a witness's affidavit is conclusory if it fails to explain the basis of the witness' statements to link his conclusions to the facts
How later courts described this case
- a witness's affidavit is conclusory if it fails to explain the basis of the witness' statements to link his conclusions to the facts
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00034-CV
5080535
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/29/2015 12:08:27 PM
JEFFREY D. KYLE
CLERK
NO. 03- 1s-00034-cv
FILED IN
3rd COURT OF APPEALS
IN run Truno Counr op Apppals AUSTIN, TEXAS
AusttN, TBxRs 4/29/2015 12:08:27 PM
JEFFREY D. KYLE
Clerk
JUAN O. LOPEZ dlblaJ.L. CONSTRUCTION CO.,
Appellant
V
DAVE H. BUCHHOLZ and MARY A. BUCHHOLZ,
Appellees
On Appeal from the 274th Judicial District Court of Comal County, Texas
Cause No. C2014-0259C
Bnrnr on Appnr,LANT
Appnr,r,¡.Nr RneuESTs On¡l AncuvrnNr
Richard C. McSwain
Texas Bar No. 24002588
Adam J. Richie
Texas Bar No. 24064164
Ryan T. Kinder
Texas Bar No. 24065560
Jamie Cohen
Texas Bar No. 24054524
Coars lRosn
1020 Northeast Loop 410, Suite 800
San Antonio, Texas 7 8209
(2 1 0) 224-7 098 Telephone
(21 0) 2 12- 5 69 8 F acsimi le
ATTORNEYS FOR APPELLANT
485 I -8480-4643.v1
IDENTITY OF PARTIES AND COUNSEL
In compliance with Rule 38.1(a), Appellant provides the following list of the
parties to the trial court judgment and order at issue, and the names and addresses
of trial and appellate counsel for the parties:
Appellants: Juan O. Lopez dlblaJ.L. Construction Co.
Represented by: Coars I Rosn
Richard C. McSwain
Adam J. Richie
Ryan T. Kinder
Jaime Cohen
1020 Northeast Loop 410, Suite 800
San Antonio, Texas 78209
(2 I 0) 224 -7 09 8 Telephone
(21 0) 212-5698 Facsimile
Appellees: Dave H. Buchholz
Mary A. Buchholz
Represented by: VBTHaN Law Fnv, PC
Charles M.R. Vethan
Joseph L. Lanza
J. Seth Grove
8700 Crownhill Blvd, Suite 302
San Antonio, Texas 78217
Telephone: (210) 824-2220
Facsimile: (210) 826-2223
1
485 I -8480-4643.v1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
INDEX OF AUTHORITIES IV
APPENDIX X
STATEMENT OF TI{E CASE I
DESIGNATION OF RECORD REFERENCES 4
STATEMENT REGARDING ORAL ARGUMENT 5
ISSUES PRESENTED 6
STATEMENT OF FACTS 7
SUMMARY OF' THE ARGTIMENT 72
ARGIJMENT AND AUTHORITIES 14
I The Trial Court Erred In Sustaining the Buchholzes' Objections to
the Affidavits of Lopez and Preiss.............. 14
A. Standard of Review T4
B. The affidavits, even if selÊserving, were competent summary
judgment evidence 15
C. The Lopez affidavit was admissible as evidence that Dave H.
Buchholz made a $5,000 payment. T7
D. The Lopez afftdavit is not conclusory 20
E. The Preiss affidavit was not conclusory 26
F. The trial court's error in the exclusion of the Lopez and Preiss
affidavits probably caused the rendition of an improper
summary judgment award. 28
il The Trial Court Erred in Granting Summary Judgment 28
A. Standard of Review 29
B. The trial court erred in granting summary judgment on Lopez's
breach of contract claim because Lopez presented evidence of
l1
485 I -8480-4643.v1
an agreement with the Bucchholzes for the driveway, sidewalk,
and flagstone work raising genuine issues of material fact........... 3l
C. Lopez presented evidence showing that he provided valuable
services for the Buchholzes, that the Buchholzes accepted these
services without payment, such that the trial court erred in
granting summary judgment on Lopez's quantum meruit claim... 39
D. The evidence presents a genuine issue of fact as to whether
Lopez has a constitutional lien, and the trial court erred in
granting summary judgment on Lopez's lien foreclosure claim
and the Buchholzes' declaratory judgment claim 43
E. Alternatively, even if this Court affirms the trial court's ruling
on the objections to Lopez's summary judgment evidence, the
summary judgment record still contains conflicting evidence
raising genuine issues of material fact as to Lopez's claims......... 45
III. The trial court erred in awarding attorneys' fees on this affirmative
claim for relief because the Buchholzes failed to meet their burden
of showing how their declaratory judgment claim involved an issue
not already at issue inLopez's original claims 47
CONCLUSION 49
PRAYER 49
CERTIFICATE OF COMPLIANCE 51
CERTIFICATE OF SERVICE 52
111
485 I -8480-4643.v I
INDEX OF AUTHORITIES
Cases
I00l McKínney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d
20 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) 2l
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd.,249 S.W.3d 380 n.32
(Tex.2008). 2t
Bastida v. Aznqran, 444 S.\M.3d 98 (Tex. App.-Dallas 2014, no pet.) 2I
Behr Southerland Construction, Inc. v. H.W. Wahlers,Izc., No. 04-00-00679-CY,
2001WL 729292 (Tex. App.-San Antonio June 29,2001) 24
BHP Petroleum Co. v, Millard,800 S.W.2d 838 (Tex. 1990) 47
Boswell v. Farm & Home Savings Ass'n,894 S.W.2d76l (Tex. App.-Fort Worth
1994, writ denied) 22
Bradþrd Partners II, L.P. v. Føhning, 231 S.\M.3d 513 (Tex. App.-Dallas 2007,
no pet.) t4
Breitenfeld v. SAS Institute, Inc., 147 S.W.3d 672 (Tex. App.-Dallas 2004, no
pet.) 48
Brooks v, Excellence Mortgage, Ltd., No. 04-13-00106-CY,2075 WL 1523067, at
*8 (Tex. App.-San Antonio Apr. 1 ,2015) I6
Campbell v. Nw. Nat'l Lífe Ins. Co., 573 S.W.2d 496 (Tex. 1978) 39
1V
485 I -8480-4643.v I
Casso v. Brand,776 S.W.2d 551 (Tex. 1989) 24
Cessna Aírcraft Co. v. Aircraft Network, L,L.C.,273 S.W.3d 455 (Tex. App.-
Dallas 2006,pet. denied) 32
City of Ingleside v. Stewart, 554 S.W.2d 939 (Tex. Civ. App.-Corpus Christi
1977, writ refd n.r.e.) 39
Cíty of Keller v. Wilson,l68 S.W.3d 802 (Tex. 2005) 31
Coats v. Ruiz,198 S.W.3d 863 (Tex. App.-Dallas 2006, no pet.) l8
Cockrell v. Republic Mortgage Ins. Co., 8I7 S.W.2d 106 (Tex. App.-Dallas
1991, no writ) I9
CVN Group, Inc. v. Delgado,95 S.W.3d234 (Tex.2002) 44
Da-Col Paint WS. Co. v. Amerícan Indem. Co., 5 I 7 S.W. 2d 27 0 (Tex. 197 4) ..... 44
De La Morena v. Ignenieria E Maquinaria De Guadalupe, 5.A., 56 S.W.3d 652
(Tex. App.-Waco 2001, no pet.) .... 16
Delí/oody v. Rippley, g5l S.W.2d 935 (Tex. App.-Fort Worth 1997, writ dism'd)
.... 16
Downer v. Aquamarine Operators, Inc.,70I S.W.2d 238 (Tex. 1985) 15
Earle v. Ratlffi 998 S.W.2d 882 (Tex. 1999) 2l
Fieldtech Avionics & Instruments, Inc. v. ComponentControl.com, Inc., 262
S.W.3d 813 (Tex. App.-Fort Worth 2008, no pet I6
FM Props. Operating Co. v. Cíty of Austin,22 S.W.3d 868 (Tex. 2000) 3l
V
485 I -8480-4643.v I
Gee v. Liberty Mut. Fire Ins. Co.,765 S.W.2d 394 (Tex. 1989) 15
Gerstacker v. Blum Consulting Eners, [nc.,884 S.W.2d 845 (Tex. App.-Dallas
1994, writ denied) 37
Haase v. Glazner,62 S.W.3d 795 (Tex.2001) 36
HECI Exploration Co. v. Clajon Gas Co., 843 S.W.2d 622 (Tex. App.-Austin
1992, writ denied) 47
Heldenfels Bros. v. City of Corpus Christi,832 S.V/.2d39 (Tex. 1992) 40
Heritage Lrf" r. Heritage Grp. Holding,751 S.\M.2d 229 (Tex.App.-Dallas 1988,
writ denied) 47
Horan v. Frank,5l Tex. 401 (1879) 44
In re J.P.B., 180 S.\M.3d 570 (Tex. 2005) t4
In re Kellogg Brown & Root, [nc.,766 S.W.3d 732 (Tex. 2005) 39
Jackman v. Jackman, 533 S.W.2d 361 (Tex. Civ. App.-San Antonio 1975, no
writ) t9
Johnston v. Kruse,261 S.V/.3d 895 (Tex. App.-Dallas 2008, no pet.). 24,40
Kalmus v. Oliver,390 S.W.3d 586 (Tex. App.-Dallas2012, no pet.) 37
Krishnan v. Lqw ffices of Preston Henrichson, P.C.,83 S.W.3d 295 (Tex. App.-
Corpus Christi 2002, pet. denied) 45
Landers v. State Farm Lloyds,257 S.W.3d 740 (Tex. App.-Houston [st dist.]
2008, no pet.) 48
VI
485 I -8480-4643.v I
Lennar Corp. v. Great Am. Ins. Co.,200 S.W.3d 651 (Tex. App.-Houston ll4th
Dist.l 2006, no pet.) 31
McCraw v. Maris,828 S.IV.2d756 (Tex. 1992) 15
McMahan v. Greenwood, 108 S.W.3d 467 (Tex. App.-Houston [14th Dist.] 2003,
pet. denied) ...... 3 1
Melody Home AIfg. Co. v. Barnes,T4l S.W.2d 349 (Tex. 1987) 23
Miller v. Riatq Cadilla Co.,5l7 S.W.2d 773 (Tex. 1974) 37
Moore v. K Mart Corp.,98l S.\M.2d 266 (Tex.App.-San Antonio 1998, pet
denied) 30
Niday v. Niday,643 S,W,zd919 (Tex. 1982) þer curiam) .....37
Owens v. Ousey,24l S.\M.3d 124 (Tex. App.-Austin 2007, pet. denied) 47
PGP Gas Products, Inc. v. Reserve Equip., Inc., 667 S.W.2d 604 (Tex. App.-
Austin 1984, writ refd n.r.e.) 32
Powell v. Stover, 165 S.W.3 d 322 (Tex. 2005) 15
Provident Ltfe & Accident Ins. Co. v. Knott, 128 S.V/.3 d2II (Tex. 2003)........... 30
Renteria v. Trevino, Tg S.W.3d 240 (Tex. App.-Houston [4th Dist.] 2002, no
pet.) 32,38
Resídential Dynamics, LLC v. Loveless, 186 S.\M.3d I92 (Tex. App.-Fort Worth
2006, no pet.) 27,33,40,41
Ryland Group v. Hood,924 S.W.zd 120 (Tex. 1996) 21
v1l
485 I -8480-4643.v I
Stør-Telegram, Inc. v. Doe,9l5 S.W.2d 471 (Tex. 1995) 48
Thomas v. Thomas, 902 S.W.2d 621 (Tex. App.-Austin 1995, writ denied).47,48
Triland Investment Group. v. Tiseo Paving Co.,748 S.W.2d 282 (Tex. App.-
Dallas 1988, no writ) 22
Vortt Exploration Co. v. Chevron USA, (nc.,787 S.W.2d 942 (Tex. 1990) ....39,40
Walker v. Harrís,924 S.\M.zd375 (Tex. 1996) 3t
Young v. Ward,917 S.W.2d 506 (Tex. App.-Waco 1996, no writ) 37
Statutes
RBsrRrBvENr(SECoND)oFCoNrnacrs $ 131 cmt. c (1981) 36
Tnx. Bus. & Covttr¿. ConB $ 26.01(a) 36
TBx. Bus. & Cow. Corn $ 26.01(bX6) 37
Tsx. CoNsr. art. XVI, $ 37 43 44
TBx. Pnop. ConB $ 53.001 43
Other Authorities
BLRcr<'s Law DrcuoNeRy 308 (8th ed. 2004) 2T
Rules
v111
485 I -8480-4643.v I
TBx. R. App. P. 38.1(e) 5
Tpx. R. App. P.39.1(c) 5
Tpx. R. App. P. 39.1(d) 5
TBx. R. App. P.44.1(a)(1) 15
TBx. R. Ctv. P. 166a(c) 15,30
TBx. R. Cry. P. 166a(i) 30
Tex. R. Evn. 1002 l8
TBx. R. Evn. 801(e)(2)(A) 27
IX
485 I -8480-4643.v I
APPENDIX
Tab
1) Affidavit of Juan O.Lopez (C.R. 189-190).
2) Invoices for unpaid work (C.R. 191).
3) Affidavit of Scott Preiss (C.R. 192-193).
4) Order Granting Defendants Dave H. Buchholz and Mary A. Buchholz's
Motion for Summary Judgment dated December 72,2074 (C.R. 216-217).
5) Final Judgment dated January 14,2015 (C.R. 240-241).
X
485 I -8480-4643.v I
STATEMENT OF THE CASE
Nature of the Case: Appellant Juan O. Lopez dlbla J.L. Construction Co
("Lopez") brought suit against Appellees Dave H. Buchholz and Mary A.
Buchholz (the "Buchholzes") for payment in the amount of $27,584.80 for the
construction of a driveway, sidewalk, and flagstone walkway at the Buchholzes'
home. (C.R. l-I2). Lopez asserted claims for suit on a sworn account, breach of
oral contract, quantum meruit, and foreclosure of constitutional lien, and sought
the recovery of attorneys' fees. Id. The Buchholzes filed a counterclaim, seeking a
declaratory judgment that Lopez was not entitled to a constitutional lien and
recovery of the attorneys' fees they incurred in prosecuting that claim. (C.R. 40*
41). The Buchholzes also filed third-party claims against the general contractor,
Scott Preiss (ooPreiss"), and another subcontractor for breach of contract and
declaratory judgment, respectively. (C.R. 3941).
Course of Proceedings and Disposition: On October 17, 2014, the
Buchholzes moved on traditional and no-evidence grounds for summary judgment
on all of Lopez's claims on the basis that (1) there was no agreement between the
parties, (2) the work Lopez performed was done pursuant to the Buchholzes'
contract with the Preiss, the general contractor, and not directly for the Buchholzes,
and (3) there was no evidence supporting one or more elements of each of Lopez's
claims. (C.R. 105-166). Lopez filed a Response on November 5, 2014, attaching
I
485 I -8480-4643.v I
his own affidavit and that of Preiss, showing that the work for which Lopez sought
payment was extra work outside of his duties as a subcontractor to Preiss and was
performed directly for the Buchholzes. (C.R. I78-I93). The Buchholzes objected
to portions of these affidavits on the basis that some of the statements were
conclusory and selÊserving. (C.R. 197-200). The Buchholzes specifically objected
that the Lopez affidavit made references to a check was not produced in response
to a request for production, and was not the "best evidence." (C.R. 197). OraI
hearing on the summary judgment motion was held on November 12, 2014. (2
R.R. 4:2-12:8).
On December 12, 2014, the trial court sustained all of the Buchholzes'
objections to Lopez's summary judgment evidence and granted the Buchholzes'
motion for summary judgment. (APP. 4; C.R. 216-217). The trial court's order
ooJuan
also entered a declaratory judgment that O. Lopez is not entitled to a
constitutional mechanics and materialman ,S lien pursuant to the Texas
Constitution, Article 16, Section 37" and awarded the Buchholzes attorneys' fees
in the amount of $20,853.84, plus costs and interest.Id.
Lopez filed a motion for rehearing and reconsideration of the summary
judgment and the sustaining of the Buchholzes' objections to the affrdavits of
Lopez and Preiss. (C.R. 218-221). The trial court denied this motion on January
14, 2015. (C.R. 237). The trial court then severed all claims from and against
2
485 I -8480-4643.v I
Lopez (C.R. 242143), and entered a final judgment against Lopez mirroring the
December 12,2014 summary judgment order. (APP. 5; C.R. 240-2.41).
Lopez filed his notice of appeal of the order granting summary judgment and
sustaining the objections to summary judgment evidence on January 12, 2015.
(C.R. 229130).Lopez filed his amended notice of appeal on February 1I,2015.
(c.R. 2s0-2s1)
J
485 I -8480-4643.v I
DESIGNATION OF ORD REF'ERENCES
The record in this appeal consists of the clerk's record filed on March 30,
2015 and the reporter's record filed on February 27,2015. This appellate brief uses
the following conventions in citing the record and appendix:
Clerk's Record
C.R. [page]
Reporter's Record:
[volume] R.R. fpage]:[ine]
Appendix
APP. [tab number]
4
485 I -8480-4643.v1
STATEMENT REGARDING ORAL ARGUMENT
Oral argument has been requested for the following reasons:
1. Oral argument would give the Court a more complete understanding
of the facts presented on this appeal. See Tnx. R. App. P. 39.1(c).
2. Oral argument would allow the Court to better analyze the legal issues
presented. See TBx. R. App. P. 39.1(c).
3. Oral argument would signifìcantly aid the Court in deciding this case.
See Tnx. R. App. P. 38.1(e), Tnx. R. App. P. 39.1(d).
5
485 l-8480-4643.v1
ISSUES PRESENTED
l. Did the trial court abuse its discretion in sustaining the Buchholzes' objections
to Lopez's summary judgment evidence?
2. Did the trial court err in granting summary judgment on Lopez's suit on a
sworn account, breach of contract, quantum meruit, and constitutional lien
claims where Lopez presented affidavits and evidence that the Buchholzes
requested him to construct a driveway, sidewalk and flagstone at their home,
but failed to pay him for such work?
3. Alternatively, notwithstanding the fact the trial court sustained Buchholzes'
objections to the affìdavits of Lopez and Preiss, did Lopez nevertheless present
sufficient evidence in support of his claims such that the trial court erred in
granting summary judgment?
4. Did the trial court improperly award the Buchholzes attorneys' fees for their
declaratory judgment counterclaim when the declaratory judgment involved
issues already raised by Lopez in his claims and Texas law precludes the
recovery of attorneys' fees on such mirror-image counterclaims for declaratory
judgment?
6
485 l -8480-4643.v I
STATEMENT OF FACTS
A. The Buchholzes failed to pay Lopez for the drivewayo sidewalk and
flagstone work that was performed directly for the Buchholzes and was
not part of the original subcontracting work on the Buchhholzeso home.
The Buchholzes hired Scott Preiss ("Preiss") to build the Buchholzes' home
at 840 Haven Point Loop, New Braunfels, Texas, and the parties entered into a
contract for this construction on November 30, 2012 ("Original Contract"). (C.R.
35); (C.R. 108); (C.R. 127-131). Preiss in turn hired Lopez as a subcontractor on
the project to construct the slab for the Buchholzes' home. (C.R. 36); (C.R. 108);
(C.R. 132); (C.R. 138). Lopez invoiced Preiss for the slab work on February 16,
2013. (C.R. 132). Preiss then took a draw on the Buchholzes' construction loan to
pay Lopezfor the slab work. (C.R. 137-140). Preiss paid Lopez on March 1, 2013,
for this slab work. (C.R. 149).
After the slab was completed, Lopez performed framing as well as stone and
stucco work on the Buchholzes' home, also as a subcontractor through Preiss.
(C.R. 136). Lopez invoiced Preiss for this work by May 28,2013.1d. Preiss paid
Lopez for this work with a check on April 15,2013, and two more checks on May
31, 20t3. (C.R. 15 1-156). The April 15 check noted that it was for framing labor.
(C.R. 151-152). The May 31 checks noted that they were for "rock/stucco." (C.R.
1s3-1s6).
7
485 l-8480-4643.v I
By July l, 2013, approximately eighty-four percent (84%) of the home was
completed. (C.R. 38). It was after most of the home was completed and months
after Lopez had finished and been paid for his work as a subcontractor of Preiss,
that Dave H. Buchholz directly requested Lopez to construct a drivewãV, sidewalk
and some flagstone work at the Buchholzes' home. (APP. 1 and 2; C.R. 189-191);
(APP. 3; C.R. 192-193). The Original Contract between the Buchholzes and Preiss
for the construction of the home did not include the installation of a driveway,
sidewalk, or flagstone work in the scope of work. (APP. 3; C.R. 192-193); (C.R.
127-131). The driveway, sidewalk and flagstone work were additional work the
Buchholzes hired Lopez directly to perform. (APP. l-3; C.R. 189-193). This
additional work was not requested through Preiss, and Preiss did not agree to pay
Lopez for this work. (APP. 3; C.R. 192-193). There was no agreement between
Preiss and Lopezfor this work. 1d.
Lopez constructed the driveway and sidewalk and performed flagstone work
for the Buchholzes in accordance with the instructions received from Dave H.
Buchholz. (APP. 1; C.R. 190). Lopez invoiced the Buchholzes for the amounts
owed for this work. (APP. I and 2; C.R. 189-l9l). Lopez's invoices for this
additional work reflected that it was performed for "840 Haven Point Loop"-the
Buchholzes' home. (C.R. 162); (APP. 2; C.R. 191). The first invoice was undated
and the second invoice was dated October 7 , 2013. Id. The first invoice was for
8
485 I -8480-4643.v I
"Flagstone in the porch and steps, cover with flagstone bench2.07 x 9.00." Id. The
total amount of the first invoice was $11,388.00. Id.The second invoice was for
"Driveway 6178' x. 3.00" and "seventeen Steps (75.00 each), steel pipe, remove
steel pipe to adjacent land..." Id. The total amount for the work identified in the
second invoice was $21,196.80. Id. However, prior to issuance of the invoices,
Dave H. BuchholzpaidLopez $5,000 on August22,2013 as apartial payment for
this work. (APP. 1 and 2; C.R. 190-191). Accordingly, the second invoice reflects
a $5,000.00 credit conesponding to this payment by Mr. Buchholz, resulting in a
total balance due of $16,196.80. Id. The total amount charged for the flagstone and
driveway work on these two invoices was $27,584.80. Id. The invoices were
submitted to the Buchholzes for payment on or about October 7 , 2013. (APP. 1;
C.R. 190). The Buchholzes did not pay the amounts owed for the additional work
performed by Lopez.
B. Procedural History
Lopez sent a demand letter to the Buchholzes on January 30, 2014,
oodriveway
requesting immediate payment of the 527,584.80 still owed for the and
porch flagstone" work performed for the Bucchholzes' home. (C.R. 163). After the
Buchholzes refused to pay the amount owed, Lopez filed suit alleging claims for
suit on a sworn account, breach of the parties' oral contract for the drivewây,
9
485 I -8480-4643.v1
sidewalk and flagstone work, quantum meruit, and seeking to foreclose on his
constitutional lien. (C.R. 5-12).
The Buchholzes answered and later brought third-party claims against Preiss
and another subcontractor.r (C.R. 3248). The Buchholzes also asserted a
counterclaim against Lopez, seeking a declaratory judgment that Lopez's
constitutional lien was void.1d.
On October 17,2014, the Buchholzes filed a Traditional and No-Evidence
Motion for Summary Judgment on each of Lopez's claims. (C.R. 105-166). The
Buchholzes also filed a motion for summary judgment on their declaratory
judgment claim that Lopez's constitutional lien was void and sought attorneys'
fees. (C.R.123-124).
Lopez filed his Response on November 5, 2074,2 attaching as evidence
affidavits from Lopez and Preiss and the invoice for the drivewày, sidewalk and
flagstone work. (C.R. 178-193). The day before the oral hearing, the Buchholzes
filed objections to some of the statements in the affidavits of Lopez and Preiss
alleging that they were conclusory and self-serving, and for failure to produce the
S5,000 check from Dave H. Buchholz referenced inLopez's affidavit. (C.R. 197-
1
The Buchholzes later non-suited the claims against the other subcontractor. (C.R. 194-195).
2
The Response was filed three (3) days after undersigned counsel appeared as counsel for Lopez
following his prior counsel's withdrawal. (C.R. 17l-I77).
10
485 I -8480-4643.v I
200). Counsel argued the merits of the objections at the oral hearing before the trial
court on November 12,2014. (2 R.R. 4:2-12:8).
The trial court signed an order on December 12, 2074, sustaining the
Buchholzes' objections to Lopez's summary judgment evidence and entering a
general order granting the Buchholzes' summary judgment motion. (APP. 4; C.R.
216-217). The trial court did not specifl'the basis for the summary judgment. Id.
The trial court's order included a declaration that Lopez was not entitled to a
constitutional lien and awarded the Buchholzes attorneys' fees in the amount of
$20,853.84, plus interest. Id
11
485 I -8480-4643.v1
SUMMARY OF THE ARGUMENT
Lopez presented the trial court with affidavits by himself and Preiss
supporting his claims by showing the existence of an agreement with the
Buchholzes for the driveway, sidewalk, and flagstone work that Lopez performed
on the Buchholzes' home and for which he has not been paid. These affidavits,
along with Lopez's invoices for the work and the remainder of the summary
judgment record, present a genuine issue of material fact as to whether an express
or implied agreement existed between Lopez and the Buchholzes such that
summary judgment could not be granted as to Lopez's breach of contract, quantum
meruit, and/or constitutional lien claims. However, the trial court erroneously
sustained the Buchholzes' objections to Lopez's and Preiss' affidavits, excluding
much of their testimony from the summary judgment record. This error led to
rendition of an improper summary judgment. The trial court's error in excluding
this evidence and in granting summary judgment should therefore be reversed.
Alternatively, the trial court erred in granting summary judgment despite
sustaining the Buchholzes' objections to the Lopez and Preiss affidavits. The
statements of Lopezthat were not objected to, Lopez's invoices, and the evidence
presented by the Buchholzes, create a fact issue on their own as to whether an
implied agreement existed between the parties that would support Lopez's
quantum meruit claim
t2
485 I -8480-4643.v1
Finally, regardless of any other issue on appeal, the trial court's award of
attorneys' fees to the Buchholzes on their declaratory judgment claim must be
reversed. This counterclaim for a declaratory judgment is a mirror-image of
Lopez's constitutional lien claim, and the Buchholzes cannot recover their
attorneys' fees for such a claim as a matter of law.
l3
485 I -8480-4643.v1
AND AUTH RITIES
I. The Trial Court Erred In Sustaining the Buchholzes' Objections to the
Affidavits of Lopez and Preiss.
The Buchholzes objected to certain statements contained in the Lopez and
Preiss affidavits, arguing that they were selÊserving and conclusory and made
reference to documents not produced during discovery. Contrary to the
Buchholzes' objections, however, each of the statements constituted competent
summary judgment evidence. The trial court therefore abused its discretion by
sustaining all of the Buchholzes' objections and excluding the affidavit testimony
proffered by Lopez and Preiss. As is further explained in Section II below, the
testimony was sufficient to raise a fact issue on each element of Lopez's claims
and thus, its exclusion resulted in the improper rendition of summary judgment in
favor of the Buchholzes.
A. Standard of Review
A trial court's decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. In re J.P.B., 180 S.W.3d 570,575 (Tex. 2005). A
decision sustaining objections to summary judgment evidence is similarly
reviewed for an abuse of discretion. Bradþrd Partners II, L.P. v, Fahning, 237
S.\M.3d 513,521 (Tex. App.-Dallas 2007, no pet.). The test for an abuse of
discretion is whether the trial court acted without reference to any guiding rules
l4
485 l -8480-4643.v I
and principles. Downer v. Aquamarine Operators, Inc.,70l S.W.2d 238,24142
(Tex. 1985). A trial court abuses its discretion if it fails to analyze or apply the law
correctly. Powell v, Stover, 165 S.W.3 d 322,324 (Tex. 2005). To obtain reversal of
a judgment based on effor in the admission or exclusion of evidence, Lopez must
show the trial court's error probably caused the rendition of an improper judgment.
TBx. R. App. P.44.1(a)(1); McCraw v. Møris,828 S.W.2d756,758 (Tex.1992);
Gee v. Liberty Mut. Fire Ins. Co.,765 S.W.2d 394,396 (Tex. 1989).
B. The affidavits, even if self-servingo were competent summary
judgment evidence.
The Buchholzes objected to the Lopez and Preiss affidavits as "self-serving"
because the affìdavits were made by 'ointerested witnesses." (C.R. 198-200).
Pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, the authority
relied upon by the Buchholzes in support of their objections, "[a] summary
judgment may be based on uncontroverted testimonial evidence of an interested
witness...if the evidence is clear, positive and direct, otherwise credible and free
from contradictions and inconsistencies, and could have been readily
controverted." TBx. R. Ctv. P. 166a(c). As the Buchholzes correctly noted,
testimony that does not meet these requirements cannot support a summary
judgment. (C.R. 198). However, the testimony of Lopez and Preiss was not
offered to supporl a motion for summary judgment and thus, the propriety of the
15
485 l -8480-4643.v I
Lopez and Preiss affidavits was not subject to the requirements of Rule 166a(c).
De La Morena v. Ignenieria E Maquinaria De Guadølupe, 5.A., 56 S.W '3d 652,
658 (Tex. App.-Waco 2001, no pet.) (holding that Rule 166a(c) refers to the
evidence on which a summary judgment "may be based" and does not apply to a
non-movant's affidavit); Brooks v. Excellence Mortgage, Ltd., No. 04-13-00106-
cv,2075 wL 1523067, at *8 (Tex. App.-San Antonio Apr. 1 ,2015) (stating that
affidavits made by self-interested non-movant witnesses need not meet the
requirements of Rule 166a(c)).
According to established Texas law, "while testimony from an interested
witness cannot serve as a basis for granting summary judgment..., it is enough to
create afactissue that justifies denying summary judgment." Fieldtech Avionícs &
Instruments, Inc. v. ComponentControl.com, Inc., 262 S.\M.3d 813, 827 (Tex'
App.-Fort Worth 2008, no pet.); see also Dewoody v. Rippley, g5I S.\M.2d 935,
945-46 (Tex. App.-Fort Worth 7997, writ dism'd) ("Although insufficient to
establish a right to judgment as a matter of law, testimony from an interested
witness submitted as controverting evidence by a non-movant may raise a facl
issue precluding Summary judgment."). Where, as here, Lopez'osought only to
raise a fact issue and defeat summary judgment, rather than negate a fact' issue and
obtain summary judgment," the Lopez and Preiss affidavits were competent
summary judgment evidence. Fieldtech,262 S.\M.3d at 827. Accordingly, the trial
16
485 I -8480-4643.v I
court abused its discretion by sustaining the Buchholzes' "selÊserving" objections
and excluding the statements made by Lopez and Preiss from evidence on this
basis
C. The Lopez affidavit was admissible as evidence that l)ave H.
Buchholz made a $50000 PaYment.
Paragraphs 5 and 6 of the Lopez affidavit stated that Dave H. Buchholz
made a pafüa| payment of $5,000.00 for certain construction work and that the
payment "was paid directly by Dave H. Buchholz on August 22,2013, underhis
personal bank account." (APP. 1; C.R. 189-190). The Buchholzes objected to
these statements pursuant to Rule 193.6 of the Texas Rules of Civil Procedure,
which provides that when a party fails to respond or supplement his response to a
discovery request, the trial court may exclude any evidence that he was under a
duty to provide. TBx. R. Cry. P. 193.6(a). The Buccholzes argued that Lopez's
failure to produce a $5,000.00 check in response to a previous request for
production of "[a]ll documents reflecting payments from Defendant to Plaintiff,"
precluded him from introducing into evidence any testimony related to such check.
(c.R. 1e7-1e8).
The Buchholzes mischaracterizedthe statements in the Lopez afflrdavit. The
statements referred to a $5,000 payment and not a 55,000 check. (APP. 1; C.R.
139-190). Lopez timely produced an invoice for the construction work at issue,
T7
485 l-8480-4643.v1
which showed a $5,000 line item deduction from the total amount charged. (APP.
2; C.R. 191). The invoice-a document reflecting a $5,000 payment from Dave H.
Buchholz to Lopez-was responsive to the referenced request for production, and
the statements in the Lopez affidavit were offered as evidence of that $5,000
payment. (APP. 1 and 2; C.R. 189-191). The purported failure to produce a $5,000
check in response to discovery was irrelevant because Lopez did not seek to
introduce evidence of a $5,000 check. Under these circumstances, Rule 193.6,
which concerns only the admissibility of evidence that was not previously
identified, simply does not apply. The trial court therefore abused its discretion in
sustaining the Buchholzes' Rule 193.6 objection and strikingLopez's testimony
pertaining to the $5,000 payment.
Although couched as an objection under Texas Rule of Civil Procedure
193.6, the Buchholzes essentially complained that any testimony concerning the
$5,000 payment would violate the best evidence rule because the $5,000 check was
the best evidence of such payment. Under the best evidence rule, the original
writing is required to prove the contents of a document. TBx. R. Evn. 1002.
However, the rule does not apply where a parly is not attempting to prove the
contents of a document, but seeks only to establish the existence of a document.
Coats v. Ruiz, 198 S.W.3d 863, 875 (Tex. App.-Dallas 2006, no pet.) (affidavit
stating that adjuster wrote letters to inform insureds that he would be handling their
18
485 I -8480-4643.v I
claims did not violate best evidence rule because it showed that adjuster
communicated with insureds and was not offered to prove the letters' contents).
Further, Texas courts have consistently held that "[e]vidence to the effect
that a payment has been made is admissible without introduction of the check
given in payment." Coclcrell v. Republic Mortgage Ins. Co.,817 S.W.2d 106, II2
(Tex. App.-Dallas 1991, no writ) (citing Jackman v. Jaclcrnan,533 S.W.2d 361,
362 (Tex. Civ. App.-San Antonio 1975, no writ)). In Jaclvnen, a suit seeking an
upward modification of child support payments, the plaintifÊmother testified as to
the monthly expenses of "keeping" each of her four children. Jackman,53 S.W.2d
at 362. The defendant-father objected thaf her testimony should have been
excluded under the best evidence rule, arguing that the bills and cancelled checks
concerning such expenses were the best evidence of the amounts incurred for the
upkeep of the children. Id. The court rejected his contention, explaining that the
best evidence rule did not apply since the mother's testimony was not offered to
prove the contents of the bills and checks referenced therein. Id. Because the
mother o.was a participant in all of the transactions to which her testimony related,
and her testimony was not based on records or memoranda prepared by another,"
the Court held that her testimony was admissible evidence of the payments made
on behalf of her children. Id
t9
485 l-8480-4643.v1
Consistent with the foregoing case law, Lopez's statement that Dave H.
Buchholz paid $5,000 directly from his personal bank account should have been
admitted. Lopez was the recipient of the payment and his testimony was offered
solely as evidence that the payment came directly from Dave H. Buchholz, not to
prove the contents of the check constituting such payment. For this reason, too, the
trial court's exclusion of all references to the 55,000 payment in the Lopez
Affidavit was an abuse of discretion.
D. The Lopez affidavit is not conclusory.
The Buchholzes objected that the following statements in the Lopez affidavit
were conclusory, complaining that they lacked factual support, represented
Lopez's "subjective belief," were not easily controverted by the Buchholzes, or
constitute d a "legal conclusion" :
Paragraoh 4: The work for which J.L. Construction Co. seeks payment
was performed in a good and workmanlike manner at the
direct request of Dave H. Buchholz.
Paragraph 5: Dave H. Buchholz approved the work.
ParagraphT The work was performed in
accordance with the
instruction given by Dave H. Buchholz to me fl-opezf on
behalf of J.L. Construction Co.
Paragraph 8 The prices charged were the reasonable and necessary
value of the work performed.
20
485 l -8480-4643.v1
(C.R. 193-199); (APP. 1; C.R. 189-190). Contrary to the Buchholzes' objections,
these statements are not conclusory.
A conclusory statement is one o'expressing a factual inference without
stating the underlying facts on which the inference is based." Arkomq Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd.,249 S.W.3d 380, 389 n. 32 (Tex.
2003) (citing BLACr's Law DlcuoNaRy 308 (8th ed. 200Ð); I00I McKinney Ltd.
v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 27 (Tex. App.-
Houston [14th Dist.] 2005, pet. denied); Earle v. Ratlffi 998 S.W.2d 882, 890
(Tex. 1999) (a witness's affidavit is conclusory if it fails to explain the basis of the
witness' statements to link his conclusions to the facts). Conclusory statements in
affidavits are not sufficient to raise a fact issue so as to preclude summary
judgment because they are not credible or susceptible to being readily
controverted. Ryland Group v. Hood,924 S.W.zd 120,122 (Tex. 1996). However,
logical conclusions based on stated underlying facts are proper. Bastida v.
Aznaran,444 S.W.3d 98, 105 (Tex. App.-DaIlas 2014, no pet.) (distinguishing
between facts and conclusions).
Lopezaverred that the statements in his affidavit were based on the personal
knowledge he obtained in his capacity as the sole proprietor of J.L. Construction
Co., a role which required him to perform all of the company's administrative and
operations activities. (APP. 1; C.R. 189). Based on this personal knowledge,Lopez
2I
485 l -8480-4643.v I
attested that the work for which he sought payment from the Buchholzes was
performed at the direct request of Dave H. Buchholz, in accordance with the
instructions given to him by Dave H. Buchholz, and approved by Dave H.
Buchholz. Id. These statements were neither conclusions nor subjective opinions,
as the Buchholzes asserted. They were direct and unequivocal statements of fact
founded upon Lopez's personal knowledge of the work and his personal
interactions with Dave H. Buchholz. See Boswell v. Farm & Home Savings Ass'n,
894 S.W.2d 761,768 (Tex. App.-Fort Worth 1994, writ denied) ("4 person's
position or job responsibilities can peculiarly qualiff him to have personal
knowledge concerning each of the facts in the supporting affidavit.").
The Dallas Court of Appeals considered analogous statements made by a
paving company's project administrator in a summary judgment affidavit. Tríland
Investment Group. v. Tiseo Paving Co.,748 S.W.2d 282,284 (Tex. App.-Dallas
1988, no writ). The affidavit in that case described the occurrences leading to the
litigation, stating that the defendant-customer entered into a contract for paving
services, the work was completed, and5297,717.60 became due but was unpaid.
Id. The Court held that the statements were "neither conclusions, nor unilateral
subjective opinions," but rather "constitute a factual account of events which are
proper summary judgment proof ." Id.
22
485 l -8480-4643.v I
Like the statements made by the project administrator in Triland, the
statements made by Lopez also constitute a factual account of events to which he
was a party and, thus, are competent summary judgment evidence. Contrary to the
Buchholzes' unsupported argument, the fact that Lopez did not also testifu as to
the time, method, and manner of Dave H. Buchholz's request, the substance of his
instructions, or the form of his ooapproval" did not make the factual statements
contained in his affidavit conclusory and was immaterial to the admissibility of
such statements. (C.R. 199)
Lopez's statement that the work was done in a good and workmanlike
manner also was not conclusory. The Texas Supreme Court has defined "good and
workmanlike as that quality of work performed by one who has the knowledge,
training, or experience necessary for the successful practice of a trade or
occupation and performed in a manner generally considered proficient by those
capable of judging such work." Melody Home Mfg. Co. v. Barnes, 741 S.W.2d
349,354-55 (Tex. 1987). As the sole proprietor of his construction company, and
the person charged with performing all of the company's administrative and
operations activities, Lopez was capable of judging whether the work at issue was
generally proficient and as such, his statement that it was performed in a "good and
workmanlike manner" is a fact, not merely a conclusion. See Behr Southerland
Construction, Inc. v. H.W. Wahlers, Inc., No. 04-00-00679-CV, 2001 WL 729292,
23
485 I -8480-4643.v1
at *2 (Tex. App.-San Antonio June 29, 2001) (holding plaintiff-general
contractor's assertion that defendant-subcontractor did not complete the work in a
good or workmanlike way to be a fact rather than a conclusion).
Similarly,Lopez's statement that the prices charged were representative of
o'legal
the reasonable and necessary value of the work performed was not a
conclusion," as alleged by Appellees. Lay testimony like that proffered by Lopez
ooreasonable
is admissible evidence of value" and was, therefore, improperly
excluded by the trial court. See Johnston v. Kruse,26l S.\M.3d 895,902 (Tex.
App.-Dallas 2008, no pet.) (recognizing that the measure of damages for a
quantum meruit claim is the reasonable value of the work performed, which may
be established through lay testimony)
Furthermore, all of the complained-of statements in the Lopez affidavit
could have been readily controverted by the Buchholzes, particularly by Dave H.
Buchholz. As recognized by the Texas Supreme Court, the phrase'o ocould have
been readily controverted' does not simply mean that the movant's summary
judgment proof could have been easily and conveniently rebutted," but rather "that
[the] testimony at issue is of a nature which can be effectively countered by
opposing evidence." Casso v. Brand,776 S.W.2d 551, 558 (Tex. 1989)
Here, the Buchholzes specifically objected to the statement that Mr.
Buchholz'oapproved the work" on the grounds that it "is not easily controverted,"
24
485 I -8480-4643.v I
but failed to show that such statement cannot be effectively countered by opposing
evidence. Indeed, this factual statement and all of the complained-of statements are
of a nature which can be effectively countered by opposing evidence. The
Buchholzes in fact attempted to controvert Lopez's statement that Lopez
performed the work at the direct request of Dave H. Buchholz by offering
opposing testimony from Dave H. Buchholzthatthe alleged contract governing the
work was with Preiss. They admitted, moreover , that the statements in Paragraph 7
concerning Dave H. Buchholz's instructions were controverted, effectively
establishing that those statements were factual, not conclusory. (C.R. 199)
Likewise, the statements related to the good and workmanlike manner of the work
and the reasonable value charged for the same could have been rebutted with
contrary evidence that the work was deficient or of improper charges, further
negating the conclusory nature of such statements.
Because Paragraph s 4, 5, 7 , and 8 of the Lopez affidavit were statements of
facts that were uniquely within Lopez's personal knowledge and of a nature that
could have been readily controverted by the Buchholzes, they were not conclusory.
Accordingly, the trial court abused its discretion by sustaining the Buchholzes'
objections to each of these paragraphs and the improper exclusion of Lopez's
statements led, in turn, to an improper award of summary judgment on his claims.
25
485 I -8480-4643.v I
E. The Preiss affidavit was not conclusory.
The Buchholzes objected to the following paragraphs of the Preiss affidavit
as improper legal and/or factual conclusions:
Paragraph 4 The written agreement I had with Dave H. Buchholz and
Mary A. Buchholz did not include the installation of a
new drivewây, sidewalk and flagstone.
Paragraph 5: The installation of a new driveway, sidewalk and
flagstone at the Buchholzes' residence was extra work
performed by Juan O. Lopez (the "Extra Work").
Paragraph 6 The Extra Work performed by Juan O. Lopez was not
performed subject to the written agreement between me
and the Buchholzes.
Paragraph 7 The Extra Work performed by Juan O. Lopez was not
performed under aîy agreement between me and Juan O.
Lopez.
Paragraph 8 I had no involvement in directing or agreeing to pay for
the Extra Work performed by Juan O. Lopez.
Paragraoh 9: The Buchholzes directed Juan O. Lopez to perform the
Extra Work.
(C.R. 199-200); (APP. 3; C.R. t92-193).
The Buchholzes' objections to the Preiss affidavit also were unfounded and
improperly sustained. As a party to a written agreement with the Buchholzes for
the construction of the Buchholzes' home, Preiss had personal knowledge of the
work covered by that agreement. Preiss also had personal knowledge of the slab,
framing, stone, and stucco work that he hired and paid Lopez to perform on the
26
485 I -8480-4643.v I
Buchholzes' home. By virtue of such knowledge, Preiss' statements in Paragraphs
4 through 7 were statements of fact concerning the scope of the written agreement
to which he was a party and the specific tasks that he assigned to Lopez under that
agreement. As such, these statements provided the basic underlying facts to
support Preiss' conclusion that the installation of the driveway, sidewalk, and
flagstone were not included in his written agreement with the Buchholzes or any
agreement that he had with Lopez. See Residential þnamics, LLC v. Loveless, 186
S.W.3d 192, 198 (Tex. App.-Fort Worth 2006, no pet.) (holding that statements
listing the basic terms of agreement provided the basic facts to support conclusions
c oncernin g thal agreement).
There also was nothing conclusory about Paragraph 8 or Paragraph 9 of the
affidavit, which the trial court nevertheless excluded from evidence. Preiss'
testimony that he did not direct or agree to pay Lopez for the installation of the
additional items, and that the Buchholzes directed Lopezto perform such work was
specific to facts within his personal knowledge. Preiss' statement that the
Buchholzes directedLopez to perform the work for which he sought payment also
was not oohearsay," as the Buchholzes contended, because Preiss was not testifuing
to anything he heard the Buchholzes say fo Lopez. Even if hearsay, this statement
was nevertheless admissible because it was offered against the Buchholzes and
made by the Buchholzes. Tsx. R. Evrn. 801(e)(2)(A) (u statement is not hearsay if
27
485 I -8480-4643.v I
it is offered against an opposing party and was made by the party). Accordingly,
the trial court funher abused its discretion in sustaining the Buccholzes' conclusory
and hearsay objections to Paragraphs 8 and 9 of Preiss' affidavit.
F. The trial courtos error in the exclusion of the Lopez and Preiss
affidavits probably caused the rendition of an improper summary
judgment award.
For each of the separate and independent reasons set forth above, the trial
court abused its discretion by sustaining all of the Buchholzes' objections to the
Lopez and Preiss affidavits. The statements contained therein were competent
summary judgment evidence. Had they been admitted, such statements would
have been sufficient to raise a fact issue on each element of Lopez's claims and
thus, to require denial of the Buccholzes' motion for summary judgment. As such,
the trial court's enoneous exclusion of Lopez's and Preiss' affidavit testimony
probably caused the rendition of an improper summary judgment award in favor of
the Buccholzes. Lopez is therefore entitled to a reversal of such judgment.
U. The Trial Court Erred in Granting Summary Judgment
The trial court's December 12, 2014 order granted the Buchholzs'
Traditional and No-Evidence Summary Judgment, dismissed all of Lopez's claims,
and entered a declarutory judgment and award of attorneys' fees in favor of the
Buchholzes. (C.R. 216-217). As shown above, the trial court improperly excluded
portions of the affidavits of Lopez and Preiss from the summary judgment record.
28
485 I -8480-4643.v I
As such, the trial court erred in granting summary judgment under either the
traditional or no-evidence standard because Lopez presented admissible
evidence-through the affidavits of himself and Preiss and the invoices for the
work performed-that presented more than a scintilla of evidence in support of
each of his claims and created genuine issues of fact to be resolved aI triaI.
Alternatively, even if the trial court's ruling on the objections to the summary
judgment evidence is affirmed by this Court, the trial court still erred in granting
summary judgment. The Buchholzes only objected to certain statements in the
affidavits. The remaining statements and other evidence in the summary judgment
record create genuine issues of material fact as to each of Lopez's claims. Finally,
regardless of this Court's determination onLopez's claims, the trial court erred in
awarding the Buchholzes attorneys' fees because the Buchholzes failed to carry
their burden that they were entitled to such relief on their affirmative claim for
declaratory judgment.
A. Standard of Review
Appellate courts review a trtal court's decision to grant a motion for
summary judgment de novo. Travelers Ins. Co. v, Joachim, 315 S.W.3d 860,862
(Tex.2010).
The Buchholzes were granted summary judgment on both no-evidence and
traditional grounds. As such, the Court must first review the trial court's summary
29
485 I -8480-4643.v I
judgment under the no-evidence standard of Texas Rule of Civil Procedure
166a(i). Ford Motor Co. v. Rídgway, 135 S.W.3d 598, 600 (Tex. 2004). In
reviewing a trial court's order granting a no-evidence summary judgment, this
Court msut consider the evidence in the light most favorable to the respondent and
disregard all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003). A no-evidence summary judgment is properly
granted only if the respondent fails to bring forth more than a scintilla of probative
evidence to raise a genuine issue of material fact. Id.; see Tsx. R. Cry. P. 166a(i).
More than a scintilla of evidence exists when the evidence rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.
Moore v. K Mart Corp.,981 S.W.zd266,269 (Tex. App.-San Antonio 1998, pet.
denied). Less than a scintilla exists when the evidence is so weak as to do no more
than create a mere surmise or suspicion of afact. Id.
Under a traditional motion, summary judgment must be affirmed if the
movant shows, as a matter of law, that no genuine issue of material fact exists as to
the non-movant's causes of action and that it is entitled to judgment as a matter of
law. Tex. R. Crv. P. l66a(c); Provident Lfe & Accident Ins. Co. v. Knott, 128
'Where
S.W.3d 211,215 (Tex. 2003). the movant has conclusively established the
absence of an issue of material fact on an element of the non-movant's claim for
relief, the non-movant must present evidence that raises some fact issue. Walker v.
30
485 I -8480-4643.v I
Harrís,924 S.\M.2d375,377 (Tex. 1996). To determine if the non-movant raises a
fact issue, the court must review the evidence in the light most favorable to the
non-movant, crediting favorable evidence if reasonable jurors could do so, and
disregarding contrary evidence unless reasonable jurors could not. City of Keller v.
Wilson,168 S.W.3d 802, 827 (Tex.2005).
Finally, when a trial court grants summary judgment without speciffing the
reasons, the appellate court may affirm the judgment on any theory that has merit.
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000);
Lennar Corp. v. Great Am. Ins. Co.,200 S.W.3d 651,661 (Tex. App.-Houston
[14th Dist.] 2006, no pet.); McMahan v. Greenwood,708 S.W.3d 467,477 (Tex.
App.-Houston [14th Dist.] 2003, pet. denied) (where defendant moved on
traditional and no-evidence grounds and order granting summary judgment did not
speciff grounds, both motions could be basis for affirming judgment on appeal).
B. The trial court erred in granting summary judgment on Lopez's
breach of contract claim because Lopez presented evidence of an
agreement with the Bucchholzes for the drivewayo sidewalk, and
flagstone work raising genuine issues of material fact.
In support of their traditional motion, the Buchholzes argued that no contract
existed between the Buchholzes and Lopez. The Buchholzes also moved that there
was no evidence as to each element of Lopez's breach of contract claim. But the
affidavits of Lopez and Preiss, along with the evidence and admissions of the
31
485 1 -8480-4643.v I
Buchholzes, show that there are genuine issues of fact as to whether a contract
exists for the driveway, sidewalk and flagstone work.
i. Issues of fact exist on whether there was an asreement between the
Buchholzes and Looez for the additional dri vewav^ sidewalk- and
flagstone work.
In order to prove a breach of contract, a plaintiff must demonstrate: (1) the
existence of a valid contract; (2) performance or tendered performance by plaintiff;
(3) breach of contract by the defendant; and (4) damages sustained by the plaintiff
as a result of the breach. Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.-
Houston ll4th Dist.l 2002, no pet.).
In this case, Lopez alleged he had an oral agreement with the Buchholzes for
the additional driveway, sidewalk and flagstone work. (C.R. 5-12). "In
determining the existence of an oral contract, the court looks to the
communications between the parties and to the acts and circumstances sulrounding
the communications." Cessna Aircraft Co. v. Aircraft l{etwork, L.L.C.,213 S.W.3d
455, 465 (Tex. App.-Dallas 2006, pet. denied). The existence of an oral contract
may be proved by circumstantial evidence as well as by direct evidence. PGP Gas
Products, Inc. v. Reserve Equip., Inc., 667 S.W.2d 604,607 (Tex. App.-Austin
1984, writ refd n.r.e.). An affidavit that lists the basic terms of an agreement,
states that plaintiff performed its obligations, and states the amount of expenses
that plaintiff incurred in performing, specifring at least what some of the expenses
32
485 I -8480-4643.v I
were, is sufficient to raise a fact issue as to whether the parties formed an
agreement, whether the agreement was breached, and whether the plaintiff
sustained damages as a resulf. Residential Dynamics, LLC,186 S.\M.3d at 198.
In this case, Lopez states in his affidavit that:
a he performed work atthe Buchholzes' residence;
o the work was performed at the direct request of Dave H. Buchholz;
a the work was performed in accordance with the instructions given by
Dave H. Buchholz;
O the work was approved by Dave H. Buchholz;
a the prices charged were reasonable and necessary;
o invoices were submitted to Dave H. Buchholz for payment for the
work on or about October 7,2013; and
o that Dave H. Buchholz made a partial payment of $5,000 from his
personal bank account for the work, leaving a balance due of
$27,584.80.
(APP.1; C.R. 139-190). The invoices attached to the Lopez affidavit described the
work performed, which included "flag stone in the porch and steps" as well as
labor and materials for the "driveway." (APP. 2; C.R. 191). The invoices further
reference the address of the Buchholzes' residence-84O Haven Loop Point-
showing that this work was performed for the Buchholzes, Id. The Buchholzes
argue that no written contract exists between Lopez and the Buchholzes, but this is
JJ
485 I -8480-4643.v I
irrelevant in this case because Lopez's affidavit raises a genuine dispute as to
whether the parties had an oral agreement for the additional work.
The Buchholzes also argue that this additional work was within the scope of
their contract with Preiss for the construction of the home, and that because Lopez
performed some work as a subcontractor under Preiss, all of Lopez's work on the
home must therefore have been performed as a subcontractor to this original
contract. But this is the entire factual dispute in this case-whether the Buchholzes
separately hired Lopez to construct the driveway, sidewalk and flagstone at their
home. The Buchholzes contend that they did not hire Lopez direcfly. However,
Lopez's affidavit states that he performed this work at the direct request of Dave
H. Buchholz, and Preiss' affidavit states that his Original Contract with the
Buchholzes did not include this work. (APP. 1-3; C.R. 189-193). Preiss' affidavit
further states that:
a the installation of the new driveway, sidewalk and flagstone at the
Buchholzes' home was extra work performed by Lopez;
o this extra work was not performed under any agreement between
Preiss andLopez;
a Preiss had no involvement in directing or agreeing to pay for this extra
work; and
o the Buchholzes directed Lopez to perform this extra work
34
485 l-8480-4643.v1
(APP. 3; C.R. 192-193). This evidence conflicts with the Buchholzes' contention,
and therefore raises an issue for the factfinder.
The Buchholzes also admitted in their pleadings that Lopez was hired to
pour the slab for the Buchholzes' home and to be the framer. (C.R. 36). They did
not allege that Lopezwas hired by Preiss to construct the driveway, sidewalk or
any flagstone work. None of the evidence submitted by the Buchholzes shows that
the drivew&y, sidewalk or flagstone work at issue was within the scope of their
Original Contract with Preiss. The Original Contract does not specifr this work.
(C.R. I27-I3l). Lopez's prior invoices to Preiss, the proofs of payment, and the
Draw Disclosure only show that Lopez performed and was paid for the slab and
framing work that the Buchholzes admit he was hired to perform. (C.R. 132); (C.R.
136-140); (C.R. 149-156). Evidence that Lopez performed some work on the
Buchholzes' home as a subcontractor of Preiss does not establish as a matter of law
that all work Lopez performed on the property was as a subcontractor. This is
particularly true when Lopez's and Preiss' affidavits contradict this assertion by
the Buchholzes and therefore raise a genuine issue of fact as to the ultimate
question in this lawsuit-whether there was a separate contract between the
Buchholzes and Lopez for the driveway, sidewalk, and flagstone work at issue.
Accordingly, the trial court erred in granting summary judgment on this point.
35
485 I -8480-4643.v1
ii. The statute ot is inaoolicable.
The Buchholzes mentioned in the introduction of their summary judgment
motion that Lopez's claim for oral contract violates the statute of frauds. (C.R.
105). The Buchholzes never argue this point in the body of the motion or present
any legal or evidentiary support to their statement, but summary judgment could
not have been granted on this ground either because the statute of frauds does not
bar enforcement of the oral contract between the parties
The statute of frauds exists to prevent fraud and perjury in certain kinds of
transactions by requiring agreements to be in writing and signed by the parties.
Haase v. Glazner,62 S.W.3d 795,799 (Tex. 2001); RrsrarEMENr (SncoNn) or
CoNrRRcrs g 131 cmt. c (1981). TexasBusiness andCommerce Code $ 26.01(a)
provides that:
A promise or agreement described in Subsection (b) to this section ts
not enforceable unless the promise or agreemenl, or a memorandum
of it, is
a. In writing; and
b. Signed by the person to be charged with the promise or
agreement or by someone lawfully authorized to sign for
him.
TBx. Bus. & Covnr. Cors $ 26.01(a). Section 26.01(bX6) provides that, to be
enforceable, promises or agreements o'which are not to be performed within one
year from the date of making the agreement" must be in writing. Id. at $
26.01(bX6). When a promise or agreement, either by its terms or by the nature of
36
485 I -8480-4643.v1
the required acts, cannot be completed within one year, it falls within the statute of
frauds and is not enforceable unless it is in writing and signed by the person to be
charged. Id.; Niday v. Niday,643 S.W.2d 919,920 (Tex. 1982) (per curiam). If the
agreement is capable of being performed within one year, it is not precluded by the
statute of frauds. See Gerstacker v. Blum Consulting Eng'rs, [nc.,884 S.W.2d 845,
849 (Tex. App.-DaIIas 1994, writ denied).
Courts use two points of reference in determining whether an agreement is
capable of being performed within one year: (l) the time of making the contract
and (2) the time when performance is to be completed. Young v. I4/ard,9l7 S.W.2d
506, 508 (Tex. App.-Waco 7996, no writ) (to measure contract duration for
statute-of-frauds pu{poses, the oocourt simply compares the date of the agreement to
the date when the perfoffnance under the agreement is to be completed"); Kalmus
v. Oliver,390 S.W.3d 586, 589 (Tex. App.-Dallas 2012, no pet.) If there is a year
or more between those the two reference points, a writing is required to render the
agreement enforceable. Young, 917 S.W.2d at 508. A contract thal could possibly
be performed within a year does not fall within the statute of frauds. Kalmus,390
S.W.3d at 590; Miller v. Riata Cadilla Co.,517 S.W.2d 773,775 (Tex. 1974).
The oral agreement between Lopez and the Buchholzes was for the
performance of a defined scope of driveway, sidewalk and flagstone work. This
work was performable within a year because it actually was performed within one
37
485 1-8480-4643.v1
year. The Original Contract for the construction of the home was not even
executed until November 30, 2012, less than a year before Lopez invoiced the
work at issue. (C.R. 127-L31). Thus, the entire home was constructed within a
year. Accordingly, the oral agreement between Lopez and the Buchholzes falls
outside the statute of frauds, and the summary judgment could not be granted on
this basis as a matter of law.
iii. More than a scintilla of evidence wâs nresented in sunoort of the
other elements ofLopez's breach of cqqtraqt!þix0.
Lopez also presented sufficient evidence as to the other elements of his
breach of contract claim to satisff his burden under Rule 166a(i). Renteria, 79
S.W.3d at242. There is no dispute that the driveway, sidewalk, and flagstone work
was actually performed by Lopez, and Lopez's afftdavit, Preiss' affidavit, and the
attached invoices are evidence that it was performed. (APP. 1-3; C.R. 189-193)
There is also no dispute that the Buchholzes have not paid for this work. Lopez's
affidavit and the attached invoices show that the Buchholzes paid $5,000 as partial
payment for this work, but that 527,584.80 is still owed. (APP. 1 and 2; C.R. 189-
191). Lopez's damages resulting from the Buchholzes' breach is the $27,584.80
unpaid amount. Id. Lopez presented the trial court with more than a scintilla of
evidence of each element of his breach of contract claim, and therefore summary
judgment on this claim could not have been granted under Rule 166a(i).
38
485 l -8480-4643.v I
C. Lopez presented evidence showing that he provided valuable services
for the Buchholzes and the Buchholzes accepted these services
without payment, such that the trial court erred in granting
summary judgment on Lopezts quantum meruit claim.
Quantum meruit is an equitable remedy that is intended to prevent unjust
enrichment when there is an implied agreement to pay for benefits received. In re
Kellogg Brown & Root, Inc., 166 S.\M.3d 732,740 (Tex. 2005). Quantum meruit
does not arise out of a contract but is independent of it. Vortt Exploration Co. v
Chevron USA, Inc., 787 S.W.2d 942, 944 (Tex. 1990). Generally, a party may
recover under quantum meruit only when no express contract covering the services
or materials furnished exists. In re Kellogg Brown & Root, Inc., 166 S.W.3d at
740. This remedy "is based upon the promise implied by law to pay for beneficial
services rendered and knowingly accepted." Campbell v. Nw. Nat'l Lifu Ins, Co.,
573 S.W.2d 496,498 (Tex. 1978). Recovery in quantum meruit is available when
nonpayment for the services rendered would "result in an unjust enrichment to the
party benefitted by the work." City of Ingleside v. Stewart, 554 S.W.2d 939,943
(Tex. Civ. App.-Corpus Christi 1977, writ refd n.r.e.).
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; (a) under such circumstances as reasonably
39
485 I -8480-4643.v1
notified the person sought to be charged that the plaintiff in performing such
services was expecting to be paid by the person sought to be charged. Heldenfels
Bros. v. City of Corpus Christi,832 S.W.2d39,41 (Tex. 1992); Vortt Exploration
Co.,787 S.W.2d at 944.
Affidavits similar to Lopez's have been held by other courts to constitute
more than a mere scintilla of evidence that the appellant rendered valuable services
so as to supporf a claim for quantum meruit. Johnston, 261 S.W.3d at 901;
Residential þnamics, 186 S.W.3d aI 198-200. In Johnston, the plaintiffs
affìdavit stated the hours of work that he put in and the "reasonable" pay rate he
charged for such work. Johnston,26l S.W.3d at 901. The affidavit further stated
that the defendant knew that the work was being performed for a parlicular entity
and consented to the plaintiff s work on such entity's behalf, but failed to pay the
plaintiff for this sarne work. Id. The court construed the plaintifls affidavit as
providing "alayman's estimate" of the reasonable value of his services and found
that it was sufficient evidence that the plaintiff provided services for the particular
entity alleged. Id. Accordingly, the court held that the trial court erred in rendering
a no-evidence summary judgment on the plaintifPs claim for quantum meruit
against that particular entity. Id.
Similarly, in Residential þnamics, the plaintiff s affidavit stated that (a)
plaintiff performed its obligations under agreement with the defendants, which
40
485 l -8480-4643.v1
included putting a manufactured home on a lot owned by the defendants and
adding other improvements thereto, including a driveway and concrete work; (b)
the improvements were still on the defendants' property; and (c) plaintiff and the
defendants had agreed to a specific payment scheme for the improvements.
Residential þnamics, 186 S.W.3d at 198-200. The court held that statements (a)
and (b) were sufficient to raise a fact issue as to whether valuable
services/materials were fumished by the plaintiff for the benefit of the defendants,
the person to be charged. Id. In addition, statement (b) raised a fact issue as to
whether the services/materials were accepted by the defendants, and whether the
defendants enjoyed the benefits of the improved lots. Id. Further, statement (c)
"clearly raised a fact issue" about whether the defendants should have been
reasonably notified that the plaintiff expected to be paid by the defendants
following the completion of the improvements to thelot.Id.
As in Johnston and Residentíal þnamics, Lopez's affidavit presented
evidence as to each quantum meruit element. There is no dispute that the driveway,
sidewalk, and flagstone work was performed by Lopez or that it was for the benefit
of the Buchholzes and accepted by the Buchholzes. (APP. 1 and 2; C.R.189-191)
The driveway, sidewalk, and flagstone work is part of the Buchholzes' home
which they have used and enjoyed since it was completed in 2013
4T
485 l -8480-4643.v1
Lopez's affidavit also shows that the Buchholzes were reasonably notified
that they were to pay for the driveway, sidewalk, and flagstone work. (APP. l;
C.R. 189-190). Lopez performed this work at the direct request and under the
instruction of Dave H. Buchholz. Id. The amounts charged for this work were
reasonable and necessary. 1d. Most importantly, Dave H. Buchholz made a partial
payment of $5,000.00 directly to Lopez on August 22,2013 for this work. Id. This
payment is reflected in the final invoice for this work as well. (APP. 2; C.R. 191).
The fact that the Buchholzes partially paid for the work is even greater evidence
than that presented in Residential of whether the Buchholzes were reasonably
notified of Lopez's expectation to be paid. It was reasonable for Lopez to expect
payment for the remainder of the amount owed for this work when the Buchholzes
had made apartial payment for it
The Buchholzes' traditional motion for summary judgment on Lopez's
quantum meruit argues there was no reasonable expectation of payment by the
Buchholzes because Lopez was a subcontractor of Preiss and the driveway,
sidewalk and flagstone work was performed under any contract with Preiss. The
Buchholzes' evidence in support of this argument is just the invoices and proof that
Lopez had previously provided other work on the home as a subcontractor of
Preiss. The Buchholzes presented no evidence that the drivewây, sidewalk, or
flagstone work that Lopez invoiced was done under any agreement between Lopez
42
485 I -8480-4643.v1
and Preiss. Regardless, the evidence presented by Lopez directly conflicts with the
Buchholzes' argument. Preiss' affidavit disclaims any such agreement for the
driveway, sidewalk and flagstone work performed by Lopez and that this work was
performed by Lopez directly for the Buchholzes. (APP. 3; C.R. 192-193). Lopez's
affidavit states the same. (APP. 1; C.R. 189-190). Furthermore, it is incredulous
for the Buchholzes to argue that they were not on notice of Lopez's expectation to
be paid the remaining amounts owed when they had already partially paid Lopez.
Id. Finally, the Buchholzes would have had reasonable notice of Lopez's
expectation to be paid because this additional work was requested by Dave H.
Buchholz. Id. This evidence presents a genuine issue of material fact as to Lopez's
quantum meruit claim, and summary judgment cannot be affirmed on this claim.
D. The evidence presents a genuine issue of fact as to whether Lopez has
a constitutional lien, and the trial court erred in granting summary
judgment on Lopez's lien foreclosure claim and the Buchholzeso
declaratory j udgment claim.
Texas law recognizes two types of mechanic's liens: (1) a constitutional lien;
and (2) a statutory lien. Tpx. CoNsr. art. XVI, $ 37; Trx. Pnop. ConB $ 53.001.
The source of all mechanic's liens is the Texas Constitution, which states as
follows:
Mechanics, artisans and materialman, of every class, shall have
a lien upon the buildings and articles made or repaired by them
for the value of their labor done thereon, or materials furnished
43
485 I -8480-4643.v I
therefore; and the Legislature shall provide by law for the
speedy and efficient enforcement of said liens.
TBx. CoNsr. art. XVI, $ 37. The case law in Texas holds generally that the
constitutional lien is available to a party who has contracted directly with the
owner. Da-Col Paint Mfg Co. v. American Indem. Co.,5l7 S.W.2d 270,273
(Tex.ß7Q; Horan v. Frank,5l Tex. 401,405 (1879). The statutory lien under
Chapter 53 of the Texas Property Code differs from the constitutional lien in that it
protects both the original contractor and subcontractors. CVN Group, Inc. v.
Delgado, 95 S.W.3 d 234,24647 (Tex. 2002). Thus, "[w]hether one is considered
an original contractor or a subcontractor is of fundamental importance." Da-Col
Paint Mfg. Co.,5I7 S.W.2d at273 (citations omitted)
As stated above, the main dispute in this case is whether the Buchholzes
contracted directly with Lopez for the drivew&y, sidewalk and flagstone work at
issue. The summary judgment record contained evidence creating a dispute as to
whether Lopez contracted directly with the Buchholzes. (APP. 1-3; C.R. 189-193).
Again, the Buchholzes' only argument on this claim was that Lopez had
previously performed some work on the home as a subcontractor of the original
contractor, Preiss. (C.R. 118-119). But the inference the Buchholzes make does
not defeat Lopez's claim as a matter of law. There is sufficient evidence in the
record creating a genuine issue of fact as to whether an express or implied contract
44
485 I -8480-4643.v1
existed between the Buchholzes and Lopez that precludes this Court from
affîrming the trial court's summary judgment on this claim. For this same reason,
the trial court also erred in granting summary judgment on the Buchholzes'
declaratory judgment claim that Lopezwas not entitled to a constitutional lien.
E. Alternativelyo even if this Court affirms the trial court's ruling on the
objections to Lopezos summary judgment evidence, the summary
judgment record still contains conflicting evidence raising genuine
issues of material fact as to Lopez's claims.
The fact that an affidavit contains both admissible and inadmissible matters
does not render it entirely void. Krishnan v. Law offices of Preston Henrichson,
P.C., 83 S.W.3d 295, 299-300 (Tex. App.-Corpus Christi 2002, Pet. denied)
(holding that remaining portions of affidavit not excluded as conclusory were
competent summary judgment evidence). The Buchholzes objected to a number of
statements in the Lopez and Priess affidavits. However, the Buchholzes did not
object to Paragraphg of Lopez's affrdavit or the invoices attached to his affidavit.
Thus, this statement and the invoices are part of the summary judgment record.
Lopez states in Paragraph 9 of his affidavit that the "undated invoice and the
invoice dated October 7,2013... were submitted to Dave H. Buchholz for payment
on or about October 7,2013." (APP. 1; C.R. 190). The invoices reference the
Buchholzs' þsrne-840 Haven Point Loop. (APP. 2; C.R. 191). They also identifu
the work performed as that the work was
ooflagstone
in the porch and steps," o'cover
45
485 l-8480-4643.v1
with flagstone bench", "driveway," and "seventeen steps." Id.Finally, the October
7, 2013 invoice referenced a $5,000.00 credit. Id. This evidence therefore shows
that Lopez performed the driveway and flagstone work for the benefit of the
Buchholzes with the reasonable expectation to be paid. This evidence, standing on
its own, presents more than a scintilla of evidence on Lopez's quantum meruit
claim. Additionally, the Buchholzes attached to their motion the draw requests by
Preiss, invoices, and checks from Preiss to Lopez which show Lopez provided
services only for the slab, framing and stucco on the home as Preiss' subcontractor.
The Buchholzes also admitted that Lopez was only hired by Priess to construct the
slab and perform framing work. (C.R. 36). This evidence further demonstrates that
the drivewãy, sidewalk, and flagstone work were outside the scope of the work
originally performed by Lopezfor Preiss on the Buchholzes' home.
In sum, even if portions of the Lopez and Preiss affidavits are inadmissible,
the remaining summaryjudgment evidence that was not excluded by the trial court
shows that Lopez performed the additional work for Buchholzes and that the
Buchholzes have received the benefits of Lopez's labor for over a year now
without having to pay for it. Accordingly, there is sufficient evidence to create a
genuine issue of fact of unjust enrichment such that this Court cannot affirm
summary judgment on Lopez's quantum meruit claim.
46
485 I -8480-4643.v I
UI. The trial court erred in awarding attorneyso fees on this affirmative
claim for relief because the Buchholzes failed to meet their burden of
showing how their declaratory judgment claim involved an issue not
already at issue in Lopezos original claims.
The ooDeclaratory Judgment Act is not available to settle disputes already
pending before a court." BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841
(Tex. 1990) (citing Heritage Life v. Heritage Grp. Holding,75l S.\M.2d 229,235
(Tex. App.-Dallas 1988, writ denied)). A counterclaim based on the Declaratory
Judgment Act must state a claim for affirmative relief. Id. at 841, n. 8. A claim for
affirmative relief is stated if the counterclaim alleges a cause of action independent
of the plaintiffs claim. Id. at 841. Thus, "â party cannot bring a counterclaim for
declaratory relief and recover attorney's fees when the counterclaim seeks
resolution of disputes already pending before the court." Thomas v. Thomas,902
S.W.2d 621, 626 (Tex. App.-Austin 1995, writ denied). The reason for this
prohibition is to prevent the use of a plea for declaratory relief "as a vehicle for
defendants to obtain attorney's fees merely for resisting the plaintiffs right to
recover." Owens v. Ousey,241 S.W.3d 124, 132 (Tex. App.-Austin 2007, pet.
denied) (citing HECI Exploration Co. v. Clajon Gas Co.,843 S.W.2d 622,638-39
(Tex. App.-Austin 1992, writ denied).
Lopez's Original Petition alleged that he was entitled to a constitutional lien
pursuant to Article 16, Section 37 of the Texas Constitution by providing "valuable
47
485 I -8480-4643.v I
merchandise and services, namely the installation of a driveway, sidewalk and
flagstone," to the Buchholzes. (C.R. 7). Lopez sought foreclosure on this lien. 1d
The Buchholzes' Second Amended Answer and Third-Party Claim asserted a
counterclaim for declaratory judgment that Lopez is not entitled to a constitutional
lien pursuant to Article 16, Section 37 of the Texas Constitution. (C.R. 4041).
Both claims rest exclusively on whether Lopez is entitled to a constitutional lien in
this case. The Buchholzes' declaratory judgment claim is therefore a mirror image
of Lopez's constitutional lien claim. As a matter of law, the Buchholzes cannot
recover their attomeys' fees on their counterclaim for declaratory judgment.
Thomas,902 S.'W.2d at 626; Breitenfeld v. ,Sl,S Institute, Inc., 147 S.W.3d 672,
679-80 (Tex. App.-Dallas 2004, no pet.) ("attorney's fees are not authorized
where a counterclaim requests a declaratory judgment that is the mirror image of a
claim akeady asserted by an adversary in the suit").
The Buchholzes had the burden to establish as a matter of law that they were
entitled to recover attomeys' fees on their declaratory judgment counterclaim.
Star-Telegram, Inc. v. Doe,915 S.W.2d471,474 (Tex. 1995); see also Landers v.
State Farm Lloyds,257 S.V/.3d740,746 (Tex.App.-Houston [1st dist.] 2008, no
pet.) ("deficiencies in the movant's own proof or legal theories might defeat the
movant's right to judgment as a matter of law"). Because Texas law does not allow
recovery of attorneys' fees for mirror-image declaratory judgment claims, the
48
485 I -8480-4643.v1
Buchholzes failed to establish that they were entitled to judgment as a matter of
law on their claim for attorneys' fees. The trial court erred in awarding the
Buchholzs' attorneys' fees and must be overruled on this point.
CONCLUSION
Based upon the foregoing, this Court should reverse the trial court's
December 12, 2014 order and Final Judgment. Lopez presented competent
summary judgment evidence creating issues of fact as to each of his claims. The
trial court erred in excluding much of this evidence, and this effor resulted in the
improper granting of the Buchholzes' summary judgment motion. The trial court's
summary judgment must also be reversed despite the exclusion of Lopez's
evidence because the remaining evidence presented fact issues on its own. But
regardless of any of these issues, this Court must reverse the trial court's award of
attorneys' fees because the Buchholzes' mirror-image counterclaim cannot support
recovery of attorneys' fees as a matter of law.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant Juan O. Lopez dlbla
J.L. Construction Co. prays that this Court (1) REVERSE the trial court's order
sustaining Appellees Dave H. Buchholz and Mary A. Buchholz's objections to
Appellant's summary judgment evidence; (2) REVERSE the trial court's order
granting summary judgment; (3) REVERSE, the trial court's Final Judgment
49
485 l -8480-4643.v1
entered on January 14, 2015; Ø) REMAND the case to the trial court for further
proceeding; and that Appellant be granted such other and further relief, at law or in
equity, to which it may show itselfjustly entitled.
Re spectfully submitted,
Conrs lRosn
By Richard C. McSwain
Richard C. McSwain
Texas Bar No. 24002588
Adam J. Richie
Texas Bar No. 24064164
Ryan T. Kinder
Texas Bar No. 24065560
Jamie Cohen
Texas Bar No. 24054524
1020 Northeast Loop 410, Suite 800
San Antonio, Texas 78209
(2 1 0) 224-7 098 Telephone
(2 I 0) 212-5 698 Facsimile
ATTORNEYS FOR APPELLANT
50
485 I -8480-4643.v I
CERTIFICATE O F'COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4, I HEREBY
CERTIFY that:
1. This appellant's brief contains 9,824 words, as determined by the
computer's word-count function, excluding the sections of the document
listed in Texas Rule of Appellate Procedure 9.4(i)(1).
2. This appellant's brief complies with the typeface requirements of Texas
Rule of Appellate Procedure 9.5(e) because it has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 in 14-point
Times New Roman font for the text and 12 point Times New Roman font
for the footnotes.
/s/ Richard C. McSwain
Richard C. McSwain
51
485 I -8480-4643.v1
CERTIFICATE OF SERVICE
I
HEREBY CERTIFY that a true and correct copy of the foregoing
instrument was delivered to all counsel of record in accordance with Rule 9.5 of
the Texas Rules of Appellate Procedure on this2grh day of April,2015.
Charles M.R. Vethan
Joseph L. Lanza
J. Seth Grove
VBrrmN Law FIRtr,t, PC
8700 Crownhill Blvd, Suite 302
San Antonio, Texas 78217
Attorneys for Appellees
Via Facsimile: (210) 826-2223
/s/ Richard C. McSwaín
Richard C. McSwain
52
485 I -8480-4643.v1
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EXT{'IBIT B
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CAUSE NO. C2014{2õ9C
JUAN O. LOPEZ DBAJ.L.
s IN THE DISTRICTCOURT
CONSTRUCTION CO.,
s
Plaintifr
s
s
v
s COMAL COUNTY. TEXAS
s
DAVE H. BUCHI{OI¿AND
s
MARYA. BUCHHOLZ
s
Deføndants
$
s
v.
s
s
SCOTT PREISS, S BAR S
s
CONSTRUCTION, [I.G, and
s
ELECTRIC CITY, LLC
$
Th¡rd-Pally Datendanß s 274T'r JUDICÚAL DISTRICT
STATE OF TEXAS s
s
COUNTY OF COMAL
s
Before rne, the undeaþned authority, personally app€ared Robert I
Scott preiss, I
t
whd, b€¡ng by nre duþ surorn, deposed a¡ foltows:
I
'1' þly nams ís Robert Scotl PreÍss. I arn of sound mind. capable
of making rhis
r
affidavit, and over the age of eighteen (18) pars, I havs never been convbted ol a
felony o¡ a crime involving moralturpitude. I havo personal I
knoadedge of the slatemenh I
I
ln thls affidavit, and the statemenls in this affldavit
are true and conest. i
2' I am the Sole Proprietor of Scott Preiss Construction and in such capacity ¡
I
perform all administrative and operations aclivities
of scott preiss Construction. lr was
:
t.
I
ín my capacity as Sole Propdetor that I galned pcrsonal
knowledge of the facts sef forth
in this Afüdavit.
EXTIIBIT C
192
Ð Ð
3' As sole Proprlêtor of sco[ Preiss Const¡uglion, I entered a written agreement
wilh Dave H' Buchholz and MaryA. Buchholz to perbrm
a dcfined scope of vrprk at lhe
Bucfrholz' residence located at 940 Haven Loop point,
New Braunfers, Texas Tg1g2.
4' The writlen agæement I hatt with Darre H. Buchhotz
and Mary A. Buchholz did
not include the installation of a non driveway, sida¡alk
and flagstone.
5' The lnstaÛlatien ol a new driwwey, sldeuralt< and flagstone
at ¡¡1e Buchholf
resldence was exFa work perfomed by Juan o. Lopez (the .Extra work).
6. The Extra work performed by Juan o. Lopez was not performed
subject to
the written agreement between me and the Buchholzes,,
7. The Extra work performed by Juan o. Lopez was not performed
under any
agreement between me and Juan O. Lopez_
L l had no involvement in directing or agreeing to pry for the Extra work
peúormed by Joan O, Lopez
9. The Buchholzes'dlrected Juan Lopez lo Extra Work"
10. Further Affiant sayeth naughl
SUBSCRTBED AND SWORN ro me on the
certify which witness my hand and ofücial seal. {} - day of No¡ember, 20i4, to
olq €, LV
ÊlûC+.¿0fl
193
^ééÉää~åíDë=_êáÉÑ
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,.þ FILED
Susan Collier
c2014{259C
1011712014 4:34:03 PM
Kalhy Faulkner
Comal County
CAUSE NO. C2014-0259C District Clerk
JUAN O. LOPEZ DBA J.L. $ IN TIIE DISTRICT CEMËî
CONSTRUCTION CO., $
PIoìntiff $
$
vs. $
(J
$
(n
x .¡.t-
g-n
DAVE H. BUCHHOLZ AND 5 i Ct
$ i--rr
MARY A. BUCHHOLZ fll
(.' r-j
s COMAL CO
Defendants $
3Ë
cng
vs.
$
s >l 3d
çn3
$ 3ñ (., Ð
SCOTT PREISS, and - C:D
gìÐ
$ 'u
ELECTRIC CITY, LLC s
'¿ -t
Third Pørty Defendants $ 274Ih JUDICIAL DISTRICT
ORDER G,RASTëç
PTTPNDANTi PAVE H. BUCHHOTZ AND MARY A.
"ucnHo..?s.
Motton to* tuM*^*tm
TO THE HONORABLE JUDGE OF SAID COURT:
After considering Defendants, Dave H. Buchholz and Mary A. Buchholz's Motion for
I
Summary Judgment. the pleadings, the resporrse, the affidavits, and other evidence
on file, the ÑL)
court: SWml ¡/5 Þ*r¿"\4*rï' oø-T€eã1 oNt ø?t*, un r,r, Shu*1g/er/
J¿>&Ent?t ¡g.lt bëa¡ Ue ; A-N{ IZÞEC lf
CRANTS Defendants' Motion for Summary Judgment.
THE COURT FINDS, AND tT lS THEREFORE ORDERED that Plaintiff Juan O.
Lopez DBA J.L. Construction Co.'s Claims for Breach of Contract, Suit on Swom account,
Quantum Meruit and foreclosure of a constitutional lien are hereby dismissed with prejudice.
IT IS FURTHER ORDERED that the Court makes the following declarations:
l. Juan O. Lopez is not entitled to a constitutional mechanics and materialman's
lien pursuant to the Texas constitution, Article 16, section 37.
2. Any Affidavit for Constitutional Mechanic and Materialman's lien filecl by
o_rder Grønring Defendønts, Døvîd rr. Buchholz and Mary A. Buchholz's,
Motionfor
Summary Judgment
216
.ç
@ {,Ð
Juan O. Lopez.related to this case is hereby declared void.
IT IS FURTHER ORDERED that Defendants recover the following from Juan O. Lopez
DBA J.L. Construction Co.,
l. Reasonable and necessary attorney fees in the amount of Twenty Thousand,
Eight Hundred and Fifty-Three and 84/100 dotlars ($20,853.84) for
Defendants, Dave H, Buchholz and Mary A. Buchholz's attorneys' fees as
required under TEx. crv. pn¡c, & Rn"r. coor A¡¡r.r. $ 37.009 (vemon).'
2. Court costs.
3. Post judgment interest from Plaintiff Juan O. Lopez DBA J.L. Construction
Co. at the rate of five percent (5%\ per annum, commencing from the date of
this Judgment as provided in Tex. Fin, Code g 304.003(c).
SIGNED on lL- day of 20t4.
order Grøntíng Deþndants, David II. Buchholz ønd Mary ,4. Buchholz,s, Motion
Summøry Judgment
þr
217
^ééÉää~åíDë=_êáÉÑ
J
^ééÉåÇáñ=R
I 1@ .@
..@ CAUSE NO. C2014-0259C-B
JUAN O. LOPEZ DBA J.L. $ IN THE DISTRICT COURT
CONSTRUCTION CO., $ JAN 1 4 2t15
Pluintiff $
$
NJ kllan
vs. $ D(.
$
DAVE H. BUCHHOLZ AND $ COMAL COUNTY, TEXAS
MARY A. BUCHHOLZ $
Defendunts $
$
$
$ 27 4Th JIJDICIA L D I STRICT
FINAL JUDGMENT
On December 12, 2014, the Court Granted Defenclants' Dave [1. Buchholz and Mary A.
Buchholz's Motion for Summary Judgment against Juan O. Lopez DBA J.L. Construction Co.
(þ All matters in controversy, legal and factual, were submitted to the Court for its
determination. 'fhe Court, after reviewing all evidence and arguments of counsel, entered its
decision for Plaintifï. Plaintitï filed a motion for entry of final judgment based on the Court's
decision and theref'ore, the Court:
Hereby RENDERS fìnal judgment fbr Defèndants' Dave H. Buchholz and Mary A.
Buchholz.
TI{E COURT FINDS, AND IT IS THEREFORE ORDERED that Plaintiff Juan O.
Lopez DBA J'L. Construction Co.'s Clai¡ns f'or Breach of Contract, Suit on Swom account,
Quantum Meruit and foreclosure of a constitutional lien are hereby dismissecl with prejudice.
IT IS FURTHER ORDERED that the Court makes the f'ollowing declarations:
1. Juan O. Lopez is not entitled to a constitutional mechanics and materialman's
r:.3 lien pursuant to the Texas constitution, Articre 16, section 37.
Finil Juilgment
240
M
Ì ('Ð
{ '-@
,]Ð 2. Any Afftdavit for Constitutional Mechanic ancl Materialman's lien lìled by
Juan O. Lopez related to this case is hereby declared void.
IT IS FURTFIER ORDERED that Defendants recover the following from Juan O, Lopez
DBA J.L, Construction Co.,
L Reasonable and necessary attomey lèes in the amount of Twenty Thousand,
Eight Flundred and Fifty-Three and 84/100 dollars ($20,853.84) for
Defenclants, Dave H. Buchholz and Mary A. Buchholz's attomeys' fees as
required under Tex, crv. Pn.qc. & REvr. cooa ANN. $ 37.009 (vemon),'
2. Court costs.
3. Post judgment interest fiom Plaintiff Juan O. Lopez DBA J.L, Construction
Co. at the rate of five percent (5%) per annum, commencing from the tlate of
this Judgment as provided in Tex. Fin. Code g 30a.003(c).
í,Ð
This judgment linally disposes of all slaims and all parries, and is appealable.
l. The Court orders execution to issue tbr this judgment anrJ all other processes
necessary to enforce this judgment.
2. Allrelief not sly granted herein is denied.
SIGNED on day of 0l 5.
J
3
Fìnnl Judgment
241