Kevin L. Hood v. Hanna & Hanna Inc. ( 2020 )

Affirmed in Part and Reversed in Part and Remanded and Memorandum
Opinion filed April 23, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00557-CV
KEVIN L. HOOD, Appellant
V.
HANNA & HANNA INC., Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1106883
MEMORANDUM OPINION
Appellee, Hanna & Hanna, Inc. performed court reporting services for
appellant, Kevin L. Hood. When Hood failed to pay for those services, Hanna &
Hanna filed suit against Hood alleging several different causes of action. Hanna &
Hanna filed a motion for summary judgment on its claims soon after filing the
lawsuit, which the trial court granted. Hood challenges that final summary
judgment on appeal. Concluding that Hanna & Hanna established its right to
summary judgment on its breach of contract claim, we affirm that portion of the
trial court’s final summary judgment. But, because we conclude that Hanna &
Hanna failed to prove the amount of attorney’s fees incurred in this litigation as a
matter of law, we sustain Hood’s fifth issue, reverse the trial court’s summary
judgment in part, and remand the case to the trial court for further proceedings.
BACKGROUND
Hanna & Hanna operates a court reporting service. It is undisputed that
Hanna & Hanna provided court reporting services in a lawsuit in which Hood
represented the plaintiff. It is also undisputed that seven depositions were taken
during which Hanna & Hanna provided the court reporter. Hanna & Hanna sent
invoices to Hood for each of the seven depositions. Hanna & Hanna’s charges for
all seven depositions totaled $7,998.39.
Hanna & Hanna filed suit alleging the following causes of action: (1) suit on
a sworn account, (2) breach of contract, (3) suit on an open account, and (4)
quantum meruit. It also alleged that Hood was liable pursuant to section 52.059 of
the Government Code because he asked the first question at the deposition or
requested a copy of the deposition transcript.1 Hanna & Hanna alleged that it had
suffered damages totaling $7,998.38 plus attorney’s fees. Hood filed a verified
answer generally denying Hanna & Hanna’s claimed damages, denying that Hanna
& Hanna’s charges constituted the usual and customary fees for the services
rendered, and also asserted that Hanna & Hanna had failed to meet the required
conditions precedent to recover attorney’s fees. Hood alleged no affirmative
1
Section 52.059 of the Texas Government Code creates statutory liability for an attorney
and his law firm for court reporter fees associated with a deposition unless the attorney states on
the record of the deposition that he and his law firm will not be responsible. Cole v. Gwendolyn
Parker, Inc., No. 05-13-01655-CV, 2015 WL 4626750, at *4 (Tex. App.—Dallas Aug. 4, 2015,
no pet.).
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defenses in his answer.
Hanna & Hanna filed a hybrid no-evidence and traditional motion for
summary judgment based on their claims for breach of contract, suit on a sworn
account, and section 52.059 of the Government Code thirty-two days after Hood
filed his answer. Prior to the motion’s submission date, Hood filed a verified
motion for continuance, objections to the movant’s summary judgment evidence,
and a substantive response to the motion itself. Hood did not, however, attach any
evidence, such as an affidavit, to his substantive response to Hanna & Hanna’s
motion. The trial court did not rule on Hood’s motion for continuance, or his
objections to Hanna & Hanna’s summary judgment evidence. The trial court
granted Hanna & Hanna’s motion and it signed a final summary judgment
awarding Hanna & Hanna $7,998.38 and $2,500 in attorney’s fees. This appeal
followed.
ANALYSIS
Appellant raises five issues on appeal. We need only address three of
appellant’s issues.
I. Hood did not preserve his first issue for appellate review.
In response to Hanna & Hanna’s motion for summary judgment, which was
set on the trial court’s submission docket, Hood filed a motion for continuance of
the summary judgment proceeding asserting that he needed additional time to
conduct discovery in order to adequately respond to Hanna & Hanna’s motion.
Hood argues in his first issue on appeal that the trial court abused its discretion
when it denied his continuance motion. The record, however, does not reflect that
the trial court ruled on Hood’s motion.
Rule 166a(g) of the Texas Rules of Civil Procedure permits a party opposing
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a motion for summary judgment to request a continuance of the hearing on the
motion so that discovery may be completed. DeAnda v. Jason C. Webster, P.C.,
No. 14-17-00020-CV, 2018 WL 3580579, at *4 (Tex. App.—Houston [14th Dist.]
July 26, 2018, pet. denied) (mem. op.). A party contending that it has not had an
adequate opportunity for discovery before a summary-judgment hearing must
either file an affidavit explaining the need for further discovery or file a verified
motion for continuance. Muller v. Stewart Title Guaranty Co., 525 S.W.3d 859,
866 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Merely filing a motion for
continuance is not enough, standing alone, to preserve error. See id. at 867, n.7
(stating in a summary judgment case, that showing a motion was filed with the
court clerk does not constitute proof that the motion was brought to the trial court’s
attention or presented to the trial court with a request for a ruling). Instead, a party
must obtain a ruling, or object to the trial court’s failure to rule on that party’s
motion for continuance to preserve that issue for appellate review. See id; Bryant
v. Jeter, 341 S.W.3d 447, 451 (Tex. App.—Dallas 2011, no pet.) (“In this case, the
record does not show that Bryant’s motion for continuance was brought to the trial
court’s attention. Likewise, the record does not show that the trial court either
denied the motion or refused to rule on the motion. And to the extent that the trial
court refused to rule on the motion, the record does not show that Bryant objected
to that refusal. As a result, we conclude that this issue has not been preserved for
appellate review.”); Yazdchi v. Walker, No. 01-05-00177-CV, 2009 WL 1270395,
at *2 (Tex. App.—Houston [1st Dist.] May 7, 2009, pet. denied) (mem. op.)
(“Because the record does not show that the motion for continuance was filed and
brought to the attention of the trial court or that the trial court ruled on it before it
granted summary judgment, we conclude that the appellants have failed to preserve
error, if any, on this issue.”).
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Here, while Hood did file a motion for continuance of the summary
judgment proceeding, he did not set the motion for a hearing, for submission, or
otherwise bring the motion to the trial court’s attention. There is also no indication
in the record that Hood objected to the trial court’s failure to rule on his motion for
continuance. As a result, we conclude Hood failed to preserve error, if any, on this
issue. We overrule Hood’s first issue on appeal.
II. Hanna & Hanna established its breach of contract claim as a matter of
law.
Hood argues in his second issue that the trial court erred when it granted
Hanna & Hanna’s traditional motion for summary judgment on its breach of
contract claim. We disagree.
We review a trial court’s order granting a traditional summary judgment de
novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). In
reviewing a grant of summary judgment, we consider all of the evidence in the
light most favorable to the nonmovant. Ron v. AirTran Airways, Inc., 397 S.W.3d
785, 788 (Tex. App.—Houston [14th Dist.] 2013, no pet.). When a plaintiff such
as Hanna & Hanna, moves for summary judgment on its cause of action, it must
conclusively prove all essential elements of its claim as a matter of law. Cullins v.
Foster, 171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Evidence is considered conclusive if reasonable people could not differ in their
conclusions. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied). The nonmovant has no burden to respond
to a motion for summary judgment unless the movant conclusively establishes each
element of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 222–23 (Tex. 1999). If the movant establishes its entitlement to
judgment, then the burden shifts to the nonmovant to come forward with
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competent controverting evidence sufficient to raise a genuine issue of material
fact. Muller, 525 S.W.3d at 868.
“A breach of contract occurs when a party fails or refuses to do something
he has promised to do.” XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 632 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). When alleging that a defendant
breached a contract, a plaintiff must prove the following elements: (1) the
existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as
a result of the breach. Eurecat v. Marklund, 527 S.W.3d 367, 387 (Tex. App.—
Houston [14th Dist.] 2017, no pet.).
Hanna & Hanna moved for summary judgment on its breach of contract
claim. In support of its motion, it attached an affidavit from Kelly Hanna, a
director of Hanna & Hanna. Among other things, Hanna averred that Hood
“placed his order for our services.” Hanna also stated that Hood “personally
requested the work that we performed for him, but the invoices, attached hereto as
[an exhibit], have remained unpaid.” Hanna also attached seven invoices as well
as two transcript order forms to her affidavit. Hanna & Hanna’s summary
judgment evidence conclusively established each element of its breach of contract
claim.2 See Cole, 2015 WL 4626750, at *3 (affirming breach of contract finding
based on oral contract for court reporting services); May v. Ticor Title Ins., 422
S.W.3d 93, 100 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Determining
whether a party has breached a contract is a question of law for the court rather
than a question of fact for the jury when the facts of the parties’ conduct are
undisputed or conclusively established.”); Gensco v. Transformaciones
2
Hood did file objections to Hanna & Hanna’s summary judgment evidence. The trial
court did not rule on those objections. In addition, Hood has not raised any complaint on appeal
regarding the objections he lodged to Hanna & Hanna’s summary judgment evidence.
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Metalurgicias Especiales, S.A., 666 S.W.2d 549, 552–53 (Tex. App.—Houston
[14th Dist.] 1984, pet. dism.) (affirming breach of contract judgment based in part
on invoices admitted into evidence).
Once Hanna & Hanna proved its entitlement to summary judgment as a
matter of law, the burden shifted to Hood to raise a genuine issue of material fact
precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,
197 (Tex. 1995). Hood attached no evidence to his summary judgment response.
As a result, we conclude that he did not meet his burden to raise a genuine issue of
material fact precluding summary judgment. The trial court properly granted
Hanna & Hanna’s motion and properly awarded Hanna & Hanna breach of
contract damages in the amount of $7,998.38. See id. We overrule Hood’s second
issue on appeal.3
III. The trial court erred when it granted Hanna & Hanna’s motion for
summary judgment on its attorney’s fees claim.
Hood argues in his fifth issue on appeal that the trial court erred when it
granted Hanna & Hanna’s motion for summary judgment on Hanna & Hanna’s
claim for attorney’s fees. Because Hanna & Hanna presented no evidence of the
fees incurred in this litigation, we agree.
In support of its claim for $2,500 in attorney’s fees, Hanna & Hanna
included an affidavit from its attorney, James West. In that affidavit West averred
3
Having overruled Hood’s challenge to the trial court’s summary judgment on Hanna &
Hanna’s breach of contract claim, we need not address his third and fourth issues challenging the
trial court’s granting of Hanna & Hanna’s motion for summary judgment on Hanna & Hanna’s
other causes of action. See Tex. R. App. P. 47.1; Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,
473 (Tex. 1995) (stating that a non-movant is required to show that each ground alleged in the
motion for summary judgment was insufficient to support summary judgment); Gonzales v.
Thorndale Cooperative Gin and Grain Co., 578 S.W.3d 655, 657 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (“When the trial court does not specify the basis for its summary judgment,
the appellant must show that the trial court erred to base the summary judgment on every ground
asserted in the motion.”).
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as follows:
Service were [sic] rendered or based upon personal experience, will
be rendered on behalf of Bobcat of Houston Company Division of
Berry Companies, I in the prosecution of its claims and the collection
of its judgment in the above-captioned matter.
Because this statement addresses the provision of legal services to a different
entity, Bobcat of Houston, rather than Hanna & Hanna, it constitutes no evidence
that Hanna & Hanna incurred $2,500 in attorney’s fees while prosecuting this case.
See Ron, 397 S.W.3d at 788 (stating that a reviewing court must view the evidence
in the light most favorable to the nonmovant). Because a summary-judgment
movant must prove there is no genuine issue of material fact to prevail on its
motion, we conclude that Hanna & Hanna did not establish that it was entitled to
summary judgment on its attorney’s fee claim. See Rhone-Poulenc, Inc., 997
S.W.2d at 223 (stating that because a traditional motion for summary judgment
must stand on its own merits, a nonmovant can always argue on appeal that the
movant’s summary judgment evidence is insufficient as a matter of law, even if the
nonmovant did not file a response); State Farm Fire & Cas. Co. v. Vaughan, 968
S.W.2d 931, 933 (Tex. 1998) (citing Tex. R. Civ. P. 166a(c)). We therefore
sustain Hood’s fifth issue and reverse the trial court’s summary judgment on the
award of attorney’s fees to Hanna & Hanna.
CONCLUSION
Having overruled Hood’s issues challenging the trial court’s summary
judgment on Hanna & Hanna’s breach of contract cause of action, we affirm the
portion of the final summary judgment holding Hood liable for breach of contract
and awarding Hanna & Hanna $7,998.38 in damages. Having sustained Hood’s
challenge to the trial court’s summary judgment awarding Hanna & Hanna
attorney’s fees, we reverse that part of the trial court’s summary judgment and
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remand to the trial court for further proceedings consistent with this opinion.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Christopher, Bourliot, and Zimmerer.
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