IN THE TENTH COURT OF APPEALS
No. 10-21-00289-CV
AL'S ELECTRIC, LLC AND ALTON LABRECQUE, Appellants v.
DANIEL C. MCNEELY, Appellee
From the County Court at Law Ellis County, Texas Trial Court No. 15-C-3094
MEMORANDUM OPINION
Daniel C. McNeely sued Al’s Electric, LLC and Alton Labrecque for breach of
contract. Al’s Electric and Labrecque answered separately, and only Al’s Electric filed a
counterclaim against McNeely for breach of contract and quantum meruit. McNeely filed
a traditional motion for summary judgment against Al’s Electric and Labrecque only on
McNeely’s claim, although acknowledging Al’s Electric had filed a counterclaim. The
trial court granted McNeely’s motion but also “finally dispose[d] of all claims in this
case.” On appeal, Al’s Electric and Labrecque complain about the trial court’s summary judgment order and the award of attorney’s fees to McNeely. 1 Because the trial court
erred in disposing of Al’s Electric’s counterclaims and erred in granting summary
judgment on McNeely’s claim against Al’s Electric but did not err in granting summary
judgment on McNeely’s claim against Labrecque, the trial court’s judgment is affirmed
in part and reversed and this case is remanded, in part, for further proceedings.
BACKGROUND
As alleged in his original petition, McNeely hired “Defendant” 2 to provide
electrical services for an airplane hangar and paid $9,000 for the work that had been done.
McNeely alleged that all work had not been performed and that when failures were
communicated, “Defendant” acted in an “extreme and outrageous way,” refused to cure
any defects, and continued to perform work “in breach of the Plaintiff’s and the
Contractor’s expressed instructions.” McNeely alleged he had to hire another electrician
to repair and finish the electrical work at an expense of $16,361.
SUMMARY JUDGMENT
In four issues, Al’s Electric and Labrecque contend the trial court erred in granting
summary judgment because 1) the summary judgment evidence makes no mention of
Al’s Electric; 2) the motion sought summary judgment solely on McNeely’s breach of
1 Al’s Electric and Labrecque filed a joint brief. Issues One, Two, and Three relate only to Al’s Electric, and Issue Four relates only to Labrecque. Issues Five and Six, regarding attorney’s fees, relate to Labrecque and Al’s Electric, respectively.
2 The petition specifically names Al’s Electric as “Defendant.” Labrecque is named as a party but is not given the description “Defendant.” McNeely alleges he and “Defendant” entered into the contract and that “Defendant” failed to perform.
Al's Electric, LLC et al. v. McNeely Page 2 contract claim; 3) the order granted judgment against Al’s Electric and Labrecque, jointly
and severally; and 4) Labrecque raised a fact issue by stating the electrical work had been
completed. We discuss the second issue, first.
—Al’s Electric’s counterclaims
In the second issue, Al’s Electric contends that the trial court erred in disposing of
Al’s Electric’s counterclaims for breach of contract and quantum meruit when they were
not the subject of McNeely’s motion for summary judgment. We agree with Al’s Electric.
It is well-recognized that a summary judgment movant may not be granted
judgment as a matter of law on a cause of action not addressed in a summary judgment
proceeding, and that granting a summary judgment on a claim not addressed in the
summary judgment motion is reversible error. G & H Towing Co., 347 S.W.3d at 297; Black
v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); Chessher v. Southwestern Bell
Telephone Co., 658 S.W.2d 563, 564 (Tex. 1983). McNeely moved for summary judgment
on his breach of contract claim. While acknowledging Al’s Electric filed a counterclaim,
McNeely did not move for summary judgment on Al’s Electric’s claims. Because the trial
court’s Order Granting Plaintiff’s Motion for Summary Judgment stated that it “finally
dispose[d] of all claims in this case [,]” the order became final for purposes of appeal and
erroneously disposed of Al’s Electric’s claims. See G & H Towing Co. v. Magee, 347 S.W.3d
293, 298 (Tex. 2011). See also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
Issue Two is sustained.
Now we must also determine whether the summary judgment was correctly
granted as to McNeely’s claim and move to those issues on appeal.
Al's Electric, LLC et al. v. McNeely Page 3 —Standard of Review
We review a trial court's decision to grant or deny a summary judgment de
novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.
2007); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on
a traditional motion for summary judgment, the movant must show that no genuine
issue of material fact exists and that the movant is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002). The movant must conclusively establish its right to judgment as a matter of
law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively
established if reasonable people could not differ as to the conclusion to be drawn from
the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
If the movant meets its burden, the burden then shifts to the non-movant to raise
a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of material
fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755 (Tex. 2007). We take as true all evidence favorable to the non-movant, and we indulge
every reasonable inference and resolve any doubt in the non-movant's favor. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
—Insufficient Evidence of Al’s Electric’s Breach
In Issue One, Al’s Electric contends the trial court erred in granting summary
judgment against Al’s Electric because the summary judgment evidence is insufficient to
Al's Electric, LLC et al. v. McNeely Page 4 establish a breach of contract by Al’s Electric.
McNeely’s evidence in support of his motion for summary judgment consisted of
his affidavit, an affidavit of his expert and contractor, and an affidavit from his attorney
in support of a claim for attorney’s fees.
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IN THE TENTH COURT OF APPEALS
No. 10-21-00289-CV
AL'S ELECTRIC, LLC AND ALTON LABRECQUE, Appellants v.
DANIEL C. MCNEELY, Appellee
From the County Court at Law Ellis County, Texas Trial Court No. 15-C-3094
MEMORANDUM OPINION
Daniel C. McNeely sued Al’s Electric, LLC and Alton Labrecque for breach of
contract. Al’s Electric and Labrecque answered separately, and only Al’s Electric filed a
counterclaim against McNeely for breach of contract and quantum meruit. McNeely filed
a traditional motion for summary judgment against Al’s Electric and Labrecque only on
McNeely’s claim, although acknowledging Al’s Electric had filed a counterclaim. The
trial court granted McNeely’s motion but also “finally dispose[d] of all claims in this
case.” On appeal, Al’s Electric and Labrecque complain about the trial court’s summary judgment order and the award of attorney’s fees to McNeely. 1 Because the trial court
erred in disposing of Al’s Electric’s counterclaims and erred in granting summary
judgment on McNeely’s claim against Al’s Electric but did not err in granting summary
judgment on McNeely’s claim against Labrecque, the trial court’s judgment is affirmed
in part and reversed and this case is remanded, in part, for further proceedings.
BACKGROUND
As alleged in his original petition, McNeely hired “Defendant” 2 to provide
electrical services for an airplane hangar and paid $9,000 for the work that had been done.
McNeely alleged that all work had not been performed and that when failures were
communicated, “Defendant” acted in an “extreme and outrageous way,” refused to cure
any defects, and continued to perform work “in breach of the Plaintiff’s and the
Contractor’s expressed instructions.” McNeely alleged he had to hire another electrician
to repair and finish the electrical work at an expense of $16,361.
SUMMARY JUDGMENT
In four issues, Al’s Electric and Labrecque contend the trial court erred in granting
summary judgment because 1) the summary judgment evidence makes no mention of
Al’s Electric; 2) the motion sought summary judgment solely on McNeely’s breach of
1 Al’s Electric and Labrecque filed a joint brief. Issues One, Two, and Three relate only to Al’s Electric, and Issue Four relates only to Labrecque. Issues Five and Six, regarding attorney’s fees, relate to Labrecque and Al’s Electric, respectively.
2 The petition specifically names Al’s Electric as “Defendant.” Labrecque is named as a party but is not given the description “Defendant.” McNeely alleges he and “Defendant” entered into the contract and that “Defendant” failed to perform.
Al's Electric, LLC et al. v. McNeely Page 2 contract claim; 3) the order granted judgment against Al’s Electric and Labrecque, jointly
and severally; and 4) Labrecque raised a fact issue by stating the electrical work had been
completed. We discuss the second issue, first.
—Al’s Electric’s counterclaims
In the second issue, Al’s Electric contends that the trial court erred in disposing of
Al’s Electric’s counterclaims for breach of contract and quantum meruit when they were
not the subject of McNeely’s motion for summary judgment. We agree with Al’s Electric.
It is well-recognized that a summary judgment movant may not be granted
judgment as a matter of law on a cause of action not addressed in a summary judgment
proceeding, and that granting a summary judgment on a claim not addressed in the
summary judgment motion is reversible error. G & H Towing Co., 347 S.W.3d at 297; Black
v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); Chessher v. Southwestern Bell
Telephone Co., 658 S.W.2d 563, 564 (Tex. 1983). McNeely moved for summary judgment
on his breach of contract claim. While acknowledging Al’s Electric filed a counterclaim,
McNeely did not move for summary judgment on Al’s Electric’s claims. Because the trial
court’s Order Granting Plaintiff’s Motion for Summary Judgment stated that it “finally
dispose[d] of all claims in this case [,]” the order became final for purposes of appeal and
erroneously disposed of Al’s Electric’s claims. See G & H Towing Co. v. Magee, 347 S.W.3d
293, 298 (Tex. 2011). See also Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
Issue Two is sustained.
Now we must also determine whether the summary judgment was correctly
granted as to McNeely’s claim and move to those issues on appeal.
Al's Electric, LLC et al. v. McNeely Page 3 —Standard of Review
We review a trial court's decision to grant or deny a summary judgment de
novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.
2007); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on
a traditional motion for summary judgment, the movant must show that no genuine
issue of material fact exists and that the movant is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002). The movant must conclusively establish its right to judgment as a matter of
law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively
established if reasonable people could not differ as to the conclusion to be drawn from
the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
If the movant meets its burden, the burden then shifts to the non-movant to raise
a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of material
fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755 (Tex. 2007). We take as true all evidence favorable to the non-movant, and we indulge
every reasonable inference and resolve any doubt in the non-movant's favor. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
—Insufficient Evidence of Al’s Electric’s Breach
In Issue One, Al’s Electric contends the trial court erred in granting summary
judgment against Al’s Electric because the summary judgment evidence is insufficient to
Al's Electric, LLC et al. v. McNeely Page 4 establish a breach of contract by Al’s Electric.
McNeely’s evidence in support of his motion for summary judgment consisted of
his affidavit, an affidavit of his expert and contractor, and an affidavit from his attorney
in support of a claim for attorney’s fees. In his affidavit, McNeely only references
Labrecque, not Al’s Electric. For example, he alleged he contracted with Labrecque, he
paid Labrecque, Labrecque breached the contract, and he had to fix Labrecque’s work.
Likewise, the expert’s affidavit and attached report focuses only on Labrecque. The
expert encountered and worked with Labrecque and reviewed Labrecque’s work or the
work of Labrecque’s employee, Gary. The only time Al’s Electric is even mentioned is in
the expert’s report, in which the expert states, “McNeely introduced me to Alton
Labrecque, owner of Al’s Electric.” There was no summary judgment evidence that
McNeely had a contract with Al’s Electric or that Al’s Electric breached the contract if
there was one.
As the movant, McNeely was required to show that no genuine issue of material
fact exists and conclusively establish his right to judgment as a matter of law. In our de
novo review, and taking as true all evidence favorable to Al’s Electric, McNeely did not
satisfy his burden to establish his right to judgment as a matter of law against Al’s
Electric.
Issue One is sustained.
—Joint and Several Liability
In Issue Three, Al’s Electric complains that the trial court erred in awarding
judgment against both Al’s Electric and Labrecque, jointly and severally. Joint and
Al's Electric, LLC et al. v. McNeely Page 5 several liability is appropriate in contract cases when two or more persons promise the
same performance. Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 99 (Tex. App.—
Eastland 2006, pet. denied); see CTTI Priesmeyer, Inc. v. K & O Ltd. P'ship, 164 S.W.3d 675,
684 (Tex. App.—Austin 2005, no pet.). Because we have held that McNeely did not satisfy
his burden to establish his right to judgment as a matter of law against Al’s Electric for
breach of contract, the trial court erred in awarding judgment against Al’s Electric, jointly
and severally with Labrecque.
Issue Three is sustained.
—Against Labrecque
In Issue Four, Labrecque complains that summary judgment should not have been
granted against him because he raised a genuine issue of material fact precluding
summary judgment. Specifically, Labrecque contends that he raised a genuine issue of
material fact in a motion to dismiss, signed by Labrecque and presented for filing six days
after McNeely’s motion for summary judgment was filed, by stating the electrical work
was provided as required by the contract. The gist of the document in the record pointed
to by Labrecque is a request to dismiss Labrecque from the suit because Al’s Electric
contracted with McNeely, and thus, Labrecque, as an individual, cannot be sued. 3 This
document does not raise a genuine issue of material fact, one that reasonable and fair-
minded jurors could differ in their conclusions in light of all of the summary-judgment
3 This document was not sworn to or verified as is necessary for it to be considered as summary judgment evidence in response to the motion for summary judgment or as a verified denial of Labrecque’s liability in his individual capacity.
Al's Electric, LLC et al. v. McNeely Page 6 evidence, that the electrical work was provided as required by the contract.
Issue Four is overruled.
ATTORNEY’S FEES
In Issues Five and Six, Labrecque and Al’s Electric, respectively, assert the trial
court erred in granting attorney’s fees because McNeely failed to segregate his fees and
because this Court should reverse the judgment in favor of McNeely, the attorney’s fees
award must also be reversed.
Generally, a claimant must segregate legal fees accrued for those claims for which
attorney’s fees are recoverable from those that are not. Kinsel v. Lindsey, 526 S.W.3d 411,
427 (Tex. 2017); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006).
McNeely had only one claim, breach of contract, for which attorney’s fees are recoverable.
TEX. CIV. PRAC. & REM. CODE § 38.001(b)(8). There was no need to segregate the fees.
Issue Five is overruled. 4
Additionally, because we have found that the trial court erred in granting
summary judgment against Al’s Electric, no attorney’s fees may be awarded against Al’s
Issue Six is sustained.
CONCLUSION
Having sustained Issues One, Two, Three, and Six, we reverse the trial court’s
summary judgment and award of attorney’s fees against Al’s Electric on both McNeely’s
4 Moreover, all the evidence regarding attorney’s fees was for the claim against Labrecque, not Al’s Electric.
Al's Electric, LLC et al. v. McNeely Page 7 claim and on Al’s Electric’s counterclaim and remand this case for further proceedings.
Having overruled issues Four and Five, we affirm the trial court’s summary judgment
against Labrecque.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Reversed and remanded in part; affirmed in part Opinion delivered and filed October 19, 2022 [CV06]
Al's Electric, LLC et al. v. McNeely Page 8