for foreclosure.
Therefore, his argument on appeal is waived because he did not first present it to the
trial court.
Alternatively, if the Court concludes Lopez raised and briefed this issue at the
trial level, or that the issue may be presented for the first time on appeal, the
Buchholzes contend that their claim for declaratory relief does not mirror Lopez’s
claim for foreclosure of his constitutional lien; therefore they are entitled to
declaratory relief, and attorney’s fees.
Lopez sought to foreclose on his constitutional lien. There are two sources of
protection for mechanics and materialmen in Texas: (1) article XVI, section 37, of
the constitution; and (2) chapter 53 of the Property Code. TEX. CONST. art. XVI, §
47
37; TEX. PROP. CODE §§ 53.001-.260; see Hayek v. Western Steel Co., 478 S.W.2d
786, 790-91 (Tex. 1972). The constitution grants to each contractor who enters into
a direct contractual relationship with the real property owner a lien upon the property
for materials and labor provided in improving it. TEX. CONST. art. XVI, § 37; Hayek,
478 S.W.2d at 790. The constitutional lien is self-executing, meaning that no notice
or filing requirements must be met for the lien to attach. The lien exists
independently and apart from any legislative act. See Strang v. Pray, 89 Tex. 525,
35 S.W. 1054, 1056 (1856). Thus, the lien exists, whether or not suit is filed, and so
long as the lien exists, it is a cloud on the title of the property.
When a declaratory judgment counterclaim has greater ramifications than the
original suit, the trial court may allow the counterclaim. BHP Petroleum Co. v.
Millard, 800 S.W.2d 838, 842 (Tex. 1990). “A party bringing a counterclaim may
recover attorney’s fees under the Uniform Declaratory Judgment Act if its
counterclaim is more than a mere denial of the plaintiff's cause of action.” Industrial
Structure & Fabrication v. Arrowhead Indus. Water, 888 S.W.2d 840, 845,
(Tex.App.—Houston 1st Dist. 1994, no pet.)(citing HECI Exploration Co. v. Clajon
Gas Co., 843 S.W.2d 622, 638 (Tex. App.--Austin 1992, writ denied)(citing BHP
Petroleum Co., 800 S.W.2d at 841-42)). A counterclaim is more than a mere denial
of the plaintiff’s cause of action when the counterclaim seeks “some form of
48
affirmative relief.” Coastal States Crude Gathering Co. v. Natural Gas Odorizing,
Inc., 899 S.W.2d 289, 291 (Tex.App.—Houston[1st Dist.] 1995, writ denied).
In this regard, Industrial Structure & Fabrication v. Arrowhead Indus. Water,
888 S.W.2d 840, 845, (Tex.App.—Houston 1st Dist. 1994, no pet.) is instructive. In
that case, plaintiff sued on an M&M lien. The two defendants brought counterclaims
in the form of declaratory judgment actions. One defendant, Air Products, sought a
declaration to remove the cloud on title that resulted from the filing of an invalid
lien. The second defendant, Arrowhead, sought a declaration that the contract
between it and the plaintiff was fully performed, that both parties were discharged,
and that no other obligation existed. The court of appeals held that the counterclaims
for declaratory judgment were more than mere denials of the plaintiff’s claim, and
the trial court did not abuse its discretion in awarding attorney’s fees. Id.
CONCLUSION
In conclusion, for the foregoing reasons, the trial court properly excluded the
affidavits of Juan Lopez and Scott Preiss. Regardless of whether such exclusion was
proper, in whole or in part, Lopez nonetheless failed to present sufficient summary
judgment evidence to raise a genuine issue of material fact on each of the challenged
elements in his causes of action or, in the alternative, the Buchholzes negated at least
one element of each claim. The Buchholzes were entitled to summary judgment on
49
all of Lopez’s claims. Accordingly, they respectfully request this Honorable Court
to affirm the judgment of the trial court.
Respectfully submitted:
By: /s/ Joseph L. Lanza
Joseph L. Lanza
Texas Bar No. 00784447
J. Seth Grove
Texas Bar No. 24069833
The Vethan Law Firm, P.C.
8700 Corwnhill Blvd., Suite 302
San Antonio, Texas 72209
(713) 526-2222 voice
(713) 526-2230 facsimile
Attorneys for Appellee
Antonio Murillo d/b/a
Tiger Construction
50
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4
I hereby certify that the foregoing document complies with the requirements
of TEX. R. APP. P., Rule 9.4(e) and (i), in that the typeface is 14 point New Times
Roman, with footnotes being in 12 point, and the brief, exclusive of the items
excluded under Rule 9.4(i)(1), does not exceed 15,000 words in length.
/s/ Joseph L. Lanza
Joseph L. Lanza
CERTIFICATE OF SERVICE
I certify that on July 2, 2015, a true and correct copy of the attached was served
on all attorneys of record in accordance with the Texas Rules of Appellate Procedure
as shown below:
COATS|ROSE Via Electronic Service
Richard C. McSwain
Adam J. Richie
Ryan T. Kinder
Jamie Cohen
1020 Northeast Loop 410, Suite 800
San Antonio, Texas 78209
Attorneys for Appellant Juan O. Lopez d/b/a J.J. Construction Co.
/s/ Joseph L. Lanza
Joseph L. Lanza
51