Rocass L.L.C. D/B/A Rocass Homes v. Nancy Zazueta

• Court: Court of Appeals of Texas
• Decided: October 14, 2015
• Docket: 13-15-00233-CV
• Status: Published

Opinion

ACCEPTED 13-15-00233-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/14/2015 2:08:40 PM Dorian E. Ramirez CLERK

Cause No. 13-15-233-CV In The FILED IN 13th COURT OF APPEALS Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS 10/14/2015 2:08:40 PM For the DORIAN E. RAMIREZ Clerk Thirteenth Appellate District Corpus Christi, Texas

ROCASS L.L.C., D/B/A ROCASS HOMES APPELLANT

v.

NANCY ZAZUETA APPELLEE

BRIEF OF APPELLANT ROCASS L.L.C. D/B/A ROCASS HOMES

__/s/_Thomas G. Rayfield_____ Thomas G. Rayfield State Bar No. 16615825 1300 North Tenth Street, Suite 300 McAllen, Texas 78501-4392 Telephone (956) 994-1155 Telecopier (956) 994-1148

ORAL ARGUMENT WAIVED

i TABLE OF CONTENTS CERTIFICATE OF PARTIES iv

TABLE OF AUTHORITIES v

WAIVER OF ORAL ARGUMENT xiv

STATEMENT OF THE NATURE OF THE CASE 2

ISSUES PRESENTED 3

STATEMENT OF FACTS 4

SUMMARY OF ARGUMENT 10

ARGUMENT 11

[A] Summary Judgments Generally Improper 11

[B] Home Owner Failed to Present Competent Evidence 15

{1} SOME EXHIBITS WERE NOT SWORN 15

{2} HEARSAY CANNOT SUPPORT SUMMARY JUDGMENT 16

{3} NO COMPETENT EVIDENCE = NO SUMMARY JUDGMENT 24

[C] Ignoring Defects, Home Owner Presented Insufficient Evidence 24

{1} NO EVIDENCE OF CONTRACT WITH HOME OWNER 25

{2} NO ENFORABLE CONTRACT WITH HOME OWNER'S ASSOCIATION 26

{3} INSUFFICIENT EVIDENCE OF DAMAGES PRESENTED 30

[D] Builder Defeated Summary Judgment by Questioning Terms 34

{1} NON MOVANT DEFEATS MOTION BY CREATING A FACT ISSUE 34

ii {2} FACT ISSUE CREATED BY DISPUTING CONTRACTUAL TERMS 37

[E] Recovery Under Texas Residential Liability Act 39

CONCLUSION AND PRAYER 40

CERTIFICATE OF COMPLIANCE 41

CERTIFICATE OF SERVICE 41

iii CERTIFICATE OF PARTIES Appellant does hereby certify that the following are the parties and

their attorneys in this matter:

APPELLANT

ROCASS L.L.C., D/B/A ROCASS HOMES 1117 South Shary Road Mission, Texas 78572

APPELLANT'S COUNSEL

THOMAS G. RAYFIELD 1300 North Tenth Street, Suite 300 McAllen, Texas 78501-4392 Telephone (956) 994-1155 Telecopier (956) 994-1148

APPELLEE

Nancy Zazueta 4217 Ben Hogan Ave. McAllen Texas 78503

APPELLEE'S COUNSEL

Armando M. Guerra & Associates PLLC 113 North 9th Avenue Edinburg, Texas 78541 (956) 616-4641

iv TABLE OF AUTHORITIES CASES

Aldridge v. De Los Santos, 878 S.W.2d 288, 297 (Tex. App.--Corpus Christi, 1994, writ dism'd w.o.j.) 22

Allied Marketing Group, Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 172 (Tex. App.--Eastland 2003, pet. denied) 14

Amaya v. Potter, 94 S.W.3d 856, 861 (Tex. App.--Eastland 2002, pet. denied) 14

Amerada Hess Corp. v. Wood Group Production Technology, 30 S.W.3d 5 (Tex. App.--Houston [14th Dist.] 2000, pet. denied) 32

Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) 23

Arellano v. Americanos USA, LLC, 334 S.W.3d 326, 329 (Tex. App.-- El Paso 2010, no pet) 14

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) 23

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 284 (Tex. 1998) 32

Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc., 278 S.W.3d 470, 476 (Tex. App.--Houston [14th Dist.] 2009, no pet.) 13

Balawajder v. Texas Dept. of Criminal Justice Institutional Div., 217 S.W.3d 20, 27 n. 6 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) 34

Ballis v. Urban National Bank, 770 S.W.2d 590, 592 (Tex. App.-- Houston [14th Dist.] 1989, no writ) 36

Barrera v. Sanchez, 679 S.W.2d 704, 705 (Tex. App.--San Antonio 1984, no writ) 16

v Bennack Flying Service, Inc. v. Balboa, 997 S.W.2d 748, 751 (Tex. App.--Corpus Christi 1999, writ dism'd w.o.j.) 12

Birdwell v. Long, 508 S.W.2d 466, 468 (Tex. Civ. App.--Amarillo 1974, no writ) 35

Board of Adjustment of City of San Antonio v. Leon, 621 S.W.2d 431, 434 (Tex. Civ. App.--San Antonio 1981, no writ) 15

Brazos River Conservations & Reclamation Dist. v. Harmon, 178 S.W.2d 281, 292 (Tex. Civ. App.—Eastland 1944, writ ref’d) 36

Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 880 (Tex. App.-- Beaumont 2008, pet. denied) 18

City of San Antonio ex rel. City Public Service Bd. v. Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin 2009, pet. dism’d) 33

Cline v. Southwest Wheel & Mfg. Co., 390 S.W.2d 297, 299 (Tex. Civ. App.--Amarillo 1965, no writ) 18

Crawford v. Pullman, Inc., 630 S.W.2d 377, 379-80 (Tex. App.-- Houston [14th Dist.] 1982, no writ) 25

Day Cruises Maritime, L.L.C v. Christus Spohn Health System, 267 S.W.3d 42, 57 (Tex. App.--Corpus Christi 2008, pet. denied) 30

Deverian v. Aviall of Texas, Inc., 1991 WL 218799 at 4 (Tex. App.-- Dallas 1991, no writ) 37

Digby v. Texas Bank, 943 S.W.2d 914, 923 (Tex. App.--El Paso 1997, writ denied) 37

Dob's Tire and Auto Center v. Safeway Ins. Agency, 923 S.W.2d 715, 718 (Tex. App.--Houston [1st Dist.] 1996, writ dism’d w.o.j.) 11

Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.--Amarillo 2008, pet. denied) 27

Doss v. Homecomings Fin. Network, Inc., 210 S.W.3d 706, 713 (Tex. vi App.--Corpus Christi 2006, pet. denied) 27

Drew v. Lauder, 647 S.W.2d 749, 751 (Tex. App.--Corpus Christi 1983, writ ref'd n.r.e.) 35

Easley v. State, 986 S.W.2d 264, 269 (Tex. App.--San Antonio 1998, no p.d.r.) 17

E.B. Smith Co. v. United States Fidelity & Guar. Co., 850 S.W.2d 621, 624 (Tex. App.--Corpus Christi 1993, writ denied) 14

Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex. App.--Dallas 2008, no pet.) 23

Ellert v. Lutz, 930 S.W.2d 152, 155 (Tex. App.--Dallas 1996, no writ) 36

Empire Finance Service, Inc. v. Western Preferred Life Ins. Co., 461 S.W.2d 489, 490 (Tex. Civ. App.--Waco 1970, writ ref'd) 17

Farley v. Farley, 731 S.W.2d 733 (Tex. App.--Dallas 1987, no writ) 17

Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex. 1972) 12

Fibreboard Corp. v. Pool, 813 S.W.2d 658, 676 (Tex. App.--Texarkana 1991, writ denied), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993) 20

Fisher v. Yates, 953 S.W.2d 370, 380 (Tex. App.--Texarkana 1997), writ denied per curiam, 988 S.W.2d 730 (Tex. 1998) 35

Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 63 (1962) 35

Gentry v. Squires Construction, Inc., 188 S.W.3d 396, 404 (Tex. App.--Dallas 2006 no pet.) 39

Gerland's Food Fair, Inc. v. Hare, 611 S.W.2d 113, 116 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.) 17

Gonzalez v. City of Mission, 620 S.W.2d 918, 922 (Tex. Civ. App.-- Corpus Christi 1981, no writ) 30

vii Good v. Baker, 339 S.W.3d 260, 273 (Tex. App.--Texarkana 2011, pet. denied) 21

Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965) 12

Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297 (Tex. App.--Dallas 1994, no writ) 22

Greenville Ave. State Bank v. Lang, 421 S.W.2d 748, 751 (Tex. Civ. App.--Dallas 1967, no writ) 23

Guillen ex rel. Guillen v. Potomac Ins. Co. of Illinois, 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1, 14 (2003) 31

Gulbekian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952) 11

Hall v. Harris County Water Control & Improvement Dist., 683 S.W.2d 863 (Tex. App.--Houston [14th Dist.] 1984, no writ) 38

HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board, 235 S.W.3d 627, 658 (Tex. 2007) 34

Horn v. First Bank of Houston, 530 S.W.2d 864, 865 (Tex. Civ. App.--Houston [14th Dist.] 1975, no writ) 16

Houston Lighting & Power Co. v. Wheelabrator Coal Services Co., 788 S.W.2d 933, 935 (Tex. App.--Houston [14th Dist.] 1990, no writ) 12

Howe v. Kroger Co., 598 S.W.2d 929, 931 (Tex. Civ. App.--Dallas 1980, no writ) 22

In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) 27

In Re Price's Estate, 375 S.W.2d 900, 904 (Tex. 1964) 40

In re SSP Partners, 241 S.W.3d 162, 170 (Tex. App.--Corpus Christi 2007, pet. denied) 29

International Insurance Co. v. Herman G. West, Inc., 649 S.W.2d 824 825 (Tex. App.--Fort Worth 1983, no writ) 11

viii Keaton v. R. Dakin & Co., 716 S.W.2d 726, 727 (Tex. App.--Corpus Christi 1986, no writ) 12

Kotzur v. Kelly, 791 S.W.2d 254, 256 (Tex. App.--Corpus Christi 1990, no writ) 15

Laidlaw Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) 18

Lee v. McCormick, 647 S.W.2d 735, 737 (Tex. App.--Beaumont 1983, no writ) 12

M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) 25

Magnuson v. Mullen, 65 S.W.3d 815, 828 (Tex. App.--Fort Worth 2002, pet. denied) 18

Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex. App.--Houston [1st Dist.] 1991, writ denied) 27

MCI Telecommications Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999) 29

Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) 22

Merit Drilling Co. v. Honish, 715 S.W.2d 87, 92 (Tex. App.--Corpus Christi 1986, writ ref'd n.r.e.) 29

Miller v. State and County Mutual Fire Ins. Co., 988 S.W.2d 326, 330 (Tex. App.--Corpus Christi 1999, no writ) 13

Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 860 (Tex. Civ. App.--Fort Worth 1982, writ ref'd n.r.e.) 13

Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984) 13

Moore v. Memorial Hermann Hospital System, Inc., 140 S.W.3d 870, 874 (Tex. App.--Houston [14th Dist.] 2004, no pet.) 20

ix Motel Enterprises, Inc. v. Nobani, 784 S.W.2d 545 (Tex. App.--Houston [1st Dist.] 1990, no writ) 37

Munoz v. Gulf Oil Co., 693 S.W.2d 372, 374 (Tex. 1984) 24

Nationwide Property and Cas. Ins. Co. v. McFarland, 887 S.W.2d 487, 490 (Tex. App.--Dallas 1994, writ denied) 11

Neimes v. Ta, 985 S.W.2d 132, 137 (Tex. App.--San Antonio 1998, writ dism'd by agr.) 18

Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex. Civ. App.--Corpus Christi 1980, no writ) 11

Ortega v. City Nat. Bank, 97 S.W.3d 765, 772 (Tex. App.--Corpus Christi 2003, no pet.) 30

Ortiz v. State, 999 S.W.2d 600, 607 (Tex. App.--Houston [14th Dist.] 1999, no p.d.r.) 19

Parfait v. Jahncke Service, Inc., 484 F.2d 296, 301 (5th Cir. 1973) 31

Pennington v. Brock, 841 S.W.2d 127, 132 (Tex. App.--Houston [14th Dist.] 1992, no writ) 21

Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963) 33

Pjetrovic v. Home Depot, 411 S.W.3d 639, 647 (Tex. App.--Texarkana 2013, no pet.) 19

Portnow v. Berg, 593 S.W.2d 843, 845 (Tex. Civ. App.-- Houston [1st Dist.] 1980, no writ) 35

Powell v. Vavro, McDonald, and Associates, L.L.C., 136 S.W.3d 762, 765 (Tex. App.--Dallas 2004, no pet.) 17

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998) 13

Red Henry Painting Co. v. Bank of North Texas, 521 S.W.2d 339, 343 (Tex. Civ. App.--Corpus Christi 1975, no writ) 18

x Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 783 (Tex. App.--El Paso 2009, no pet.) 21

Roberts v. Geo Source Drilling Services, Inc., 757 S.W.2d 48, 51 (Tex. App.--Houston [1st Dist.] 1988, no writ) 36

Schwartz v. State, 120 Tex.Cr.R. 252, 46 S.W.2d 985, 987 (1931) 17

Shamrock Foods Co. v. Munn & Assocs., Ltd., 392 S.W.3d 839, 846 (Tex. App.--Texarkana 2013, no pet.) 18

Sorrells v. Giberson, 780 S.W.2d 936, 937-38 (Tex. App.--Austin 1989, writ denied) 25

Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 214 (Tex. 2002) 12

State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991) 36

State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996) 31

Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) 29

Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) 33

Tawes v. Barnes, 340 S.W.3d 419, 424 (2011) 29

Tesoro Petroleum Corp. v. Coastal Refining & Marketing, Inc., 754 S.W.2d 764, 767 (Tex. App.--Houston [1st Dist.] 1988, no writ) 36

Texas Commerce Bank-Rio Grande Valley, N.A. v. Correa, 28 S.W.3d 723, 726 (Tex. App.--Corpus Christi 2000, pet. denied) 13

Texas International Airlines v. Wits Air Freight, 608 S.W.2d 828, 830 (Tex. Civ. App.--Dallas 1980, no writ) 25

Texas Emp. Ins. Ass'n v. Collins, 321 S.W.2d 119, 122 (Tex. Civ. App.--El Paso 1959, writ ref'd n.r.e.) 17

Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S.W.

xi 1101, 1104 (1923) 28

Totman v. Control Data Corp., 707 S.W.2d 739, 742-43 (Tex. App.--Fort Worth 1986, no writ) 14

Treadway v. Holder, 309 S.W.3d 780, 785 (Tex. App.--Austin 2010, pet. denied) 34

Triton Commercial Properties, Ltd. v. Norwest Bank Texas, N.A., 1 S.W.3d 814, 817 (Tex. App.--Corpus Christi 1999, no writ) 12

Tucker v. Atlantic Richfield Co., 787 S.W.2d 555, 557 (Tex. App.-- Corpus Christi 1990, no writ) 15

United Parcel Service v. Helen of Troy Corp., 536 S.W.2d 415, 417 (Tex. Civ. App.--El Paso 1976, no writ) 37

Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20 (Tex. 1963) 35

Walton v. City of Midland, 24 S.W.3d 853, 855 (Tex. App.--El Paso 2000, no pet.) 14

Ward v. Crow, 476 S.W.2d 77 (Tex. Civ. App.--El Paso 1972, no writ) 37

Watson v. Citimortgage, Inc., 814 F.Supp.2d 726, 732 (E.D. Tex. 2011) 27

Wood v. Self, 362 S.W.2d 188 (Tex. Civ. App.--Dallas 1962, no writ) 18

Wright v. Lewis, 777 S.W.2d 520, 524 (Tex. App.--Corpus Christi 1989, writ denied) 19

Youngstown Sheet and Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962) 17

STATUTES AND RULES

Tex. Prop. Code §27.004(g) 33

xii Tex. Prop. Code §27.005 39

Tex. R. Evid. 803 19

OTHER AUTHORITIES

Jackson, Unlicensed to Drill: Proposed Renovations to the Texas Residential Construction Commission Act, 36 ST. MARY'S L.J. 753, 754 (2005) 39

McKenzie, PRIVATOPIA: HOMEOWNER ASSOCIATIONS AND THE RISE OF RESIDENTIAL PRIVATE GOVERNMENT (1996) 28

1 WILLISTON ON CONTRACTS §7:14 (4th ed. 2014) 27

xiii WAIVER OF ORAL ARGUMENT Certain required items do not assist in the resolution of an appeal.

The most obvious is table of authorities; hours and hours are wasted on

alphabetizing cases needlessly (especially when it is doubtful whether most

of the cases are actually read). Another matter which does not assist in the

resolution of an appeal is oral argument. While attorneys love to talk (and

hear the sound of their own voice), their hot air does not assist in writing

opinions, especially after several months have passed. Accordingly,

Appellant waives oral argument.

xiv Cause No. 13-15-233-CV In The Court of Appeals For the Thirteenth Appellate District Corpus Christi, Texas

BRIEF OF APPELLANT ROCASS L.L.C. D/B/A ROCASS HOMES TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES ROCASS L.L.C. d/b/a ROCASS HOMES,

Appellant in the above styled and numbered cause, and files this its

BRIEF OF APPELLANT, demonstrating that the trial court erred in

granting summary judgment, because the summary judgment movant

failed to present sufficient competent evidence to establish her claims as a

matter of law, and because genuine factual disputes exist, i.e., what were

the terms of the alleged contract in question, and whether the setoff for this

property belongs on the east side or on the west side.

1 STATEMENT OF THE NATURE OF THE CASE

This case involves a property setoff; the home owner thought the set

off belonged on the west side, while the architect, the builder and the City of

McAllen all thought the setoff belonged on the east side. To maintain her

space, the home owner entered into a settlement with her adjoining

neighbor, paying him $18,000 for a three and a half foot setoff. She then

sought to recoup this amount of this settlement from her builder, along

with attorney's fees in roughly the same amount. Despite the clear factual

dispute as to the proper location of the applicable setoff, the home owner

filed a motion for summary judgment, supported by incompetent evidence;

most of it was inadmissible hearsay, and indeed, the home owner failed to

prove the existence of any contractual provision, requiring the setoff.

Naturally, in response, the builder objected. It also presented its own

competent evidence, clearly demonstrating that the required set off was on

the east side, and the Home Owner's Association approved plans with a

zero setoff on the west side. Despite the lack of competent evidence to

support the motion, and the disputed nature of the competent evidence

properly before it, the trial court, County Court at Law No. 7, Sergio Valdez

presiding, inexplicably granted the summary judgment. This appeal

naturally followed.

2 ISSUES PRESENTED

Did the trial court err in granting summary judgment?

Must a traditional summary judgment be supported by competent

evidence?

Do documents constitute hearsay?

Do pleadings constitute hearsay?

Are a movant's pleadings competent summary judgment evidence?

Does certification by a court clerk render the document not hearsay?

Must business records satisfy all elements of predicate before they are

admissible?

If the business records affidavit fails to include evidence that records

were collected in the regular course of business, do the attached documents

remain hearsay?

Can a movant obtain a summary judgment premised on a conclusory

affidavit claiming building plans complied with subdivision plans?

Can a movant obtain a summary judgment on conclusory attorney's

fees from his attorney?

In order to obtain summary judgment for breach of contract, must

the plaintiff present a full and complete copy of the contact?

In order to obtain summary judgment, must the breach of contract

3 plaintiff prove the existence of the disputed term?

Must a contract possess mutuality of obligation to be enforceable?

Is a third party beneficiary contract created by acknowledgement of

reading terms?

In order to recoup monies paid in a settlement, must the seeking

party prove the settlement was reasonable and made in good faith?

Is summary judgment proper when the parties dispute the terms of

their agreement?

Does the Texas Residential Construction Act create a cause of action?

If a party cannot recover on his underlying cause of action, can he

recover under the Texas Residential Construction Act?

STATEMENT OF FACTS

As the poet Robert Frost has noted, good fences make good

neighbors. Frost, Mending Wall. But to erect a fence, room must exist

between the property's boundary line and the house neighboring house.

The case at bar involves the lack of such distance, and whose fault was it.

Nancy Zazueta, Appellee herein, purchased Lot 35 in the Falling

Water at Bentsen Lake Subdivision in McAllen, to build a home. Cl.R. 993-

95. Appellee (hereinafter referred to as "Home Owner") retained Grupo

Calqueza, an architectural firm in Reynosa, Mexico to design her house.

4 These plans contained a six foot setback on the west side, i.e. six feet lay

between her property line and outside wall of the house. Cl.R. 1058-76.

Because they were premised on an incorrect lot size, the house plans

prepared by Grupo Calqueza were rejected. Cl.R. 1208, 1211. Accordingly,

Home Owner retained De La Vega Plan Design, a local architectural firm, to

redraft her house plans. As Home Owner herself admitted, Cl.R. 979, the

De La Vega's plans did not contain a six foot set off on the west side1;

instead, the plans envisioned Home Owner's house being built abutting the

property line. Cl.R. 1084-1106.

The De La Vega plans (with their zero setoff) were submitted to the

Home Owner's Association at Falling Water Subdivision, where Home

Owner's lot is located. Cl.R. 1209. After reviewing these plans, the Home

Owner's Association (hereinafter referred to as "HOA") approved them.

Cl.R. 1210. Thus, the HOA implicitly approved the zero setback on the west

side of Home Owner's property.

Subsequently, the De La Vega plans were submitted to the City of

McAllen for its approval. These plans were likewise approved. Cl.R. 1118-

28, 1132-36. In the course of such approval, the City of McAllen expressly

noted the lack of a setoff on the west side of Home Owner's lot. Cl.R. 1115.

After receiving approval from the HOA and the City of McAllen, 1Instead, such plans called for the set off on the east side. 5 Home Owner submitted the De La Vega plans to Rocass Homes, Appellant

herein, for construction of the house. Cl.R. 1209. Home Owner and Rocass

Homes (hereinafter referred to as "Builder") entered into a contract for the

construction of the house, following the De La Vega plans.

Builder is not an architect; rather, Builder builds what the architect

designs. Builder constructed Home Owner's house according to the De La

Vega plans. And since the De La Vega plans call for a zero setback, the wall

of Home Owner's house abutted her property line along with west side.

Cl.R. 1209. Subsequently, the City of McAllen approved the house for

occupancy. Cl.R. 1137. Indeed, from all external appearances, Home

Owner should be proud of her new home. Cl.R. 1066-68.

After Builder constructed had constructed the home, Home Owner's

neighbor commenced constructing his home. At some point in time, Home

Owner realized that her neighbor was building too close for comfort, Cl.R.

1152-55; accordingly, she sought a temporary injunction against him. Cl.R.

5-13.

Home Owner eventually settled with her neighbor. The settlement

provided that in exchange for $18,000, her neighbor would provide a 3.5

foot set off. Cl.R. 1158-61. In compliance with her agreement, Home

Owner non suited her claims against him with prejudice. Cl.R. 14. But she

6 then sought recoupment of this amount, along with attorney's fees, from

Builder. Cl.R. 19-27.

Ignoring the disputed nature of the evidence, Home Owner filed a

motion for summary judgment, seeking recoupment of the settlement

amounts, costs to fix the alleged defects in the home, and attorney's fees.

Cl.R. 28-493. To correct defects in her summary judgment evidence and to

limit the defects complained of, Home Owner filed a first amended motion

for summary judgment. Cl.R. 510-977. She subsequently filed her second

amended motion for summary judgment, focusing solely on recoupment of

the settlement funds and attorney's fees. Cl.R. 978-1194. Her theory was

twofold: 1) the construction contract between Builder and herself required a

west setoff; and 2) the "contract" between Builder and the HOA required a

west setoff, which she was entitled to enforce as a third party beneficiary.2

She further sought recovery under Texas' Residential Construction Liability

Act (commonly referred to as "RCLA").3 Cl.R. 982-87.

To support her three motions, Home Owner killed a mountain of

trees. But some omissions are immediately noticeable: she never attached

a copy of the construction contract between herself and Builder. Cl.R. 28-

493, 510-977, 978-1194. Likewise, she never attached a copy of any

2This third party beneficiary theory was never asserted in her pleadings. Cl.R. 21-22. 3Tex. Prop. Code §27.001, et seq. 7 contract between HOA and Builder; instead, she merely claimed that

Builder's acknowledgment that it would comply with HOA's regulations,

Cl.R. 1080, created her contract. Cl.R. 982-83. And unfortunately for

Builder and the trees themselves, the evidence Home Owner presented was

overwhelmingly incompetent. For example, Home Owner attached her

pleadings as evidence, Cl.R. 1193-51, 1162-70, even though a movant's

pleadings has constituted incompetent summary judgment evidence almost

since the inception of Tex. R. Civ. P. 166a. She presented five business

record affidavits, all of which failed to establish the necessary business

record predicate. Cl.R. 1077-83, 1107-37, 1171-74, 1186-88, 1189-91. The

three substantive affidavits presented were completely conclusory, and

failed to establish both the alleged contractual terms, and the actual

elements necessary for the recoupment of a settlement from a defendant.

Cl.R. 1138, 1156-57, 1175-76.

Given Home Owner's repeated mountains of incompetent evidence,

Builder repeatedly objected. Cl.R. 494-97, 1195-99. But Builder did not

solely rest its summary judgment response on the incompetency of Home

Owner's evidence; instead, it presented its own competent summary

judgment evidence, disputing Home Owner's version of events. Builder

swore that the HOA approved the De La Vega plans, which Home Owner

8 admits did not contain the setoff. Builder also disputed Home Owner's

claim that the formational documents of the subdivision required the setoff

to be on the west side. The subdivision's plat did not contain such a set off.

A survey of the property did not contain the set off. And the HOA's

guidelines did not require a set off. Cl.R. 1195-1215. Thus, the "contract"

between HOA and Builder did not require a set off.

When a summary judgment movant fails to establish his burden, the

trial court must deny the motion. Likewise, when the competent summary

judgment evidence is conflicting, the trial court must deny the motion. But

the trial court herein clearly jettisoned such legal dictates into the trash can.

Instead, it rendered summary judgment. And to add insult to injury, the

trial court refused to rule on Builder's numerous evidentiary objections.

Cl.R. 1231-32.

In response, Builder filed a motion for new trial. Cl.R. 1233-58. Such

motion for new trial expressly complained of the trial court's failure to rule

on Builder's evidentiary objections. Cl.R. 1233. Likewise, it reiterated

Home Owner's failure to establish her summary judgment burden, and the

completely disputed nature of the summary judgment evidence. Cl.R.

1236-45. However, the trial court refused to Builder's motion for a hearing,

and thus the motion for new trial was overruled by operation of law. This

9 appeal timely followed. Cl.R. 1259-67.

SUMMARY OF ARGUMENT

The first issue in determining any traditional motion for summary

judgment is whether the movant has satisfied his initial burden, by

presenting sufficient and competent evidence. In the case at bar, Home

Owner clearly failed to satisfy its summary judgment burden, because her

evidence was not sworn for purposes of Tex. R. Civ. P. 166a, was hearsay,

failed to established the undisputed terms of the contract, and failed to

establish third party beneficiary status. As a result, the trial court clearly

erred in failing to summarily deny Home Owner's motion for summary

judgment.

In order to obtain summary judgment for breach of contract, the

movant must establish an enforceable contract, along with its actual terms.

Conversely, if the non movant proves a dispute in the contract's terms,

summary judgment is improper. In the case at bar, Home Owner failed to

establish a contract with any set off requirement, and failed to establish an

enforceable contract (and third party beneficiary status) between her HOA

and Builder. Furthermore, Builder created a fact issue by disputing the

terms of the agreement. As a result, summary judgment was improper.

The Texas Residential Construction Liability Act does not create a

10 cause of action; instead, it merely created a procedural and substantive

overlay over construction claims, and limits the damages recoverable by a

homeowner. As a result, because Home Owner cannot recover on her

breach of contract claim, she cannot recover under her RCLA claim.

ARGUMENT

[A] Summary Judgments Generally Improper

Motions for summary judgment are strictly construed, both with

regard to procedural and substantive law. International Insurance Co. v.

Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex. App.--Fort Worth 1983,

no writ). The purpose of a summary judgment is not to deprive a litigant of

his right to a trial by jury, but to eliminate patently unmeritorious claims

and untenable defenses. Gulbekian v. Penn, 151 Tex. 412, 252 S.W.2d 929,

931 (1952); Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex. Civ. App.--

Corpus Christi 1980, no writ).

“To obtain a summary judgment, a plaintiff-movant must (1) prevail

on each element of the cause of action, and (2) produce evidence that would

be sufficient to support an instructed verdict at trial.” Dob's Tire and Auto

Center v. Safeway Ins. Agency, 923 S.W.2d 715, 718 (Tex. App.--Houston

[1st Dist.] 1996, writ dism’d w.o.j.). A matter supports an instructed verdict

only if ordinary minds could not differ as to the conclusion to be drawn

11 from the evidence. Nationwide Property and Cas. Ins. Co. v. McFarland,

887 S.W.2d 487, 490 (Tex. App.--Dallas 1994, writ denied). This burden

has been characterized as "heavy" and "horrendous". Lee v. McCormick,

647 S.W.2d 735, 737 (Tex. App.--Beaumont 1983, no writ). If this burden is

not satisfied, then the case must be set for trial on the merits. Houston

Lighting & Power Co. v. Wheelabrator Coal Services Co., 788 S.W.2d 933,

935 (Tex. App.--Houston [14th Dist.] 1990, no writ).

In determining whether this burden has been satisfied, the non

movant is entitled to some of the strongest presumptions known in Texas

jurisprudence. All doubts as to the existence of a genuine issue of a

material fact are resolved in favor of the non movant. Keaton v. R. Dakin &

Co., 716 S.W.2d 726, 727 (Tex. App.--Corpus Christi 1986, no writ).

Accordingly, the evidence will be viewed in the light most favorable to the

non movant, Bennack Flying Service, Inc. v. Balboa, 997 S.W.2d 748, 751

(Tex. App.--Corpus Christi 1999, writ dism'd w.o.j.), and evidence favoring

the movant's position will be ignored (unless uncontroverted). Great

American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391

S.W.2d 41, 47 (Tex. 1965). All evidence favorable to the non movant must

be accepted as true, and any conflicts in the evidence will be disregarded.

Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex. 1972); Triton

12 Commercial Properties, Ltd. v. Norwest Bank Texas, N.A., 1 S.W.3d 814,

817 (Tex. App.--Corpus Christi 1999, no writ). Every reasonable inference

from the evidence must be indulged in favor of the non movant, and all

doubts resolved in his favor. Montgomery v. Kennedy, 669 S.W.2d 309, 311

(Tex. 1984); Miller v. State and County Mutual Fire Ins. Co., 988 S.W.2d

326, 330 (Tex. App.--Corpus Christi 1999, no writ). If any issue of material

facts exists, summary judgment is inappropriate. Moeller v. Fort Worth

Capital Corp., 610 S.W.2d 857, 860 (Tex. Civ. App.--Fort Worth 1982, writ

ref'd n.r.e.).

The applicable presumptions does not improve for the summary

judgment movant as his case traverses to the appellate court. On appeal,

the trial court's summary judgment is reviewed de novo. Texas Commerce

Bank-Rio Grande Valley, N.A. v. Correa, 28 S.W.3d 723, 726 (Tex. App.--

Corpus Christi 2000, pet. denied). As the Texas Supreme Court has

explained, “When conducting a de novo review, the reviewing tribunal

exercises its own judgment and redetermines each issue of fact and law. In

such a review, the reviewing tribunal accords the original tribunal's deci-

sion absolutely no deference.” Quick v. City of Austin, 7 S.W.3d 109, 116

(Tex. 1998)(emphasis added). Consequently, "Under Texas summary

judgment procedure, the trial court's ruling is entitled to no deference."

13 Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc., 278 S.W.3d

470, 476 (Tex. App.--Houston [14th Dist.] 2009, no pet.)(Frost, J., con.).

The question presented before the appellate court is not whether the

summary judgment proof presents material fact issues, but whether the

evidence presented to the trial court establishes, as a matter of law, all

elements of plaintiff’s cause of action. Totman v. Control Data Corp., 707

S.W.2d 739, 742-43 (Tex. App.--Fort Worth 1986, no writ). In making this

determination, this Court only considers the evidence before the trial court

at the time of the hearing. E.B. Smith Co. v. United States Fidelity & Guar.

Co., 850 S.W.2d 621, 624 (Tex. App.--Corpus Christi 1993, writ denied).

Unlike other final judgments reviewed on appeal, appellate courts do not

review the summary judgment evidence in the light most favorable to the

judgment of the trial court. Walton v. City of Midland, 24 S.W.3d 853, 855

(Tex. App.--El Paso 2000, no pet.). Instead, the evidence must be viewed

in the light most favorable to the non-movant. Allied Marketing Group,

Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 172 (Tex. App.--Eastland

2003, pet. denied). Every reasonable inference in favor of the non-movant

must be indulged in, Amaya v. Potter, 94 S.W.3d 856, 861 (Tex. App.--

Eastland 2002, pet. denied), with all doubts resolved in his favor. Arellano

v. Americanos USA, LLC, 334 S.W.3d 326, 329 (Tex. App.--El Paso 2010,

14 no pet). The appellate court will accept all evidence supporting non movant

as true, and will ignore all contradictory evidence. Southwestern Elec.

Power Co. v. Grant, 73 S.W.3d 211, 214 (Tex. 2002).

[B] Home Owner Failed to Present Competent Evidence

In order to prevail on a traditional motion for summary judgment,

the threshold burden is to present competent summary judgment evidence.

Generally, such burden is established by presenting affidavits, accompanied

by any relevant documentation. In this case, Home Owner failed to present

any lengthy affidavit, explaining the underlying facts. Instead, Home

Owner, in essence, only presented documentary evidence (and killed a

number of trees in the process). Cl.R. 28-493, 510-977, 978-1194. But

documentary evidence is not as readily admissible as affidavits are. And

while Home Owner did attempt to render such evidence admissible, such

efforts were largely failed.

{1} SOME EXHIBITS WERE NOT SWORN

Documents which are unsworn cannot be considered as summary

judgment evidence. Tucker v. Atlantic Richfield Co., 787 S.W.2d 555, 557

(Tex. App.--Corpus Christi 1990, no writ); Board of Adjustment of City of

San Antonio v. Leon, 621 S.W.2d 431, 434 (Tex. Civ. App.--San Antonio

1981, no writ); Sturm Jewelry, Inc. v. First Nat. Bank, Franklin, 593 S.W.2d

15 813, 814 (Tex. Civ. App.--Waco 1980, no writ). Indeed, so fundamental is

this prohibition is that it can be raised for the first time on appeal. Kotzur

v. Kelly, 791 S.W.2d 254, 256 (Tex. App.--Corpus Christi 1990, no writ).

In the case at bar, Home Owner presented the following documents

as summary judgment evidence:

 Home Owner's warranty deed (Cl.R. 993-95)

 Subdivision Restrictions (Cl.R. 997-1057)

 Grupo Calqueza Plans (Cl.R. 1058-76)

 De La Vega Building Plans (Cl.R. 1084-1106)

 Survey of Property (Cl.R. 1139)

 Docket Sheet (Cl.R. 1179-85)

 Demand Letter (Cl.R. 1192-93)

However, such exhibits were not "sworn to" as required by Tex. R. Civ. P.

166a. Thus, such exhibits were not competent summary judgment

evidence, and thus cannot support the trial court's judgment. Tucker v.

Atlantic Richfield Co., supra; Kotzur v. Kelly, supra.

{2} HEARSAY CANNOT SUPPORT SUMMARY JUDGMENT

In order to support a motion for summary judgment, evidence must

be admissible at a trial on the merits. Barrera v. Sanchez, 679 S.W.2d 704,

705 (Tex. App.--San Antonio 1984, no writ). Consequently, hearsay cannot

16 form the basis of a summary judgment. Horn v. First Bank of Houston, 530

S.W.2d 864, 865 (Tex. Civ. App.--Houston [14th Dist.] 1975, no writ);

Empire Finance Service, Inc. v. Western Preferred Life Ins. Co., 461 S.W.2d

489, 490 (Tex. Civ. App.--Waco 1970, writ ref'd). As the Texas Supreme

Court has remarked, "Hearsay may not be made the basis of a summary

judgment, and the trial judge should not be required to speculate as to

whether the affiant could establish the facts stated in his affidavit if he were

testifying from the witness stand.” Youngstown Sheet and Tube Co. v.

Penn, 363 S.W.2d 230, 232 (Tex. 1962).

In this regard, documents are considered hearsay. See, e.g., Powell v.

Vavro, McDonald, and Associates, L.L.C., 136 S.W.3d 762, 765 (Tex. App.--

Dallas 2004, no pet.); Farley v. Farley, 731 S.W.2d 733, 736 (Tex. App.--

Dallas 1987, no writ); Gerland's Food Fair, Inc. v. Hare, 611 S.W.2d 113, 116

(Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Likewise, all

statements contained in documents are considered hearsay. Schwartz v.

State, 120 Tex.Cr.R. 252, 46 S.W.2d 985, 987 (1931); Texas Emp. Ins. Ass'n

v. Collins, 321 S.W.2d 119, 122 (Tex. Civ. App.--El Paso 1959, writ ref'd

n.r.e.).4 As a result, Home Owner's warranty deed, Cl.R. 993-95, 1140-42,

the purported subdivision restrictions, Cl.R. 997-1057, Grupo Calqueza

4Likewise, hearsay within hearsay can be considered only if each portion is independently admissible. Easley v. State, 986 S.W.2d 264, 269 (Tex. App.--San Antonio 1998, no p.d.r.). 17 building plans, Cl.R. 1058-76, De La Vega building plans, Cl.R. 1084-1106,

survey of Home Owner's property, Cl.R. 1139, mediation agreement, Cl.R.

1158-61, her demand letter, Cl.R. 1192-93, along with the documents

attached to the business records affidavits, Cl.R. 1077-83, 1107-37, 1171-74,

1186-88, 1189-915 are hearsay, and therefore cannot support the summary

judgment.6 Shamrock Foods Co. v. Munn & Assocs., Ltd., 392 S.W.3d 839,

846 (Tex. App.--Texarkana 2013, no pet.).

Additionally, and in complete disregard of the prohibition of using

pleadings as summary judgment evidence,7 Home Owner relied upon her

original petition, Cl.R. 1193-51, and her second amended petition, Cl. 1162-

70, to demonstrate her entitlement to relief. Just like other documents,

pleadings constitute hearsay. Red Henry Painting Co. v. Bank of North

Texas, 521 S.W.2d 339, 343 (Tex. Civ. App.--Corpus Christi 1975, no writ);

Cline v. Southwest Wheel & Mfg. Co., 390 S.W.2d 297, 299 (Tex. Civ. App.--

5Why these documents fail to satisfy the business record exception will be explained, infra. 6Admittedly, the trial court's judgment does not contain an express ruling on the

objections. However, Builder in its motion for new trial excepted to the trial court's failure to rule. Cl.R. 1233. Such exception is sufficient to preserve error, Magnuson v. Mullen, 65 S.W.3d 815, 828 (Tex. App.--Fort Worth 2002, pet. denied); Builder could not do anything more. 7It is well settled that pleadings do not constitute summary judgment evidence. Laidlaw

Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). "[T]he factual allegations in pleadings are not summary judgment evidence, regardless of their level of detail, even if they are verified." Neimes v. Ta, 985 S.W.2d 132, 137 (Tex. App.--San Antonio 1998, writ dism'd by agr.). Accordingly, such pleadings will not support a summary judgment. Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 880 (Tex. App.-- Beaumont 2008, pet. denied). 18 Amarillo 1965, no writ); Wood v. Self, 362 S.W.2d 188, 190 (Tex. Civ. App.-

-Dallas 1962, no writ). Thus, such documents do not support the motion

for summary judgment.

Admittedly, the hearsay rule possesses numerous exceptions. Tex. R.

Evid. 803. Nevertheless, the party seeking to admit the hearsay must

establish the exception. Pjetrovic v. Home Depot, 411 S.W.3d 639, 647

(Tex. App.--Texarkana 2013, no pet.). For example, Home Owner may

understandably argue that her second amended petition, Cl. 1162-70,

mediation agreement, Cl.R. 1158-61, and bond check, Cl.R. 1185, were filed

with the county clerk's office, were certified true and correct, and thus,

cannot constitute hearsay. However, certification by a clerk does not

absolve a document from hearsay objections. Ortiz v. State, 999 S.W.2d

600, 607 (Tex. App.--Houston [14th Dist.] 1999, no p.d.r.).

Admittedly, Tex. R. Evid. 803 does provide a hearsay exception for

governmental documents. However, the documents encompassed by this

exception are documents generated by the government, not documents

filed with the government. Wright v. Lewis, 777 S.W.2d 520, 524 (Tex.

App.--Corpus Christi 1989, writ denied). "Rule 803(8), however, is appli-

cable only when the exhibit is prepared by public officials or employees

under their supervision in the performance of their official duties.

19 Documents prepared by private individuals and filed with a governmental

agency are not official documents as contemplated by Rule 803(8)." Fibre-

board Corp. v. Pool, 813 S.W.2d 658, 676 (Tex. App.--Texarkana 1991, writ

denied), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993).

Accordingly, Home Owner's pleadings, the bond check, and the mediation

agreement fall outside this exception; none of these documents were

prepared by the county clerk. Thus, the clerk's authentication does not

render these documents competent summary judgment evidence. Moore v.

Memorial Hermann Hospital System, Inc., 140 S.W.3d 870, 874 (Tex. App.-

-Houston [14th Dist.] 2004, no pet.).8

As summary judgment evidence, Home Owner submitted numerous

documents, attached to business records affidavits from the Falling Waters'

Home Owner's Association, Cl.R. 1077-83, the City of McAllen, Cl.R. 1107-

37, Armando M. Guerra & Associates, Cl.R. 1171-74, David Cazares, Cl.R.

1186-88, and Juan Zamora. Cl.R. 1189-91. Admittedly, business records

constitutes a well recognized exception to the hearsay rule. But Home

Owner repeatedly failed to satisfy the predicate.

To fall within the ambit of the business records exception, the movant

must establish:

8Home Owner's contention, i.e. relevance trumps any hearsay objection, Cl.R. 1222, is clearly without merit. 20 1) the records were made and kept in the course of a regularly conducted business activity;

2) it was the regular practice of the business activity to make the records;

3) the records were made at or near the time of the event that they record; and

4) the records were made by a person with knowledge who was acting in the regular course of business.

Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 783 (Tex. App.--El Paso

2009, no pet.). If this predicate is not established, then the documents

remain hearsay. Pennington v. Brock, 841 S.W.2d 127, 132 (Tex. App.--

Houston [14th Dist.] 1992, no writ). Consequently, if the movant fails to

establish this predicate, the trial court errs in considering the evidence.

Good v. Baker, 339 S.W.3d 260, 273 (Tex. App.--Texarkana 2011, pet.

denied).

In the case at bar, none of Home Owner business records affidavits

satisfy the required predicate. While the affidavits satisfied the first three

elements, they always failed to establish the fourth, i.e. the records were

made by a person with knowledge who was acting in the regular course of

business. Nowhere in these affidavits is this element even addressed.

Cl.R. 1077-78, 1107-08, 1171-72, 1186-87, 1189-90. Accordingly, the

business records exception was never established, and therefore the trial

21 court erred in considering such evidence. Good v. Baker, supra.

To shore up some of these evidentiary defects, Home Owner did

present the affidavit of Gayle King. Such affidavit states:

My name is Gayle King and I am the president of the Falling Water Home Owners association. . . . Under this restrictive covenant, any buyer of a lot that is located in Falling Water must submit their construction plans for approval prior to commen- cing construction.

As the association president, I am responsible for approving the construction plans prior to con- struction. On June 7, 2010, Rocass Homes L.L.C. submitted plans for approval that complied with the requirements of the deed restrictions that are property recorded with the county. The plans that were submitted by Rocass clearly reserved a 6 foot setback on the west side of lot 35. Additionally, Rocass signed a letter that they received and understood the deed restrictions and set backs.

Cl.R. 1138.

Legal conclusions in summary judgment affidavits are not competent

evidence. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984); Green

v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297 (Tex. App.--

Dallas 1994, no writ). For example, an affiant's conclusions “as to the legal

effects of [a] lease” are not competent summary judgment evidence. Howe

v. Kroger Co., 598 S.W.2d 929, 931 (Tex. Civ. App.--Dallas 1980, no writ).

In the case at bar, the King affidavit contains similar legal conclusions, i.e.

22 the plans submitted satisfied the subdivision restrictions. Cl.R. 1138.9 As a

result, such affidavit cannot sustain the summary judgment. See, Aldridge

v. De Los Santos, 878 S.W.2d 288, 297 (Tex. App.--Corpus Christi, 1994,

writ dism'd w.o.j.).

The King affidavit also suffers from another defect. As she herself

admits, Mrs. King allegedly approved the plans in question. Cl.R. 1138.

Accordingly, while she is a not a party to the litigation, she is an interested

witness; if she approved plans with the setoff was on the wrong side, fingers

can rightly be pointed at her.10 An affidavit from an interested witness

merely creates a fact issue, even if uncontradicted. Greenville Ave. State

Bank v. Lang, 421 S.W.2d 748, 751 (Tex. Civ. App.--Dallas 1967, no writ).

Thus, this affidavit cannot support the summary judgment.11

Similar problems repeat with Home Owner's attorney's fees affidavit.

This affidavit fails to mention the Arthur Andersen factors,12 explain which

factors apply, why they apply, and the fee resulting from their application.

9Home Owner completely failed to substantively respond to such defect. Cl.R. 1220-21. 10Indeed, she had been sued for her misconduct in this matter. Cl.R. 37-41. In response, Home Owner seeks to minimize her interested nature because of timing. Cl.R. 1221. But regardless of when such business records were created, King's credibility is at issue. 11Admittedly, an exception to this rule exists: the affidavit of an interested witness can

support summary judgment if it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Such exception does not apply, because the De La Vega plans, which she approved, Cl.R. 1209, contradict her statement. 12Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

23 With regard to appellate attorney's fees, only a net figure is presented,

without any explanation. Cl.R. 1174-75. Such conclusory affidavit cannot

sustain Home Owner's summary judgment burden. Eberstein v. Hunter,

260 S.W.3d 626, 630 (Tex. App.--Dallas 2008, no pet.).

{3} NO COMPETENT EVIDENCE = NO SUMMARY JUDGMENT

As previously noted, the first step in adjudicating a traditional

summary judgment is insuring the motion is supported by competent

proof. If the motion is unsupported by competent evidence, the trial court

errs in granting the motion. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 374

(Tex. 1984). In the case at bar, Home Owner's motion was not supported

by any competent proof. Her exhibits are not sufficiently sworn. Her

documents evidence are hearsay, and exceptions to the hearsay rule were

not established. And those affidavits presented are conclusory. As a result,

the summary judgment must be reversed.

[C] Ignoring Defects, Home Owner Presented Insufficient Evidence

In her motion for summary judgment, Home Owner sought recovery

for breach of contract and for liability under the Texas Residential

Construction Act, Tex. Prop. Code §27.001. Cl.R. 982-87. As clearly

demonstrated supra, Home Owner's motion never reaches first base,

because all her substantive evidence is incompetent. But even ignoring the

24 incompetency of her evidence, Home Owner still never reaches second base

in the summary judgment stadium, because her incompetent evidence fails

to establish as a matter of law all the elements of her cause of action and

recoverable damages.13

{1} NO EVIDENCE OF CONTRACT WITH HOME OWNER

When a breach of contract plaintiff seeks summary judgment, he

must prove the terms of the contract. To satisfy this burden, the plaintiff

must attach to his motion the full contract; "[n]either the trial court nor

[the reviewing] Court is free to speculate as to its contents." Sorrells v.

Giberson, 780 S.W.2d 936, 937-38 (Tex. App.--Austin 1989, writ denied).

This mandate is not satisfied by attaching a portion of the contract; instead,

the movant must attach the actual full and complete contract to his motion.

Crawford v. Pullman, Inc., 630 S.W.2d 377, 379-80 (Tex. App.--Houston

[14th Dist.] 1982, no writ). Should the plaintiff fail to attach actual full and

complete contract to his motion, he has failed to prove his entitlement to

summary judgment. Texas International Airlines v. Wits Air Freight, 608

13Admittedly, Builder's summary judgment response, Cl.R. 1195-1215, does not contain the specificity of this brief. However, a non movant is entitled to attack the sufficiency of a movant's summary judgment evidence for the first time on appeal. As the Texas Supreme Court has explained, "The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense. Summary judgments must stand on their own merits. Accordingly, the nonmovant need not respond to the motion to contend on appeal that the movant's summary judgment proof is insufficient as a matter of law to support summary judgment." M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). 25 S.W.2d 828, 830 (Tex. Civ. App.--Dallas 1980, no writ).

And so it is in the case at bar. As part of three summary judgment

motions, Home Owner never presented the full and complete contract

executed between the parties.14 Cl.R. 28-493, 510-977, 978-1194. While

such contract may have included terms concerning the location of the set

off, it may not, and this Court is not permitted to speculate. Sorrells v.

Giberson, supra.15 Thus, Home Owner failed to prove the existence of the

term which she claims was breached, precluding summary judgment. Id.;

Texas International Airlines v. Wits Air Freight, supra.

{2} NO ENFORCEABLE CONTRACT WITH HOME OWNER'S ASSOCIATION

Alternatively, Home Owner claimed that a contract existed between

her HOA and Builder, a contract which she could enforce as a third party

beneficiary. Cl.R. 977-78. Such contention is premised on a certification,

whereby Builder agreed that it reviewed the HOA's regulations and agreed

to their terms. Cl.R. 1080. As previously mentioned, Home Owner failed to

present competent evidence in this regard, because the HOA's business

record affidavit failed to establish the required predicate. Cl.R. 1077-78.

But even ignoring such evidentiary defects, Home Owner cannot recover on

14Such omission was pointed out to the trial court. Cl.R. 1201. 15Thus (and completely unrecognized by Home Owner, Cl.R. 1225), merely proving that a contract exists is insufficient; the summary judgment movant must prove the term which was breached. 26 this theory.

Every breach of contract action initially requires the existence of a

valid, enforceable contract. Doss v. Homecomings Fin. Network, Inc., 210

S.W.3d 706, 713 (Tex. App.--Corpus Christi 2006, pet. denied); Mandell v.

Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex. App.--Houston [1st

Dist.] 1991, writ denied). Completely unexplained by Home Owner herein,

Cl.R. 28-493, 510-977, 978-1194, a valid contract requires mutuality of

obligation.16

Fundamentally, a contract is an exchange of promises; each party

promises something in exchange for a reciprocal promise. Domingo v.

Mitchell, 257 S.W.3d 34, 40 (Tex. App.--Amarillo 2008, pet. denied). In

other words, for a contract to be enforceable, mutuality of obligation must

exist. In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010). Thus, “[a] contract

that does not require a party to furnish consideration, or oblige him to do

anything, lacks mutuality, is unilateral, and is unenforceable.” Watson v.

Citimortgage, Inc., 814 F.Supp.2d 726, 732 (E.D. Tex. 2011). As the Texas

Supreme Court has explained:

Mutuality of contract consists in the obligation on each party to do, or to permit something to be done, in consideration of the act or promise of the other. Contracts lacking in mutuality are often termed 16Mutuality of obligation can be viewed as simply another “way of stating that there must be valid consideration”. 1 WILLISTON ON CONTRACTS §7:14 (4th ed. 2014). 27 unilateral contracts. Mutuality of obligation is an essential element of every enforceable agreement. Mutuality is absent when one only of the contracting parties is bound to perform, and the rights of the parties exist at the option of one only. And, conversely, a contract is not unilateral where it contains mutual obligations binding on both parties. . . . Reduced to its last analysis, the rule is simply that a contract must be based upon a valid consideration, and that a contract in which there is no consideration moving from one party, or no obligation upon him, lacks mutuality, is unilateral, and unenforcible.

Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S.W. 1101,

1104 (1923).

In the case at bar, Builder's promise is easy to discern: compliance

with the HOA's regulations. Cl.R. 1080. But what exactly did the HOA

promise in return? Would it aid in surveying? Would it assist with the

construction? No; the HOA did not promise anything. In actuality, the

HOA was acting like a governmental zoning commission, merely providing

a green light to construction, but providing nothing in return.17 Thus,

mutuality of obligation for this alleged contract does not exist, rendering it

completely unenforceable. In re 24R, Inc., supra.

But even if a Home Owner presented sufficient evidence of mutuality

of obligation, she still failed to present sufficient evidence that such alleged

17The phenomenon of home owner's associations acting as arbitrary private fiefdoms is well documented. See, e.g., McKenzie, PRIVATOPIA: HOMEOWNER ASSOCIATIONS AND THE RISE OF RESIDENTIAL PRIVATE GOVERNMENT (1996); see also, Cl.R. 178, 232, 258, 1215. 28 contract was actually enforceable by her. Without discussing the required

evidence, Home Owner merely assumed that she was entitled to enforce the

alleged contract as a third party beneficiary. Cl.R. 983. But, as a review of

the actual law demonstrates, such assumption is not well taken.

Axiomatically, a "third party may enforce a contract it did not sign

when the parties to the contract entered the agreement with the clear and

express intention of directly benefitting the third party." Tawes v. Barnes,

340 S.W.3d 419, 424 (2011). However, a mere incidental benefit flowing

from the contract does not provide a third party standing to enforce it.

Instead, the alleged third party beneficiary must demonstrate that the

contracting parties actually intended to confer a direct benefit to the third

party. MCI Telecommications Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647,

651 (Tex. 1999). In other words, in order to enforce a contract as a third

party beneficiary, the plaintiff must establish (1) the contracting parties

intended to secure some benefit to that third party; and (2) the contracting

parties entered into the contract directly for the third party's benefit. Stine

v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002).

Parties are presumed to contract for themselves, Merit Drilling Co. v.

Honish, 715 S.W.2d 87, 92 (Tex. App.--Corpus Christi 1986, writ ref'd

n.r.e.), and thus courts presume the alleged third party beneficiary cannot

29 enforce the contract. In re SSP Partners, 241 S.W.3d 162, 170 (Tex. App.--

Corpus Christi 2007, pet. denied). Thus, third party beneficiary status

cannot be created by implication, and any reasonable doubt as to the

contracting parties' intent to confer a direct benefit on the third party

precludes recovery. Ortega v. City Nat. Bank, 97 S.W.3d 765, 772 (Tex.

App.--Corpus Christi 2003, no pet.). Furthermore, if a contract grants a

benefit to a general class of individuals, a member of such class cannot

enforce it as a third party beneficiary. Gonzalez v. City of Mission, 620

S.W.2d 918, 922 (Tex. Civ. App.--Corpus Christi 1981, no writ); see also,

Day Cruises Maritime, L.L.C v. Christus Spohn Health System, 267 S.W.3d

42, 57 (Tex. App.--Corpus Christi 2008, pet. denied).

Such principles preclude enforcement of the alleged contract by

Home Owner herein. Home Owner failed to present any summary

judgment evidence that Builder and HOA intended to directly benefit her

individually. Cl.R. 978-1194. At best, Home Owner claims membership

within the general class of beneficiaries, i.e. residents of Falling Waters

subdivision. Home Owner even admitted this. Cl.R. 983. But such

membership alone does not create third party beneficiary status. Thus,

Home Owner has failed to establish that she can enforce the alleged

contract. Day Cruises Maritime, L.L.C v. Christus Spohn Health System,

30 supra; Gonzalez v. City of Mission, supra.

{3} INSUFFICIENT EVIDENCE OF DAMAGES PRESENTED

The standard measure of damages for a breach of a construction

contract action, when destruction and rebuilding constitutes waste, is the

diminution in value. Given the nebulous nature of such damages as applied

herein, Home Owner instead measured her damages as the cost of the

settlement she entered with the neighboring landowner, along with

attendant mediation expenses and attorney's fees. Cl.R. 984-85. But as

previously noted, Home Owner failed to present competent evidence of the

settlement agreement and mediation expenses, Cl.R. 1158-61, and therefore

summary judgment is improper. But even if this Court ignores her failure

to properly prove damages, Home Owner still failed to satisfy its burden.

From a policy standpoint, inherent dangers exist whenever a litigant

can obtain recoupment of settlement monies. Guillen ex rel. Guillen v.

Potomac Ins. Co. of Illinois, 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1,

14 (2003). Aside from the possible corrosive effects on litigation, see, State

Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996), the

settling party may be too loose with his money, knowing that he may be

reimbursed in the future. Parfait v. Jahncke Service, Inc., 484 F.2d 296,

301 (5th Cir. 1973). Consequently, in this situation, the party seeking

31 recoupment of a settlement must prove that such settlement was made in

good faith and for a reasonable amount. Associated Indem. Corp. v. CAT

Contracting, Inc., 964 S.W.2d 276, 284 (Tex. 1998).18 Satisfaction of this

burden generally requires expert testimony. Amerada Hess Corp. v. Wood

Group Production Technology, 30 S.W.3d 5, 11 (Tex. App.--Houston [14th

Dist.] 2000, pet. denied).

Admittedly, Home Owner's alleged settlement with her neighbor does

not facially reek of excessiveness. Nevertheless, Home Owner failed to

present any evidence establishing either her good faith or reasonableness.

Her affidavit does not mention this issue. Cl.R. 1156-57. What she should

have done is presented the affidavit of her attorney, explaining why the

settlement was reasonable and made in good faith. Amerada Hess Corp. v.

Wood Group Production Technology, supra. But this topic is never

broached in his affidavit. Cl.R. 1175-76. Thus, summary judgment is

improper.

Furthermore, Home Owner failed to prove that her settlement is

recoverable under the RCLA. The statutes specifically provides:

In an action subject to this chapter the claimant

18This burden of proving reasonableness is properly placed upon the plaintiff both out of fairness, since the plaintiff was the one who agreed to the settlement, and out of practicality, since, as between the plaintiff and the defendant, the plaintiff will have better access to the facts bearing upon the reasonableness of the settlement. Guillen ex rel. Guillen v. Potomac Ins. Co. of Illinois, supra. 32 may recover only the following economic damages proximately caused by a construction defect:

(1) the reasonable cost of repairs necessary to cure any construction defect;

(2) the reasonable and necessary cost for the replacement or repair of any damaged goods in the residence;

(3) reasonable and necessary engineering and consulting fees;

(4) the reasonable expenses of temporary housing reasonably necessary during the repair period;

(5) the reduction in current market value, if any, after the construction defect is repaired if the construction defect is a structural failure; and

(6) reasonable and necessary attorney's fees.

Tex. Prop. Code §27.004(g). Omitted from such list are settlements.

“[I]t is settled that every word in a statute is presumed to have been

used for a purpose; and a cardinal rule of statutory construction is that each

sentence, clause and word is to be given effect if reasonable and possible.”

Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963). Thus, statutes must be

enforced as written, City of San Antonio ex rel. City Public Service Bd. v.

Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin

2009, pet. dism’d), despite any imperfections contained therein. Stockton

v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011). Similarly, the Legislature’s

33 omissions are considered significant; omitted words are presumed to have

been purposely excluded by the Legislature. Balawajder v. Texas Dept. of

Criminal Justice Institutional Div., 217 S.W.3d 20, 27 n. 6 (Tex. App.--

Houston [1st Dist.] 2006, pet. denied). Consequently (and despite any

advisability), courts are forbidden from expanding the plain language of

statutes. HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board,

235 S.W.3d 627, 658 (Tex. 2007); Treadway v. Holder, 309 S.W.3d 780,

785 (Tex. App.--Austin 2010, pet. denied). As a result, Home Owner's

failed to prove damages which can be awarded under the RCLA; settlement

is not the cost to repair.

[D] Builder Defeated Summary Judgment by Questioning Terms

Builder believes this Court's analysis can cease at this point because

Home Owner failed to satisfied to present competent summary judgment

evidence. And even if such defects are ignored, Home Owner's evidence

fails to establish, as a matter of law, a contract, enforceable by Home

Owner, the breach of which caused her to suffer recoverable damages. But

if this Court disagrees, the trial court still erred because the summary

judgment evidence is disputed concerning the alleged contract's terms.

{1} NON MOVANT DEFEATS MOTION BY CREATING A FACT ISSUE

"In a summary judgment proceeding, it is not the prerogative of the

34 court to judge the credibility of, or to determine the weight to be assigned to

the testimony given by the affidavits." Birdwell v. Long, 508 S.W.2d 466,

468 (Tex. Civ. App.--Amarillo 1974, no writ). "The summary judgment rule

is not intended to permit a trial by deposition or affidavit, and a motion for

summary judgment should not be resolved by weighing the relative

strength of conflicting facts and inferences." Fisher v. Yates, 953 S.W.2d

370, 380 (Tex. App.--Texarkana 1997), writ denied per curiam, 988 S.W.2d

730 (Tex. 1998); accord, Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557,

562 63 (1962); Drew v. Lauder, 647 S.W.2d 749, 751 (Tex. App.--Corpus

Christi 1983, writ ref'd n.r.e.).

Consequently, once a summary judgment movant has satisfied his

heavy and horrendous summary judgment burden, Lee v. McCormick,

supra, the trial court must nevertheless deny the motion if evidence of

probative force exists on the material questions presented, such that

reasonable men may differ as to the controlling facts. Portnow v. Berg, 593

S.W.2d 843, 845 (Tex. Civ. App.-- Houston [1st Dist.] 1980, no writ). In

other words, if the non movant has presented sufficient evidence which

would prevent a direct verdict against him, the summary judgment must be

denied. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20 (Tex. 1963).

Likewise, the summary judgment must be denied when the affidavits or

35 other evidence are contradictory, Tesoro Petroleum Corp. v. Coastal

Refining & Marketing, Inc., 754 S.W.2d 764, 767 (Tex. App.--Houston [1st

Dist.] 1988, no writ), render the movant's evidence ambiguous, Ellert v.

Lutz, 930 S.W.2d 152, 155 (Tex. App.--Dallas 1996, no writ), or present

questions concerning credibility. Ballis v. Urban National Bank, 770

S.W.2d 590, 592 (Tex. App.--Houston [14th Dist.] 1989, no writ). In

making this showing, the non movant may rely on the summary judgment

evidence presented by the movant. M.D. Anderson Hospital and Tumor

Institute v. Willrich, supra. Any significant fact issue precludes the entry

of a summary judgment. Roberts v. Geo Source Drilling Services, Inc., 757

S.W.2d 48, 51 (Tex. App.--Houston [1st Dist.] 1988, no writ).19

In this regard, the presentation of direct evidence is not the exclusive

method of creating a fact issue; a fact issue may be created by presenting

circumstantial evidence. “The fact that evidence is circumstantial does not

render it incompetent nor destroy its probative force. Indeed, evidence of

this character may be, and often is, as strong as direct and positive

evidence.” Brazos River Conservations & Reclamation Dist. v. Harmon, 178

S.W.2d 281, 292 (Tex. Civ. App.—Eastland 1944, writ ref’d). “Any ultimate

fact may be proved by circumstantial evidence”. State v. $11,014.00, 820

19Summary judgments are not determined by the weight method, i.e. whomever attaches more paper to his motion wins. 36 S.W.2d 783, 785 (Tex. 1991). Such evidence can be utilized to create a fact

issue, precluding summary judgment. See, Digby v. Texas Bank, 943

S.W.2d 914, 923 (Tex. App.--El Paso 1997, writ denied); Pena v. Neal, Inc.,

901 S.W.2d 663, 671 (Tex. App.--San Antonio 1995, writ denied); Motel

Enterprises, Inc. v. Nobani, 784 S.W.2d 545 (Tex. App.--Houston [1st Dist.]

1990, no writ).

{2} BUILDER CREATED FACT ISSUE BY DISPUTING CONTRACTUAL TERMS

As previously noted, in order to prevail on a motion for summary

judgment, the plaintiff must prove the existence of the contract. As part of

this burden, the movant must also prove the terms of the contract.

Deverian v. Aviall of Texas, Inc., 1991 WL 218799 at 4 (Tex. App.--Dallas

1991, no writ); United Parcel Service v. Helen of Troy Corp., 536 S.W.2d

415, 417 (Tex. Civ. App.--El Paso 1976, no writ). Concomitantly, if the non-

movant presents evidence of a dispute in the terms of the contract, then he

has created a fact issue, precluding summary judgment. See, Ward v.

Crow, 476 S.W.2d 77, 80 (Tex. Civ. App.--El Paso 1972, no writ).

According to Home Owner, the contract was created by acceptance of

her house plans by the HOA. Home Owner claims Grupo Calqueza's plans

were approved (and thus created the terms). However, Builder directly

contradicts this version of the facts. Instead, it presented evidence that the

37 De La Vega house plans (with the lack of offset) were approved by the HOA.

Cl.R. 1210.20 Thus, the terms of the contract were no offset. This creates a

fact issue, precluding summary judgment. Hall v. Harris County Water

Control & Improvement Dist., 683 S.W.2d 863, 867 (Tex. App.--Houston

[14th Dist.] 1984, no writ).

Furthermore, Builder cast doubt on Home Owner's and her HOA's

assumptions. Both Home Owner and her HOA claimed that the setoff on

the west side was established in the formation of the subdivision. But

Builder actually examined the relevant documents. First, the plat for the

Falling Waters subdivision did not contain a setoff on the west side. Cl.R.

1205-06, 1210. Second, the survey made of Home Owner's property before

building commenced did not contain a setoff on the west side. Cl.R. 1204.

Third, the HOA's foundational documents did require a setoff on the west

side. Cl.R. 1209.21 Thus, if these documents created the contract, then the

terms of the contract are disputed.

The location of a setoff on the east side (as opposed to the west) is

confirmed by circumstantial evidence. On the east side of Home Owner's

lot is an alley way. Cl.R. 1204. Given the relatively small size of the

20Such evidence also renders HOA's affidavit ambiguous; at no point does it ever expressly state which plans were approved by HOA. 21Such documents were also ambiguous regarding the location of the zero set off. Cl.R.

1215. 38 subdivision's lots, Cl.R. 1208, 1211, common sense dictates that any

dwelling be away from the alley. The reasonable conclusion (especially in

light of the zero setoff), and the one drawn by Builder is that the edifice on

Home Owner's lot would contain a party wall. Cl.R. 1210.

Finally, Builder has created a question about causation. Under the

HOA's plans, Home Owner, not Builder, was responsible for the submitting

acceptable plans. Home Owner presented the De La Vega plans, which did

not contain the setoff. Builder merely constructs homes; it does not design

them. Builder complied with the plans provided to it. Cl.R. 1211. As a

result, Home Owner herself is responsible for any wrong location in the

setoff.

[E] Recovery Under Texas Residential Liability Act

The Texas Legislature initially enacted the Residential Construction

Liability Act because the Deceptive Trade Practices Act was being “used as a

sword to litigate against builders.” Jackson, Unlicensed to Drill: Proposed

Renovations to the Texas Residential Construction Commission Act, 36 ST.

MARY'S L.J. 753, 754 (2005). The statute's intent was to “provide an

‘appropriate balance’ between the residential contractor and owner, with

respect to the resolution of construction disputes.” Id. at 761.

What the RCLA does not do is create a cause of action or derivative

39 liability. Tex. Prop. Code §27.005. Instead, the RCLA superimposes

modifications on existing causes of action in the construction context.

Gentry v. Squires Construction, Inc., 188 S.W.3d 396, 404 (Tex. App.--

Dallas 2006 no pet.). It changes the established standard for causation.

Tex. Prop. Code §27.003; Tex. Prop. Code §27.006. It limits the damages

which would be otherwise available. Tex. Prop. Code §27.004(g). And it

provides applicable defenses for both contractors and subcontractors. Tex.

Prop. Code §27.003. Consequently, this statute does not provide Home

Owner another avenue for relief; instead, she is still required to prove her

breach of contract claim.

But this is where Home Owner's RCLA claims fail. As clearly

demonstrated herein, Home Owner cannot prevail on her breach of

contract claims. She failed to present competent summary judgment

evidence. She failed to prove the existence of the disputed term. And the

terms remains disputed. As a result, the trial court erred in granting any

relief under the RCLA.

CONCLUSION AND PRAYER

The Texas Supreme Court held that summary judgments should not

be utilized for clearing dockets: "The summary judgment is to be applied

with caution and will not be granted where there is doubt as to the facts.

40 Although the prompt disposal of judicial business is greatly desired, it is not

the main objective." In Re Price's Estate, 375 S.W.2d 900, 904 (Tex. 1964).

In the case at bar, it is obvious that the trial court used summary judgment

used as a docket clearing device, because her summary judgment evidence

was incompetent (despite its massacre of thousands of trees) and because

Home Owner's evidence was disputed, both directly and circumstantially.

But because the trial court's decision is not entitled to any deference, it

must be reversed.

WHEREFORE, PREMISES CONSIDERED, ROCASS L.L.C. d/b/a

ROCASS HOMES, Appellant in the above styled and numbered cause,

respectfully prays that the summary judgment of the trial court be reversed,

and for all other and further relief, either at law or in equity, to which

Appellant shows itself justly entitled.

Respectfully submitted,

__/s/_Thomas G. Rayfield_____ Thomas G. Rayfield State Bar No. 16615825 1300 North Tenth Street, Suite 300 McAllen, Texas 78501-4392 Telephone (956) 994-1155 Telecopier (956) 994-1148

CERTIFICATE OF COMPLIANCE I, Thomas G. Rayfield, do hereby certify that the above and fore-

41 going was generated using Word 2007 utilizing 14 point and contains 9146

words.

BY:__/s/_Thomas G. Rayfield_____ Thomas G. Rayfield

CERTIFICATE OF SERVICE I, Thomas G. Rayfield, do hereby certify that I have caused to be

delivered a true and correct copy of the above and foregoing document to

Appellant's Counsel of Record, Armando Guerra, by regular mail, hand

delivery and/or electronic delivery on this the 17th day of October, 2015.

BY_/s/_ Thomas G. Rayfield__ Thomas G. Rayfield