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