Opinion issued June 27, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00315-CV ——————————— LUXURKEY MANAGEMENT LLC, Appellant V. ELENI ANTONELLOS FULLER AND MARIA ANTONELLOS BASSA, Appellees
On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2017-52683
MEMORANDUM OPINION
The trial court granted sisters Eleni Antonellos Fuller and Maria Antonellos
Bassa summary judgment to remove a mechanic’s and materialman’s lien placed on
their real property by Luxurkey Management LLC after Luxurkey paid, without
knowledge or consent of Fuller or Bassa, delinquent property taxes. The trial court declared, as a matter of law, that Luxurkey’s lien was invalid and that Fuller should
recover damages under the Fraudulent Lien Act. See TEX. CIV. PRAC. & REM. CODE
§ 12.002. On appeal, Luxurkey does not challenge either of these rulings; instead, it
contends the summary judgment must be set aside because the trial court erred in its
disposition of Luxurkey’s counterclaim for quantum meruit and affirmative defense
of offset and reimbursement. We affirm.
Background
Eleni Antonellos Fuller and her sister, Maria Antonellos Bassa, own real
property in Houston, Texas. The property has been in the family for more than 50
years and is Bassa’s homestead. The family fell behind on the property taxes for tax
years 2014 to 2016 and owed $78,077.70 in delinquent taxes.
Without the knowledge or consent of either Fuller or Bassa, Luxurkey
Management LLC made a payment through the county tax assessor’s website to cure
the delinquency. Seven days later, Luxurkey demanded in writing that Fuller
reimburse the company for $104,074.62, which Luxurkey alleged included amounts
for property taxes, a 25% redemption fee, and attorney’s fees. Fuller did not respond,
and Luxurkey mailed another demand letter. The second demand letter stated that it
was “formal notice of [Luxurkey’s] intent to file a mechanic’s and materialman’s
lien against the real property and improvements.” Luxurkey subsequently filed an
“Affidavit of Luxurkey Management LLC Claiming a Mechanic’s and
2 Materialman’s Lien” in the county real property records. Luxurkey filed the lien on
the property to “secure payment” for $104,074.62.
Fuller then filed a lawsuit seeking a declaration that Luxurkey’s lien was null
and void because it violated a certain provision of the Property Code as well as the
Fraudulent Lien Act. Luxurkey answered and asserted counterclaims against both
Fuller and Bassa to foreclose the lien or, alternatively, to recover under the doctrine
of quantum meruit.
After an adequate time for discovery had passed, Fuller moved for a
traditional summary judgment on the argument that the evidence conclusively
established the elements of her claims and conclusively negated at least one element
of Luxurkey’s counterclaims and (2) a no-evidence summary judgment on
Luxurkey’s counterclaims. The trial court granted these motions, declared that the
lien was invalid, awarded Fuller $10,000 under the Fraudulent Lien Act (as well as
costs and attorney’s fees), and dismissed Luxurkey’s counterclaims. The summary-
judgment order states that it “is final, disposes of all claims and all parties, and is
appealable.”
Analysis
Luxurkey argues the summary judgment must be set aside because the trial
court “ignored” Luxurkey’s quantum meruit counterclaim and failed to offset the
3 damages awarded to Fuller by the amount of the lien. We address each of these
arguments in turn.
A. Summary judgments are reviewed de novo
Luxurkey argues the summary judgment must be set aside as an abuse of the
trial court’s discretion. We, however, review a trial court’s summary-judgment order
de novo. See City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258
(Tex. 2018); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
To prevail on a traditional motion for summary judgment, the movant has the
burden to show that no genuine issue of material fact exists and that the trial court
should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); Oncor Elec., 539
S.W.3d at 258–59; KPMG Peat Markwick v. Harrison Cty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). In deciding whether there is a disputed material fact
issue precluding summary judgment, we take the evidence favorable to the
nonmovant as true. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548–
49 (Tex. 1985). Every reasonable inference must be indulged in favor of the
nonmovant and any doubts resolved in its favor. Id.
A trial court must grant a no-evidence motion for summary judgment if the
movant identifies at least one element of a claim or defense for which the nonmovant
would have the burden of proof at trial and the nonmovant produces no more than a
scintilla of evidence to raise a material fact question as to the challenged element.
4 See TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex.
App.—Houston [1st Dist.] 2009, no pet.). More than a scintilla of evidence exists
when the evidence presented would allow reasonable and fair-minded people to
differ in their conclusions. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
In general, a plaintiff moving for summary judgment is under no obligation to
negate a defendant’s pleaded affirmative defenses. Id. An affirmative defense
precludes summary judgment only if each element of the affirmative defense is
supported by summary judgment evidence. Woodside v. Woodside, 154 S.W.3d 688,
691–92 (Tex. App.—El Paso 2004, no pet.). Thus, to stave off a summary judgment
based on an affirmative defense, the nonmovant must raise a fact issue as to each
element of the defense. See “Moore” Burger, Inc. v. Phillips Petroleum Co., 492
S.W.2d 934, 936–37 (Tex. 1972); Mulvey v. U.S. Bank Nat’l Assoc., 570 S.W.3d
355, 359 (Tex. App.—El Paso 2018, no pet.) (“[A]n affirmative defense only
prevents the granting of summary judgment if each element of the affirmative
defense is supported by summary judgment evidence.”); Tesoro Petroleum Corp.,
106 S.W.3d at 124 (explaining that party raising affirmative defense in opposition
to summary-judgment motion “must either (1) present a disputed fact issue on the
opposing party’s failure to satisfy his own burden of proof or (2) establish at least
5 the existence of a fact issue on each element of his affirmative defense by summary
judgment proof”).
With these principles in mind, we review de novo the summary judgment.
B.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued June 27, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00315-CV ——————————— LUXURKEY MANAGEMENT LLC, Appellant V. ELENI ANTONELLOS FULLER AND MARIA ANTONELLOS BASSA, Appellees
On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2017-52683
MEMORANDUM OPINION
The trial court granted sisters Eleni Antonellos Fuller and Maria Antonellos
Bassa summary judgment to remove a mechanic’s and materialman’s lien placed on
their real property by Luxurkey Management LLC after Luxurkey paid, without
knowledge or consent of Fuller or Bassa, delinquent property taxes. The trial court declared, as a matter of law, that Luxurkey’s lien was invalid and that Fuller should
recover damages under the Fraudulent Lien Act. See TEX. CIV. PRAC. & REM. CODE
§ 12.002. On appeal, Luxurkey does not challenge either of these rulings; instead, it
contends the summary judgment must be set aside because the trial court erred in its
disposition of Luxurkey’s counterclaim for quantum meruit and affirmative defense
of offset and reimbursement. We affirm.
Background
Eleni Antonellos Fuller and her sister, Maria Antonellos Bassa, own real
property in Houston, Texas. The property has been in the family for more than 50
years and is Bassa’s homestead. The family fell behind on the property taxes for tax
years 2014 to 2016 and owed $78,077.70 in delinquent taxes.
Without the knowledge or consent of either Fuller or Bassa, Luxurkey
Management LLC made a payment through the county tax assessor’s website to cure
the delinquency. Seven days later, Luxurkey demanded in writing that Fuller
reimburse the company for $104,074.62, which Luxurkey alleged included amounts
for property taxes, a 25% redemption fee, and attorney’s fees. Fuller did not respond,
and Luxurkey mailed another demand letter. The second demand letter stated that it
was “formal notice of [Luxurkey’s] intent to file a mechanic’s and materialman’s
lien against the real property and improvements.” Luxurkey subsequently filed an
“Affidavit of Luxurkey Management LLC Claiming a Mechanic’s and
2 Materialman’s Lien” in the county real property records. Luxurkey filed the lien on
the property to “secure payment” for $104,074.62.
Fuller then filed a lawsuit seeking a declaration that Luxurkey’s lien was null
and void because it violated a certain provision of the Property Code as well as the
Fraudulent Lien Act. Luxurkey answered and asserted counterclaims against both
Fuller and Bassa to foreclose the lien or, alternatively, to recover under the doctrine
of quantum meruit.
After an adequate time for discovery had passed, Fuller moved for a
traditional summary judgment on the argument that the evidence conclusively
established the elements of her claims and conclusively negated at least one element
of Luxurkey’s counterclaims and (2) a no-evidence summary judgment on
Luxurkey’s counterclaims. The trial court granted these motions, declared that the
lien was invalid, awarded Fuller $10,000 under the Fraudulent Lien Act (as well as
costs and attorney’s fees), and dismissed Luxurkey’s counterclaims. The summary-
judgment order states that it “is final, disposes of all claims and all parties, and is
appealable.”
Analysis
Luxurkey argues the summary judgment must be set aside because the trial
court “ignored” Luxurkey’s quantum meruit counterclaim and failed to offset the
3 damages awarded to Fuller by the amount of the lien. We address each of these
arguments in turn.
A. Summary judgments are reviewed de novo
Luxurkey argues the summary judgment must be set aside as an abuse of the
trial court’s discretion. We, however, review a trial court’s summary-judgment order
de novo. See City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258
(Tex. 2018); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
To prevail on a traditional motion for summary judgment, the movant has the
burden to show that no genuine issue of material fact exists and that the trial court
should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); Oncor Elec., 539
S.W.3d at 258–59; KPMG Peat Markwick v. Harrison Cty. Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). In deciding whether there is a disputed material fact
issue precluding summary judgment, we take the evidence favorable to the
nonmovant as true. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548–
49 (Tex. 1985). Every reasonable inference must be indulged in favor of the
nonmovant and any doubts resolved in its favor. Id.
A trial court must grant a no-evidence motion for summary judgment if the
movant identifies at least one element of a claim or defense for which the nonmovant
would have the burden of proof at trial and the nonmovant produces no more than a
scintilla of evidence to raise a material fact question as to the challenged element.
4 See TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex.
App.—Houston [1st Dist.] 2009, no pet.). More than a scintilla of evidence exists
when the evidence presented would allow reasonable and fair-minded people to
differ in their conclusions. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
In general, a plaintiff moving for summary judgment is under no obligation to
negate a defendant’s pleaded affirmative defenses. Id. An affirmative defense
precludes summary judgment only if each element of the affirmative defense is
supported by summary judgment evidence. Woodside v. Woodside, 154 S.W.3d 688,
691–92 (Tex. App.—El Paso 2004, no pet.). Thus, to stave off a summary judgment
based on an affirmative defense, the nonmovant must raise a fact issue as to each
element of the defense. See “Moore” Burger, Inc. v. Phillips Petroleum Co., 492
S.W.2d 934, 936–37 (Tex. 1972); Mulvey v. U.S. Bank Nat’l Assoc., 570 S.W.3d
355, 359 (Tex. App.—El Paso 2018, no pet.) (“[A]n affirmative defense only
prevents the granting of summary judgment if each element of the affirmative
defense is supported by summary judgment evidence.”); Tesoro Petroleum Corp.,
106 S.W.3d at 124 (explaining that party raising affirmative defense in opposition
to summary-judgment motion “must either (1) present a disputed fact issue on the
opposing party’s failure to satisfy his own burden of proof or (2) establish at least
5 the existence of a fact issue on each element of his affirmative defense by summary
judgment proof”).
With these principles in mind, we review de novo the summary judgment.
B. The trial court did not err in dismissing Luxurkey’s counterclaim
Luxurkey argues that the summary judgment must be set aside because the
trial court “ignored” Luxurkey’s quantum meruit counterclaim in rendering a
judgment stating that it “is final, disposes of all claims and parties, and is
appealable.” The record does not support Luxurkey’s argument.
Fuller moved for summary judgment on Luxurkey’s quantum meruit
counterclaim on both traditional and no-evidence grounds. Luxurkey expressly
defended its quantum meruit counterclaim in its summary-judgment response. And
the trial court disposed of the quantum meruit counterclaim in its summary-judgment
order, stating that Fuller “is granted summary judgment on Defendant’s claims
seeking to foreclose its lien and for quantum meruit alleged in its Original Answer”
and that “those claims are hereby dismissed.” Thus, Luxurkey’s assertion that its
counterclaim was never resolved in the summary-judgment proceedings lacks merit.
To the extent Luxurkey argues that its quantum meruit counterclaim should
have survived dismissal, that argument also is unsupported by the record. Quantum
meruit is an equitable theory of recovery intended to prevent unjust enrichment. See
In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005). The law implies
6 a promise to pay for materials furnished or services rendered that are knowingly
accepted. Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944
(Tex. 1990); De Leon v. Saldana, 745 S.W.2d 55, 57 (Tex. App.—San Antonio
1987, writ denied). However, if the recipient is unaware of the work or services being
performed at the time of performance, there is no basis for a recovery in quantum
meruit. See De Leon, 745 S.W.2d at 57; Skyline Commercial, Inc. v. ISC Acquisition
Corp., No. 05-17-00028-CV, 2018 WL 4039863, at *6 (Tex. App.—Dallas Aug. 23,
2018, pet. denied) (mem. op.). To recover, a claimant thus must prove (1) it provided
valuable services or materials, (2) to the party sought to be charged, (3) which were
accepted, used, and enjoyed by that party, (4) under such circumstances as
reasonably notified the party that the claimant, in performing, expected to be paid
by the party. Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.
1992).
Fuller and Bassa argue there is no evidence that they knowingly accepted
Luxurkey’s property tax payment or knew when Luxurkey paid the property taxes
that Luxurkey expected to be reimbursed. We agree. Luxurkey presented evidence
that (1) the property taxes were delinquent; (2) a payment to cure the delinquency
was made on May 11, 2017; (3) Luxurkey demanded repayment from Fuller in
writing on May 18, 2017, and on July 11, 2017; and (4) Luxurkey filed its affidavit
“Claiming Mechanic’s and Materialman’s Lien” in the Harris County Real Property
7 Records on July 12, 2017. None of this is evidence that Fuller or Bassa knew
Luxurkey was paying the delinquent property taxes or consented to that payment at
the time of payment; it is, at most, evidence of Luxurkey’s effort to obtain
reimbursement from Fuller after the fact. See Heldenfels, 832 S.W.2d at 40–41
(rejecting subcontractor’s quantum meruit claim against City based on absence of
evidence that City knew subcontractor anticipated payment from City before
delivering construction materials). Consequently, the trial court’s summary
dismissal of Luxurkey’s quantum meruit counterclaim was not erroneous.
C. Luxurkey waived its argument that summary judgment was precluded by an affirmative defense
Luxurkey also argues that the summary judgment must be set aside because
the trial court “ignored” Luxurkey’s affirmative defense by failing to offset the
damages awarded to Fuller by the amount of the lien. Even assuming offset is
available as an affirmative defense, Luxurkey did not raise it in response to Fuller
and Bassa’s summary-judgment motion. Instead, Luxurkey only argued that Fuller
had not conclusively established the elements of her claims. To defeat summary
judgment by raising an affirmative defense. Luxurkey was required to present
argument and evidence raising that defense. Brownlee v. Brownlee, 665 S.W.2d 111,
112 (Tex. 1984). It was not enough to simply plead the affirmative defense. Am.
Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Lunsford Consulting
Grp., Inc. v. Crescent Real Estate Funding VIII, L.P., 77 S.W.3d 473, 475–76 (Tex.
8 App.—Houston [1st Dist.] 2002, no pet.). Luxurkey was required to produce
summary-judgment evidence in support of its affirmative defense. Brownlee, 665
S.w.2d at 112. Because Luxurkey did not, its affirmative-defense argument is
waived. Id.
Conclusion
Having rejected each of Luxurkey’s arguments for setting aside the trial
court’s summary judgment, we affirm.
Sarah Beth Landau Justice
Panel consists of Justices Lloyd, Landau, and Countiss.