Nilesh Bavishi and Dipti Bavishi v. Sterling Air Conditioning, Inc. Dba Airtron, Inc. AKA Airtron Heating & Air Conditioning

Opinion issued August 11, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00610-CV

———————————

Nilesh Bavishi and Dipti Bavishi , Appellants

V.

Sterling Air

Conditioning, Inc. d/b/a Airtron, Inc., a/k/a Airtron Heating & Air

Conditioning ,

Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 09-DCV-174880

MEMORANDUM OPINION

Sterling

Air Conditioning, Inc. d/b/a Airtron,

Inc., a/k/a Airtron Heating & Air

Conditioning (“Airtron”) sued Nilesh and Dipti Bavishi (“Bavishi”) on a sworn

account and asserted alternative claims for breach of contract and quantum

meruit arising out of Bavishi’s failure to pay Airtron for air conditioning

work that Airtron had completed at Bavishi’s new house. The trial court rendered summary judgment in

favor of Airtron. In four issues,

Bavishi contends that the trial court erroneously rendered summary judgment because

(1) Airtron failed to allege that all lawful offsets had been applied to the account;

(2) Airtron did not conclusively establish that it fully performed under the

contract and that Bavishi breached the contract; (3) Airtron failed to prove

that Bavishi accepted Airtron’s services; and (4) Airtron’s summary

judgment affidavit contained conclusory statements.

We

affirm.

Background

Bavishi

began construction on a new house in 2006. In June 2008, Transtar Builders, Inc.

(“Transtar”), the general contractor on the project, terminated its

relationship with G.K. Mechanical, Inc., the original air conditioning

subcontractor. Transtar hired Airtron as

air conditioning subcontractor to complete the project in place of G.K.

Mechanical, and it executed a contract with Airtron for a “total turnkey price”

of $42,954. Transtar’s contract with

Airtron listed nine

distinct items under “Scope of Work Included,” including: installing condensers, programmable

thermostats, a zone control board, fresh-air intake controllers, and supply and

return grills; connecting the vent hoods; adding supply drops to a second floor

bathroom; modifying “return air on the first floor plus additional return on

[second] floor landing”; obtaining a permit from the City of Sugar Land; and

supplying “miscellaneous material and labor.”

Under the “Notes” section, the contract provided that: “Condition of existing coils, furnaces, and

ductwork is unknown and is not warranted through Airtron. Any repairs or additional services to

complete start-up will be extra.” The

contract similarly stated that the “condition of zone dampers is unknown,

replacement of existing equipment (if needed) is extra.” This contract did not include a provision

specifically obligating Airtron to correct any problems created by previous

subcontractors.

In March 2009, Bavishi terminated his

relationship with Transtar and himself assumed the role of general contractor. At the time Bavishi fired Transtar, Airtron

had not yet completed its work for Transtar, although it had installed some materials

at Bavishi’s house, including grills, registers, and fan covers.

On

May 12, 2009, Bavishi and Airtron executed a contract governing Airtron’s

remaining work on the project. This

contract provided that Airtron would install thermostats and a total of seven

condensers for a price of $32,215. The

contract also included the following statement:

This Contract has been

modified to show what remaining work is to be completed, as per the original

agreement. Based upon previous

conversations, the remaining [w]ork left is 1) Completing the trim, both

outside and inside the house. 2) Setting

the condensers on Builder supplied pad.

3) Starting up systems and installing all thermostats to appropriate

locations.

As with Airtron’s contract with Transtar, Airtron’s

contract with Bavishi did not include a provision requiring Airtron either to

correct any problems with the air conditioning system created by previous

subcontractors or to complete all necessary work to make the system operational.

On June 2, 2009, Airtron issued an

invoice to Bavishi in the amount of $32,215.50 for “HVAC final — finish trim & set units.” During the course of Airtron’s work at Bavishi’s

property, Airtron employees discovered a problem in the copper line that fed

coolant to the condensers. The copper

line had been installed by another company, but, at Bavishi’s request, Airtron

repaired a leak in the line. Airtron

invoiced Bavishi an additional $150 for parts and labor.

Beginning

in June 2009, after Airtron had installed the contracted-for condensers and

thermostats, Bavishi and Airtron disputed both the quality of Airtron’s work

and the scope of its responsibilities under the contract. Specifically, the parties disputed whether the

contract obligated Airtron to correct all problems with the air conditioning

system that were created by the subcontractors who had worked on the project

prior to Airtron. After the parties were

unable to achieve a resolution of this dispute, Airtron ceased working on the

project on July 1, 2009.

Bavishi

subsequently refused to pay Airtron in accordance with the two invoices Airtron

had issued. Airtron then sued Bavishi on

a sworn account and asserted claims for breach of contract and quantum

meruit. Airtron attached the affidavit

of William Nylan, Airtron’s Operations Manager, to its original petition in

support of the sworn account. Nylan

averred that he had personal knowledge of the contents of the affidavit and control

over the records of the account. He stated:

According to [Airtron’s]

books and records, pursuant to request by [Bavishi], [Airtron] sold, delivered,

and installed for [Bavishi] certain labor, materials and supplies on account to

one or more real properties, on which account a systematic record has been

kept. A true and correct copy of the

invoice(s) for said materials, labor, and supplies so

provided . . . is (are) attached hereto as Exhibit “A-1”

and incorporated herein for all purposes.

According to [Airtron’s]

books and records, this claim is just and true and the amount due and unpaid by

[Bavishi] to [Airtron] after allowing for all just and lawful offsets,

payments, and credits is [$32,365.]

Airtron attached the contract and the

two invoices to Bavishi to its original petition. Airtron also alleged that it had completed its

obligations under the May 2009 contract and that Bavishi had breached the

contract by failing to pay the invoiced amounts. In its quantum meruit claim, Airtron asserted

that it was entitled to the reasonable value of materials and supplies that it

had sold and delivered to Bavishi while Transtar was still the general

contractor on the project and before Airtron entered into its own contract with

Bavishi.

Bavishi

answered by filing an unsworn general denial.

Airtron

moved for summary judgment on each of its own claims. As summary judgment evidence, Airtron

attached an affidavit by William Nylan; its contract with Bavishi; the two

unpaid invoices to Bavishi; an unpaid invoice for $2,972.80 to Transtar for

work performed by Airtron for Transtar prior to Bavishi’s assuming the role of

general contractor; and Bavishi’s interrogatory answers, in which Bavishi

acknowledged the contract he had made with Airtron and admitted that he owed

Airtron $21,742.

Nylan averred that at the time

Bavishi fired Transtar as the general contractor Transtar owed Airtron

$2,972.80 for materials, including “grills, registers, and fan covers,” that

Airtron had installed at Bavishi’s property pursuant to its contract with

Transtar. Airtron argued that it was

entitled to recover those funds under quantum meruit. Nylan further averred that Airtron “sold,

delivered, and installed for [Bavishi] certain labor, materials and supplies on

account” and that Airtron “provided and/or installed said air conditioning

labor, materials and supplies pursuant to the terms of [the May 2009 contract

between Airtron and Bavishi].” According

to Nylan, Airtron’s records indicated that, “after allowing for all just and

lawful offsets, payments, and credits,” Bavishi owed it $32,365 on its suit on

a sworn account or, alternatively, for breach of contract.

In

his interrogatory answers, Bavishi claimed that he was entitled to $10,473 in

offsets because, after Airtron left the project, he had to hire additional air

conditioning subcontractors to “complete the work” and make the air

conditioning system operational. [1] Airtron argued that Bavishi was not entitled

to any of the claimed offsets because the subsequent subcontractors corrected

deficiencies in the work of subcontractors that Transtar had hired prior to

contracting with Airtron. These

subcontractors did not correct deficiencies in the work that Airtron had

completed pursuant to its contract with Bavishi. Because Airtron was not contractually

obligated under either its original contract with Transtar or its subsequent contract

with Bavishi to correct the work of the prior subcontractors, it argued that

Bavishi was not entitled to any offsets.

In

response to Airtron’s summary judgment motion, Bavishi argued that the summary

judgment evidence reflected that “[Airtron] did not finish the job, that

[Bavishi] had to expend considerable sums after [Airtron] left [the job] to

correct and complete the work [Airtron] had contracted to do, and that [Bavishi

was] entitled to significant offsets to the amount of [Airtron’s] claim.” Bavishi argued that Airtron’s original

contract with Transtar was for a “turnkey job,” that Airtron’s contract with

Bavishi noted that “the work in the original contract was incomplete and that

the new contract was a modification of the previous one,” and that the

“turnkey” contract between Airtron and Bavishi required Airtron “to recognize

the previous problems with the [air conditioning] system and make it

operational,” and this was not done. Bavishi

argued that he was entitled to over $10,000 in offsets expended “to correct the

inadequacies of Airtron’s work.”

As

summary judgment evidence, Bavishi attached his own affidavit, Airtron’s

contract with Transtar, and a series of e-mails between Bavishi and Nylan discussing

the problems with the air conditioning system.

Bavishi averred that Airtron’s contract with Transtar was “for a

‘turnkey price’ for Airtron to complete any necessary work so that the air

conditioning would be in working order.”

He further stated that the May 2009 contract covered not just the

installation of condensers and thermostats, but also covered the completion of “any

air conditioning work to make the system operational.” Bavishi averred:

Airtron did not do the work

it contracted to do. From June 14

through July 1, 2009, I sent Airtron a series of lengthy emails explaining the

problems with the system and the corrective action that was necessary. These are attached as Exhibit C. As the email of June 30 at 7:24 P.M.

indicates, Airtron had the responsibility to correct any problems with the air

conditioning system that existed when Airtron started the job, regardless of

how or by whom those problems arose.

Airtron did not take any corrective action and left the job about July 1

(without obtaining a final inspection as required for an occupancy permit from

the City of Sugar Land). Airtron has performed

no work since.

Bavishi then averred that he had spent over $10,000

since Airtron left the project to make the air conditioning system operational,

and “[a]ll of [those] expenses were for work that Airtron had contracted to do

but did not.”

Without

specifying the basis for its ruling, the trial court rendered summary judgment

in favor of Airtron and awarded it a total of $35,337.80 in damages, $4,496.12

in pre-judgment interest, $6,250 in attorney’s fees, and $12,250 in conditional

post-trial and appellate attorney’s fees.

After the trial court denied Bavishi’s motion for new trial, this appeal

followed.

Standard of Review

We

review de novo the trial court’s ruling on a summary judgment motion. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). To prevail on a traditional

summary judgment motion, the movant must establish that no genuine issues of

material fact exist and that it is entitled to judgment as a matter of

law. Tex.

R. Civ. P. 166a(c); Little v. Tex.

Dep’t of Criminal Justice , 148 S.W.3d 374, 381 (Tex. 2004). A party moving for summary judgment on its

own claims must conclusively prove all essential elements of the claim. See

Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999); Tex. R. Civ. P. 166a(a) (“A party

seeking to recover upon a claim . . . may, at any time

after the adverse party has appeared or answered, move with or without

supporting affidavits for a summary judgment in his favor upon all or any part

thereof.”). A matter is conclusively

established if reasonable people could not differ as to the conclusion to be

drawn from the evidence. See City of Keller v. Wilson , 168 S.W.3d

802, 816 (Tex. 2005).

If

the movant meets its burden, the burden then shifts to the nonmovant to raise a

genuine issue of material fact precluding summary judgment. See

Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact

if reasonable and fair-minded jurors could differ in their conclusions in light

of all of the summary judgment evidence.

See Goodyear Tire & Rubber Co.

v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). To determine if the nonmovant has raised a

fact issue, we review the evidence in the light most favorable to the

nonmovant, crediting favorable evidence if reasonable jurors could do so, and

disregarding contrary evidence unless reasonable jurors could not. See

Fielding , 289 S.W.3d at 848 (citing City

of Keller , 168 S.W.3d at 827 ). We

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. See Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002)

(citing Sci. Spectrum, Inc. v. Martinez ,

941 S.W.2d 910, 911 (Tex. 1997)).

When,

as here, the trial court’s summary judgment does not state the basis for the

court’s decision, we must uphold the judgment if any of the theories advanced

in the motion are meritorious. Provident Life & Accident Ins. Co. v. Knott ,

128 S.W.3d 211, 216 (Tex. 2003).

Suit on a Sworn Account

In

his first issue, Bavishi contends that the trial court erroneously rendered

summary judgment in favor of Airtron on its sworn account because Airtron

failed to allege that all lawful offsets, payments, and credits had been

applied.

Texas

Rule of Civil Procedure 185 applies to “any claim for a liquidated money

demand . . . [for] labor done or labor or materials

furnished . . . .” Tex. R. Civ. P. 185. This rule is not a rule of substantive law;

rather, “it is a rule of procedure regarding the evidence necessary to

establish a prima facie right of recovery” on certain types of contractual

account claims. See Rizk v. Fin. Guardian Ins. Agency, Inc. , 584 S.W.2d 860, 862

(Tex. 1979); Smith v. CDI Rental

Equipment, Ltd. , 310 S.W.3d 559, 566 (Tex. App.—Tyler 2010, no pet.); Panditi v. Apostle , 180 S.W.3d 924, 926

(Tex. App.—Dallas 2006, no pet.).

Rule

185 provides that “when an action is founded on an open account on which a

systematic record has been kept and is supported by an affidavit, the account

shall be taken as prima facie evidence of the claim, unless the party resisting

the claim files a written denial under oath.”

Panditi , 180 S.W.3d at 926 ; see Tex.

R. Civ. P. 185. To establish a

prima facie case in a suit on a sworn account, the plaintiff must strictly

comply with the requirements of Rule 185.

Nguyen v. Short, How, Frels &

Heitz, P.C. , 108 S.W.3d 558, 562 (Tex. App.—Dallas 2003, pet. denied). The plaintiff’s petition “must contain a

systematic itemized statement of the services rendered, reveal offsets made to

the account, and be supported by an affidavit stating the claim is within the

affiant’s knowledge and that it is ‘just and true.’” Id. ;

see also Panditi , 180 S.W.3d at 926

(stating requirements for sworn account petition and accompanying

affidavit). If there is a deficiency in

the plaintiff’s sworn account, the account will not constitute prima facie

evidence of the debt. Panditi , 180 S.W.3d at 927 ; Nguyen , 108 S.W.3d at 562 .

The

defendant resisting the sworn account must also strictly comply with the

requirements of Rule 185, “or he will not be permitted to dispute the receipt

of the services or the correctness of the charges.” See

Panditi , 180 S.W.3d at 927 ; see also

Vance v. Holloway , 689 S.W.2d 403, 404 (Tex. 1985) (per curiam) (“Holloway

failed to file a sworn denial and he has, therefore, waived his right to

dispute the amount and ownership of the account.”). Rule 185 requires the defendant to “comply

with the rules of pleading” and “timely file a written denial, under oath,” or

else the defendant “shall not be permitted to deny the claim, or any item

therein.” Tex. R. Civ. P. 185; Panditi ,

180 S.W.3d at 927 (noting that Rule 185 requires sworn denial to be written and

verified by affidavit). To place the

plaintiff’s sworn account claim at issue, the defendant must file a “special

verified denial of the account” in accordance with Texas Rule of Civil

Procedure 93. See Huddleston v. Case Power & Equip. Co. , 748 S.W.2d 102, 103

(Tex. App.—Dallas 1988, no writ); see

also Tex. R. Civ. P. 93(10) (“ A pleading setting up

any of the following matters, unless the truth of such matters appear of

record, shall be verified by affidavit[:]

A denial of an account which is the foundation of the plaintiff’s

action . . . .”).

This sworn denial must be included in the defendant’s answer; a sworn

denial in a response to a summary judgment motion does not satisfy Rule

185. See

Cooper v. Scott Irrigation Constr., Inc. , 838 S.W.2d 743, 746 (Tex. App.—El

Paso 1992, no writ); see also Rush v.

Montgomery Ward , 757 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1988,

writ denied) (“Only in the affidavit accompanying his response to Ward’s motion

for summary judgment did appellant dispute the correctness and fairness of the

charges, and demand additional proof of his liability. Because the combined effect of Texas Rule of

Civil Procedure 185 and Texas Rule of Civil Procedure 93(10) required appellant

to raise those claims in his answer, we hold that appellant raised his

assertions too late.”).

If

the defendant fails to file a verified denial to the sworn account, the sworn

account is received as prima facie evidence of the debt, and the plaintiff, as

summary judgment movant, is entitled to summary judgment on the pleadings. Nguyen ,

108 S.W.3d at 562 ; see Livingston Ford

Mercury, Inc. v. Haley , 997 S.W.2d 425, 430 (Tex. App.—Beaumont 1999, no

pet.) (holding that when plaintiff files proper sworn account petition but

defendant does not comply with Rule 185, the petition will support summary

judgment and “additional proof of the accuracy of the account is unnecessary”). “In other words, a defendant’s noncompliance

with rule 185 conclusively establishes that there is no defense to the suit on

the sworn account.” Nguyen , 108 S.W.3d at 562 ; see

Whiteside v. Ford Motor Credit Corp. , 220 S.W.3d 191, 194 (Tex. App.—Dallas

2007, no pet.) (“When the defendant fails to file a sworn denial and the trial

court enters summary judgment on a sworn account, appellate review is limited

because the defendant will not be allowed to dispute the plaintiff’s

claim.”). If, however, the plaintiff’s

suit on a sworn account was not properly pleaded pursuant to Rule 185, the defendant

is not required to file a sworn denial. Panditi , 180 S.W.3d at 927 . In this circumstance, a general denial is

sufficient to controvert the account. Tex. Dep’t of Corrs. v. Sisters of St.

Francis of St. Jude Hosp. , 753 S.W.2d 523, 524 (Tex. App.—Houston [1st

Dist.] 1988, no writ).

Here,

Bavishi contends that his general denial and sworn affidavit attached to his

response to Airtron’s summary judgment motion, which alleges that several

offsets should be applied to the account, raises a fact issue because Airtron

did not allege that all offsets, payments, and credits had been applied to the

account, and, therefore, Airtron did not properly plead a sworn account in

compliance with Rule 185. The record,

however, reflects otherwise.

In

its original petition, Airtron alleged that it “sold and delivered to [Bavishi]

certain heating and air conditioning labor, materials and supplies specified in

the Account.” Airtron attached its

contract with Bavishi and two unpaid invoices totaling $32,365 to its original

petition. Airtron also attached the

affidavit of William Nylan. Nylan

averred that he had personal knowledge of the account and stated:

According to [Airtron’s]

books and records, pursuant to request by [Bavishi], [Airtron] sold, delivered,

and installed for [Bavishi] certain labor, materials and supplies on account to

one or more real properties, on which account a systematic record has been

kept. A true and correct copy of the

invoice(s) for said materials, labor, and supplies so provided . . . is

(are) attached hereto as Exhibit “A-1” and incorporated herein for all

purposes.

According to [Airtron’s]

books and records, this claim is just and true and the amount due and unpaid by

[Bavishi] to [Airtron] after allowing for

all just and lawful offsets, payments, and credits is [$32,365].

(Emphasis added.)

Airtron’s petition, affidavit, and

supporting invoices contain all of the information required by Rule 185. See

Tex. R. Civ. P. 185; Nguyen , 108 S.W.3d at 562 (stating

requirements for sworn account petition and supporting affidavit). Thus, to dispute Airtron’s implied assertion

that Bavishi was not entitled to any offsets, Bavishi was required to file a

verified denial of the account in compliance with Rule 185 and Rule

93(10). See Panditi , 180 S.W.3d at 927 .

It is undisputed that Bavishi filed only an unsworn general denial and

did not argue that he was entitled to offsets until his response to Airtron’s

summary judgment motion. Because Bavishi

did not file a verified denial, “he was precluded from denying ‘the claim or

any item therein.’” See id. (quoting Tex. R.

Civ. P. 185); Solano v. Syndicated

Office Sys. , 225 S.W.3d 64, 67 (Tex. App.—El Paso 2005) (“The failure to

follow Rule 185 precludes the defendant from raising a fact issue and from

disputing the receipt of the items or services rendered or the correctness of

the claim. The defendant may not deny

the claim or raise an issue that he did not owe the account or that it was wrongfully

charged to him.”).

We

conclude that because Airtron properly stated that all lawful offsets had been

applied to Bavishi’s account and Bavishi did not file a verified denial

challenging this assertion, Airtron’s petition and supporting affidavit

constituted prima facie evidence of the sworn account which Bavishi waived the

right to dispute, entitling Airtron to summary judgment on its pleadings. We therefore hold that the trial court

correctly rendered summary judgment in favor of Airtron on its sworn account.

We

overrule Bavishi’s first issue. [2]

Quantum Meruit

In

his third issue, Bavishi contends that the trial court erroneously rendered

summary judgment in favor of Airtron on its quantum meruit claim because it

failed to establish that Bavishi accepted Airtron’s services.

Quantum

meruit is an equitable theory of recovery based on an implied agreement to pay

for benefits received and knowingly accepted.

Heldenfels Bros., Inc. v. City of

Corpus Christi , 832 S.W.2d 39, 41 (Tex. 1992); Tricon Tool & Supply, Inc. v. Thumann , 226 S.W.3d 494, 502

(Tex. App.—Houston [1st Dist.] 2006, pet. denied). A party can recover in quantum meruit when

non-payment for the services rendered would result in an unjust enrichment to

the party benefited by the work. Speck v. First Evangelical Lutheran Church

of Houston , 235 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). To recover in quantum meruit, the

plaintiff must establish that: (1)

valuable services and/or materials were furnished, (2) to the party sought to

be charged, (3) which were accepted by the party sought to be charged, and (4)

under such circumstances as reasonably notified the recipient that the

plaintiff, in performing, expected to be paid by the recipient. Heldenfels

Bros. , 832 S.W.2d at 41 (citing Vortt

Exploration Co. v. Chevron U.S.A., Inc. , 787 S.W.2d 942, 944 (Tex. 1990)). The plaintiff must also demonstrate that its

efforts “were undertaken for the

person sought to be charged; it is not enough to merely show that [its] efforts

benefitted the defendant.” Hester v. Friedkin Cos. , 132 S.W.3d 100,

106 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (emphasis in original).

Bavishi

contends that he raised a fact issue regarding whether he accepted Airtron’s

services, and he points to his summary judgment affidavit and the attached

series of e-mails between Nylan and himself discussing the problems with the

air conditioning system as evidence that Airtron did not satisfy its

responsibility to correct all problems that arose involving the air

conditioning system. Airtron argues that

its quantum meruit claim was limited to recovery for the reasonable value of materials

that it provided to Bavishi under its agreement with Transtar before Airtron

contracted directly with Bavishi, including the installation of “grills, registers,

and fan covers,” and that by not objecting to the installation of these

particular materials or claiming that Airtron’s installation of these materials

was faulty Bavishi accepted the materials.

We agree with Airtron.

Airtron’s

contract with Transtar obligated it to install, among other things, “steel

supply grills and aluminum fixed bar return grills.” In his summary judgment affidavit, Nylan

averred that Airtron installed materials, “including grills, registers, and fan

covers,” pursuant to its contract with Transtar and that Transtar did not pay

Airtron for these materials. After

Bavishi fired Transtar and took over the project as general contractor, he

signed a new contract with Airtron, which specified the remaining work to be

completed and materials to be installed.

This contract did not mention items such as grills, registers, and fan

covers. Furthermore, although Bavishi

subsequently informed Airtron of the numerous alleged problems with the air

conditioning system, he never complained that the materials installed under the

Transtar contract, and specified in Airtron’s quantum meruit claim, were

unsatisfactory. There is also no

evidence that any of the subsequent air conditioning subcontractors hired by

Bavishi after Airtron left the project were required to fix problems concerning

these specific materials.

We

conclude that, under these facts, the summary judgment evidence establishes

that Bavishi accepted the materials installed pursuant to Airtron’s contract

with Transtar and at issue in Airtron’s quantum meruit claim. See

also RC Mgmt., Inc. v. Tex. Waste Sys., Inc. , No. 04-02-00488-CV, 2003 WL

1712535 , at *4 (Tex. App.—San Antonio Apr. 2, 2003, no pet.) (mem. op.) (“[T]he

evidence reflects that RCM did not refuse delivery of the larger containers or

contact TWS to, at the very least, complain of the larger containers.”). We therefore hold that the trial court

correctly rendered summary judgment in favor of Airtron on its quantum meruit

claim.

We

overrule Bavishi’s third issue.

Conclusory Statements in Summary Judgment Affidavit

Finally,

in his fourth issue, Bavishi contends that the trial court erroneously rendered

summary judgment based on Nylan’s summary judgment affidavit, which contained

legally and factually conclusory statements. [3]

Affidavits

containing conclusory statements unsupported by facts are not competent summary

judgment evidence. Prime Prods., Inc. v. S.S.I. Plastics, Inc. , 97 S.W.3d 631, 637

(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting Aldridge v. De Los Santos , 878 S.W.2d 288, 296 (Tex. App.—Corpus

Christi 1994, writ dism’d w.o.j.)); Rizkallah

v. Conner , 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no

pet.) (“A conclusory statement is one that does not provide the underlying

facts to support the conclusion.”). An

affidavit must be factual — mere

conclusions of the affiant lack probative value. Prime

Prods. , 97 S.W.3d at 637 ; see also

Ryland Group, Inc. v. Hood , 924 S.W.2d 120, 122 (Tex. 1996) (“[Conclusory

affidavits are neither] credible nor susceptible to being readily

controverted.”). A conclusory statement

“may set forth an unsupported legal conclusion or an unsupported factual

conclusion.” Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist. , 127 S.W.3d 235,

242 (Tex. App.—Waco 2003, no pet.).

Bavishi

contends that Nylan’s statement in his affidavit that “[a]t the time that

Transtar was fired from the job, Transtar owed [Airtron] moneys for work done

by [Airtron] for Transtar at said residence” is conclusory because it is “not

supported by any facts” and “Airtron attached no summary judgment proof.” We disagree.

In

addition to the above statement, Nylan’s summary judgment affidavit also

included the following paragraph:

Additionally, pursuant to

[Airtron’s] books and records, Transtar owes [Airtron] for work at the subject

residence, which included grills, registers, and fan covers, a copy of which

unpaid invoice is attached hereto as Exhibit “A-4,” and incorporated herein for

all purposes. According to [Airtron’s]

books and records, this claim is just and true and the amount due and unpaid by

Transtar to [Airtron] after allowing for all just and lawful offsets, payments,

and credits is [$2,972.80].

Airtron also attached the invoice issued to

Transtar, dated May 14, 2009, which reflects an unpaid balance of $2,972.80, to

Nylan’s affidavit.

We

conclude that, contrary to Bavishi’s assertion, Airtron presented factual

support for the objected-to statement demonstrating the amount that Transtar

owed to Airtron. See Rivera v. White , 234 S.W.3d 802, 808 (Tex. App.—Texarkana 2007,

no pet.) (“Although all of White’s statements concerning the vehicle damage and

medical care are to some degree conclusory, each furnishes some factual

information that could have been rebutted.”); Choctaw Props. , 127 S.W.3d at 242 (“Thus, his ‘conclusory’

statements that he spoke with an agent of the Defendants have factual support

in the affidavit.”). Nylan’s statement

is supported by facts and, thus, is not conclusory. We therefore hold that the trial court

properly considered this evidence when rendering summary judgment in favor of

Airtron.

We

overrule Bavishi’s fourth issue.

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Matthews. [4]

[1]

Bavishi argued that he was

entitled to the claimed offsets solely in his interrogatory answers and in his

summary judgment response. He did not

raise this argument in a verified denial of Airtron’s sworn account.

[2]

Because we hold that the trial

court properly rendered summary judgment on Airtron’s sworn account, we do not

address Bavishi’s second issue — whether

the trial court erred in rendering summary judgment on Airtron’s breach of

contract claim . In his fourth issue, Bavishi contends that Nylan’s

summary judgment affidavit included conclusory statements supporting Airtron’s

breach of contract and quantum meruit claims.

Although we address whether Nylan’s statements relating to Airtron’s

quantum meruit claim are conclusory, we do not address whether his statements

relating to Airtron’s breach of contract claim are conclusory.

[3]

On appeal, Airtron contends that

Bavishi’s objections to Nylan’s affidavit constitute objections to the form of

the affidavit, and, thus, Bavishi failed to preserve this complaint for

appellate review because he did not object to Nylan’s affidavit in the trial

court. An assertion that a summary

judgment affidavit is conclusory is an objection relating to a substantive

defect, and, thus, an appellant may raise this argument for the first time on

appeal and without obtaining a ruling from the trial court. McMahan

v. Greenwood , 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied); see Brown v. Brown , 145

S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied). Because Bavishi objects to the substance of

Nylan’s affidavit, he may raise this contention for the first time on appeal.

[4]

The Honorable Sylvia Matthews,

Judge of the 281st District Court of Harris County, Texas, participating by

assignment. See Tex. Gov’t Code Ann.

§ 74.003(h) (Vernon 2005).