Opinion issued July 11, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-01035-CV ——————————— SILVER OAK CUSTOM HOMES, LLC, APPELLANT V. BRENT TREDWAY AND JENA TREDWAY, APPELLEES
On Appeal from the 151st Judicial District Court Harris County, Texas Trial Court Cause No. 2009-29065A
MEMORANDUM OPINION
This lawsuit arises out of a home remodeling project. Silver Oak Custom
Homes, LLC (“Silver Oak”) appeals the trial court summary judgment in favor of
Brent and Jena Tredway. When the project went awry, Silver Oak sued the
Tredways under multiple liability theories. Silver Oak contends that it presented
evidence that creates a fact issue regarding each of its claims and the Tredways’ affidavits consist of conclusory statements insufficient to support summary
judgment. We hold that the trial court erred in granting summary judgment as to
Silver Oak’s breach of contract claim, suit on sworn account, and quantum meruit
claim, but it properly granted summary judgment against Silver Oak on its claims
for fraud, defamation, business disparagement, and tortious interference with
contractual relations. We therefore affirm in part, reverse in part, and remand for
further proceedings.
Background
The Tredways hired Silver Oak to build an addition on their home. Over the
course of the project, the Tredways paid Silver Oak a total of $365,000 in five
installments. When Silver Oak requested another payment, the Treadways refused
to pay. Silver Oak ceased work on the project and sued the Tredways for breach of
contract, quantum meruit, suit on sworn account, statutory and common law fraud,
defamation, business disparagement, and tortious interference with contractual
relations. The Tredways counterclaimed for breach of contract and fraud. The trial
court granted the Tredways’ subsequent traditional motion for partial summary
judgment on Silver Oak’s claims. The trial court severed the partial summary
judgment, and Silver Oak filed a notice of appeal. The Tredways’ counterclaims
for fraud and breach of contract remain pending in a separate cause of action in the
2 trial court. See Tredway v. Silver Oak Custom Homes, LLC, No. 2009-29065,
(151st Dist. Ct., Harris County, Tex.).
Discussion
I. Appellate Jurisdiction
A partial summary judgment becomes final and appealable upon the
severing of the parties and claims disposed of by the partial summary judgment
into a separate cause. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.
1995) (per curiam). Thus, a notice of appeal must be filed within thirty days after
severance. Id.; TEX. R. APP. PROC. 26.1.
The Tredways initially contend that we lack jurisdiction over this appeal,
because Silver Oak did not timely perfect it. The Tredways contend that the trial
court dismissed all claims and parties with the partial summary judgment order.1
But neither the Tredways’ motion for summary judgment nor the trial court’s order
granting partial summary judgment referred to the Tredways’ then-pending
counterclaims. The order granting partial summary judgment does not purport to
dismiss all parties and all claims.
The trial court did not grant the Tredways’ motion to sever Silver Oak’s
claims from their counterclaims until October 19, 2012. Silver Oak filed its notice
of appeal on November 7, 2012, well within the thirty-day period after severance.
1 The Tredways reference a July 2011 order dismissing all causes and all parties. But after a diligent search of the appellate record and the district clerk’s records, we find no such order. 3 See Farmer, 907 S.W.2d at 496; TEX. R. APP. PROC. 26.1. Accordingly, Silver Oak
timely perfected its appeal.
II. Summary Judgment Proof
Silver Oak contends that the Tredways failed to produce valid summary
judgment evidence to negate its claims, because their affidavits are based on
information and belief rather than personal knowledge. An objection that an affiant
lacks personal knowledge of facts recited in the affidavit or that it lacks a recitation
that an affiant has personal knowledge of the facts therein is an objection to the
affidavit’s form. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Dodge v.
Durdin, 187 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2005, no pet.). To
preserve an objection to the form of an affidavit, a party must timely object in
writing to the defect and obtain a ruling from the trial court sustaining or striking
the evidence. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343
n. 7 (Tex. 1993); Dodge, 187 S.W.3d at 532.
Silver Oak objected in writing to the trial court that both of the Tredways’
affidavits stated that they were based on information and belief rather than
personal knowledge. But it did so more than a year after the trial court granted the
partial summary judgment. We hold that the objection was untimely to preserve
this challenge on appeal. See McConnell, 858 S.W.2d at 343 n. 7; Dodge, 187
S.W.3d at 532.
4 III. Summary Judgment Analysis
Silver Oak seeks reversal of the summary judgment, contending that it raised
a fact issue on each of its claims and that the Tredways’ proof is insufficient to
support summary judgment.
A. Standard of Review
We review de novo the trial court’s ruling on a motion for summary
judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). In a traditional motion for summary judgment, like the one
filed in this case, the movant must establish that no genuine issue of material fact
exists and the movant is thus entitled to judgment as a matter of law. TEX. R. CIV.
P. 166a(c). When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003).
Traditional summary judgment is proper only if the movant establishes that
there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the
specific grounds relied upon for summary judgment. Id. A genuine issue of
material fact exists if the nonmovant produces more than a scintilla of probative
5 evidence regarding the challenged element. See Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). A defendant moving for traditional summary
judgment must conclusively negate at least one essential element of each of the
plaintiff’s causes of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911
(Tex. 1997).
Conclusory statements in an affidavit unsupported by facts are insufficient to
support or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464,
466 (Tex. 1997). A conclusory statement is one that does not provide the
underlying facts to support the conclusion and cannot be readily controverted.
Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also Earle v.
Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (holding that witness’s affidavit is
conclusory if it fails to explain basis of witness’s statements to link his conclusions
to facts).
B. Silver Oak’s Summary Judgment Evidence
The Tredways respond that Silver Oak wrongly relied on its sworn pleadings
to oppose the summary judgment motion because pleadings are not valid summary
judgment evidence. We agree. Pleadings, even if sworn, are generally not proper
summary judgment evidence. Hidalgo v. Sur. Sav. and Loan Ass’n, 462 S.W.2d
540, 544–45 (Tex. 1971); Inwood Forest Comty. Improvement Ass’n v. R.J.S. Dev.
6 Co., Inc., 630 S.W.2d 751, 754 (Tex. App.—Houston [1st Dist.] 1982, no writ). An
affidavit that adopts the pleadings in the case is also insufficient to support or
oppose a motion for summary judgment because it cannot transform the pleading
into evidence. Langley v. Arnold D. Kamen & Co., 455 S.W.2d 820, 824 (Tex. Civ.
App.—Texarkana 1970, writ ref’d n.r.e.).
Silver Oak relies on its sworn pleadings, a deposition excerpt, and its agent’s
affidavit verifying its suit on sworn account as summary judgment evidence that
raises fact issues about each of its claims. An affidavit required to plead a suit on
sworn account is proper summary judgment evidence. See Seisdata, Inc. v.
Compagnie Generale de Geophysique, 598 S.W.2d 690, 692 (Tex. Civ. App.—
Houston [14th Dist.] 1980, writ ref’d n.r.e.). Deposition excerpts are also proper
summary judgment evidence. McConathy v. McConathy, 869 S.W.2d 341, 341
(Tex. 1994) (per curiam). Accordingly, in reviewing whether Silver Oak raises a
fact issue, we consider the deposition excerpt and Silver Oak’s affidavit on its suit
on sworn account. See Seisdata, Inc., 598 S.W.2d at 692; McConathy, 869 S.W.2d
at 342.
C. Silver Oak’s Claims
Silver Oak contends that it raised a fact issue as to each of the Tredways’
claims, and that the Tredways’ affidavits contain of conclusory statements that are
7 insufficient to support summary judgment. We review the summary judgment
evidence on each of Silver Oak’s claims in turn.
1. Breach of Contract
The essential elements of a breach of contract claim are (1) the existence of
a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages sustained as a result of
the breach. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). In their summary judgment motion, the
Tredways maintain that Silver Oak’s breach of contract claim fails because Silver
Oak failed to satisfy its obligation to complete construction in a workmanlike
manner. As summary judgment evidence to support this contention, the Tredways
averred that “[t]he work provided by Silver Oak Custom Homes, LLC was
unacceptable. Silver Oak Custom Homes, LLC failed to complete the work in a
good and workmanlike manner.”
The Tredways provide no particular facts on which they base this
conclusion. See Anderson, 808 S.W.2d at 55; CA Partners v. Spears, 274 S.W.3d
51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). They do not explain
any particular portions of the project completed or the flaws present in the
completed work to explain the basis of their conclusion that the project was not
completed in a workmanlike manner. See Earle, 998 S.W.2d at 890. Because the
8 affidavit lacks sufficient factual specificity about the unsatisfactory work of Silver
Oak, the affidavits, with nothing more, fail to negate Silver Oak’s breach of
contract claim. See Wadewitz, 951 S.W.2d at 466; Martinez, 941 S.W.2d at 911.
Accordingly, the trial court erred in granting summary judgment against Silver
Oak on its breach of contract claim.
2. Suit on Sworn Account
Texas Rule of Civil Procedure 185 provides a procedure for collecting on an
open account that applies to any contract “for personal service rendered, or labor
done or labor or materials furnished, on which a systematic record has been kept.”
TEX. R. CIV. PROC. 185. The claim must be “. . . supported by . . . affidavit . . . to
the effect that such claim is within the knowledge of (the) affiant, just and true, that
it is due, and that all just and lawful offsets, payments and credits have been
allowed.” TEX. R. CIV. PROC. 185.
Silver Oak attached to its petition and summary judgment response an
affidavit verifying its suit on sworn account. See TEX. R. CIV. PROC. 185. In that
affidavit, Silver Oak averred that an open account existed and that it remained
unpaid. It attached records detailing the cost of materials and labor that it had
provided. The Tredways answered with a sworn denial. The parties raised a fact
issue regarding Silver Oak’s claim for suit on sworn account, and the Tredways did
not negate an element of Silver Oak’s claim. See Ridgway, 135 S.W.3d at 600.
9 Accordingly, the trial court erred in granting summary judgment on Silver Oak’s
suit on sworn account.
3. Quantum Meruit
The Tredways argued in their motion for summary judgment that Silver
Oak’s quantum meruit claim fails because quantum meruit and breach of contract
are mutually exclusive claims, and thus, a party may plead only one. A party
generally may not recover for quantum meruit if an express contract covers the
same services or materials. Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988).
However, a party may plead the two mutually exclusive theories in the alternative
and submit both theories to a jury. TEX. R. CIV. PROC. 48; Univ. State Bank v.
Gifford–Hill Concrete Corp., 431 S.W.2d 561, 574 (Tex. Civ. App.—Fort Worth
1968, writ ref’d n.r.e) (“Although the two theories of recovery are inconsistent,
they may be pled alternatively under the provisions of Rules 47 and 48, Texas
Rules of Civil Procedure”). To recover under quantum meruit, a claimant must
prove that (1) valuable services were rendered or materials furnished; (2) for the
person sought to be charged; (3) which services and materials were accepted by the
person sought to be charged, used and enjoyed by him; (4) under such
circumstances as reasonably notified the person sought to be charged that the
plaintiff in performing such services was expecting to be paid by the person sought
10 to be charged. Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942,
944 (Tex. 1990).
Silver Oak pleaded its claims for breach of contract and quantum meruit in
the alternative. Although Silver Oak ultimately could not recover for quantum
meruit upon a finding that a valid contract existed, Silver Oak may plead and
proceed on both theories. See Univ. State Bank, 431 S.W.2d at 574. As with Silver
Oak’s breach-of-contract claim, the Tredways’ conclusory statements regarding
Silver Oak’s unworkmanlike performance are insufficient to negate an element of
Silver Oak’s quantum meruit claim. See Martinez, 941 S.W.2d at 911.
Accordingly, the Tredways failed to satisfy their summary judgment burden to
defeat Silver Oak’s quantum meruit claim, and the trial court erred in granting
summary judgment as to Silver Oak’s quantum meruit claim.
4. Fraud
A fraud claim requires proof that: (1) a material misrepresentation was
made; (2) the representation was false; (3) when the representation was made, the
speaker knew it was false or made it recklessly without any knowledge of the truth
and as a positive assertion; (4) the speaker made the representation with the intent
that the other party should act upon it; (5) the party acted in reliance on the
representation; and (6) the party thereby suffered injury. Aquaplex, Inc. v. Rancho
La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009).
11 The Tredways averred that they had never made any false representations or
promises to any Silver Oak employee. This is an affirmative statement of fact that
may be readily controverted by any facts regarding specific misrepresentations by
the Tredways to Silver Oak. See Anderson, 808 S.W.2d at 55. Because Silver Oak
failed to controvert this statement with valid summary judgment evidence, the
Tredways negated the first element of Silver Oak’s fraud claims. The trial court
thus properly granted summary judgment on Silver Oak’s fraud claims.
5. Defamation and Business Disparagement
To recover for defamation, a private plaintiff must prove that the defendant
(1) published a statement, (2) that was defamatory to the plaintiff, (3) while acting
negligently as to the truth of the statement. WFAA–TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998). Similarly, to prevail on a business disparagement
claim, a plaintiff must establish that (1) the defendant published false and
disparaging information about it, (2) with malice, (3) without privilege, (4) that
resulted in special damages to the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co., 749
S.W.2d 762, 766 (Tex. 1987).
The Tredways averred that they did not publish any statements about Silver
Oak or its employees. This, too, is an affirmative statement of fact, and it may be
readily controverted with examples of statements the Tredways made to third
parties regarding Silver Oak. See Anderson, 808 S.W.2d at 55. Because Silver Oak
12 failed to present summary judgment evidence to controvert the first element in
both its defamation and business disparagement claims, it failed to raise a fact
issue regarding those claims. The trial court properly granted summary judgment
on these claims.
6. Tortious Interference with Prospective and Existing Contracts
To prevail on a claim for tortious interference with existing contracts, a
plaintiff must show that: (1) contracts existed that were subject to the defendants’
interference; (2) the defendants willfully and intentionally committed acts of
interference; (3) the defendants’ acts proximately caused damages; and (4) actual
damages or loss occurred. Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926
(Tex. 1993); Rodarte v. Investeco Grp., LLC, 299 S.W.3d 400, 411 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). Similarly, to recover on a cause of action for
tortious interference with a prospective business relationship, a plaintiff must show
that: (1) there was a reasonable probability he would have entered into a business
relationship; (2) the defendant acted maliciously by intentionally preventing the
relationship from occurring with the purpose of harming the plaintiff; (3) the
defendant was not privileged or justified in his actions; and (4) actual harm or
damage occurred to the plaintiff as a result. Winston v. Am. Med. Int’l, Inc., 930
S.W.2d 945, 953 (Tex. App.—Houston [1st Dist.] 1996, no writ).
13 The Tredways averred that they were not aware of any contracts of Silver
Oak, thus negating the requirement that the defendants willfully and intentionally
committed acts of interference. Reyna, 865 S.W.2d at 926; Winston, 930 S.W.2d at
953. Silver Oak presented no summary judgment evidence to controvert the
Tredways’ statement. In the deposition excerpt attached to its summary judgment
response, Silver Oak’s president described a settlement between it and another
subcontractor who was involved in the construction on the Tredways’ home. The
deposition indirectly references the Tredways but does not address whether they
were aware of Silver Oak’s contract with the subcontractor or how they might have
affected Silver Oak’s contractual relations with the subcontractor. Accordingly,
Silver Oak failed to raise a fact issue, and the trial court properly granted summary
judgment in favor of the Tredways on Silver Oak’s claims for tortious interference
with contractual relations.
14 Conclusion
We hold that fact issues exist to resolve Silver Oak’s claims for breach of
contract, suit on sworn account, and quantum meruit, but not Silver Oak’s
remaining claims. We therefore affirm the trial court’s summary judgment on
Silver Oak’s claims for fraud, defamation, business disparagement, and tortious
interference with contractual relations, but we reverse its judgment on Silver Oak’s
claims for breach of contract, suit on sworn account, and quantum meruit, and
remand those claims for further proceedings.
Jane Bland Justice
Panel consists of Justices Keyes, Higley, and, Bland.