Foley v. Daniel

• Decision Date: 15 October 2009
• Docket Number: No. 08–07–00188–CV.,08–07–00188–CV.
• Parties: Karen FOLEY, Appellant,v.Mark G. DANIEL and Tim Moore, Appellees.
• Court: Texas Court of Appeals

346 S.W.3d 687

Karen FOLEY, Appellant,

v.Mark G. DANIEL and Tim Moore, Appellees.

No. 08–07–00188–CV.

Court of Appeals of Texas, El Paso.

Oct. 15, 2009.

Annette Vanicek, Fort Worth, TX, for Appellant.Mark A. Haney, Kobs, Haney and Hundley LLP, Fort Worth, TX, for Appellees.Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an appeal from the granting of a traditional motion for summary judgment and no-evidence motion for summary judgment in a suit alleging breach of contract and unjust enrichment by attorneys who were retained to make a citizen's presentation to the grand jury. We affirm in part and reverse and remand in part.

Appellant retained Appellees in January 2002 to make a citizen's presentation to the grand jury in hopes of obtaining an indictment of Nia Umoja, who was involved in a credit card scam that defrauded Appellant's business. Ms. Foley stated in her affidavit that the agreement was that the presentation would be made in April or May of 2002, but no later than June 2002. Appellees state that there was no time frame by which to make the presentation. Appellant paid a non-refundable retainer of $25,000 for the services. Appellees obtained files from the District Attorney's office regarding Ms. Foley's case. Appellees also hired an investigator, Fred Pendergraf, to help find evidence of the case. Appellees interviewed Jeanita Moore, who had all ready plead guilty in this case, by first attempting to visit with her in jail, and then by obtaining a bench warrant. Appellees met with a representative from Bank One to familiarize themselves with the credit and debit card system. They also obtained two grand jury subpoenas to be issued for documents that were not initially produced in the District Attorney's grand jury presentment. In January 2003, Ms. Foley terminated the representation agreement with Appellees. After the termination, Appellees returned $3,000 to Ms. Foley, and provided her with copies of Mr. Pendergraf's reports.

Appellant brought suit alleging breach of contract, quantum meruit, and unjust enrichment. The trial court granted Appellees' traditional motion for summary judgment and no-evidence motion for summary judgment. On appeal, Appellant argues (1) the trial court erred in granting the traditional motion for summary judgment because Appellees' failed to negate at least one element of each cause of action and did not conclusively establish any affirmative defense, and (2) improperly granted the no evidence summary judgment motion because Appellant presented sufficient evidence to establish her claims.

In Issue One, Appellant argues the trial court erred in granting the traditional motion for summary judgment. In Issue Two, Appellant argues the trial court improperly granted the no-evidence summary judgment motion. We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The traditional summary judgment standard asks whether the movant carried the burden of showing that there is no genuine issue of material fact, so that judgment should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). We consider all evidence in the light most favorable to the non-movant, indulging every reasonable inference in favor of the non-movant and resolving any doubt against the motion. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007). We also consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Id. at 755. Where a trial court does not specify the grounds upon which it relied in granting a summary judgment, we will affirm if any ground is meritorious. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995).

In reviewing a no-evidence motion for summary judgment, we must disregard all contrary evidence and inferences, and review the evidence in the light most favorable to the non-movants. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). The moving party must specifically state the elements as to which there is no evidence. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.-El Paso 2006, pet. denied); see Tex.R.Civ.P. 166a(i). The burden then shifts to the non-movants to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged. Gray, 225 S.W.3d at 616. If the non-movants produce more than a scintilla of evidence regarding the challenged element, a genuine issue of material fact is raised. Id. Less than a scintilla of evidence exists if the evidence is so weak as to create no more than a mere surmise or suspicion. King Ranch, Inc., 118 S.W.3d at 751. However, when the evidence rises to a level that enables reasonable minds to differ in their conclusions, then more than a scintilla of evidence exists. Id. If the non-movants do not produce more than a scintilla of evidence to raise a genuine issue of material fact, the trial court “must” grant the motion. See Tex.R.Civ.P. 166a(i).

The elements of a claim for breach of contract are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex.App.-El Paso 2000, no pet.). Plaintiff failed to provide any evidence of a breach of the contract by the Defendants. Plaintiff's...