Ibarra v. Nicholes, No. 01-06-00762-CV (Tex. App. 8/2/2007)

• Decision Date: 02 August 2007
• Docket Number: No. 01-06-00762-CV.,01-06-00762-CV.
• Citation: Ibarra v. Nicholes, No. 01-06-00762-CV (Tex. App. 8/2/2007), No. 01-06-00762-CV. (Tex. App. Aug 02, 2007)
• Parties: JESUS IBARRA, Appellant v. PEGGY NICHOLES, LESA NICHOLES, AND SALON N.V. AND DAY SPA, INC., Appellees.
• Court: Texas Court of Appeals

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JESUS IBARRA, Appellant v. PEGGY NICHOLES, LESA NICHOLES, AND SALON N.V. AND DAY SPA, INC., Appellees.

No. 01-06-00762-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued August 2, 2007.

On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2004-15621.

Panel consists of Justices NUCHIA, KEYES, and HIGLEY.

MEMORANDUM OPINION

LAURA CARTER HIGLEY, Justice.

This is a suit between a commercial tenant of a retail center and a subcontractor hired to make improvements to the leased space. Appellees, Peggy Nicholes, Lesa Nicholes, and Salon N.V. and Day Spa, Inc. (collectively, the "Salon"), sued Jesus Ibarra for negligence, alleging defective construction of cabinetry. Ibarra counterclaimed under theories of breach of contract and, alternatively, quantum meruit, seeking payment for materials and services rendered to the Salon. In addition, Ibarra filed mechanic's and materialman's liens against the entire retail center property encompassing the Salon. The Salon filed a motion for summary judgment¹ on Ibarra's counterclaims and to set aside Ibarra's liens, which the trial court granted.

In what we construe as five issues, Ibarra contends that the trial court erred by granting summary judgment in favor of the Salon because (1) the Salon lacked standing to challenge Ibarra's liens; (2) the Salon's motion to vacate Ibarra's liens was not properly verified; (3) the trial court lacked authority to summarily dispose of the liens on the basis presented; (4) Ibarra's response was improperly deemed untimely; and (5) genuine issues of material fact precluded summary judgment.

We affirm.

Summary of Facts and Procedural History

In May 2003, the Salon leased space in the Royal Oaks Plaza commercial center on Westheimer Road in Houston (the "Leased Premises"). The Salon hired a general contractor, John Jamar, to construct improvements to the Leased Premises. Pursuant to an oral agreement, the Salon promised to pay $385,000 to Jamar, and, in exchange, Jamar promised to purchase all materials; hire, supervise, and pay all subcontractors; and provide an accounting for all sums expended. The parties agreed that Jamar would complete the improvements by September 1, 2003.

Construction began immediately, and Jamar hired Ibarra to construct and install custom cabinets at the Leased Premises. From May to October of 2003, according to the Salon, there were ongoing issues with Jamar and Ibarra regarding delays and defects in the construction.

On October 14, 2003, Ibarra invoiced Jamar for $31,721 for the cabinetry. Although the Salon had paid Jamar sufficient funds to pay Ibarra, Jamar failed to pay Ibarra. Subsequently, Ibarra met with the Salon and asserted that he was still owed "around $30,000." By late October, after the Salon had advanced Jamar $383,000 of the $385,000 agreed price, Jamar abandoned the job, leaving it unfinished.

On October 30, 2003, and again on February 13, 2004, Ibarra filed mechanic's and materialman's liens in the real property records of Harris County in which he claimed a lien of $54,400 against the entire fee simple interest in the Royal Oaks Plaza property owned by the landlord, Royal Oaks Plaza, Ltd. (the "Landlord").

On April 19, 2004, the Salon sued Jamar and Ibarra.² As to Jamar, the Salon claimed breach of contract, fraud, negligence, and conversion. The Salon alleged that Jamar had, inter alia, failed to complete "several fundamental aspects of the construction, including cabinet installation." In addition, the Salon alleged that Jamar had failed to pay over $50,000 owed for supplies and work performed by subcontractors and that, consequently, the suppliers and subcontractors had filed liens against the Leased Premises.

As to Ibarra, the Salon claimed negligence, alleging that Ibarra had incorrectly stained the cabinets, installed glass shelving in a manner that caused the glass to fall and shatter, failed to install work in compliance with codes, and failed to deliver materials for which he had been paid. In addition, the Salon sought to have Ibarra's liens vacated on the basis that the lien affidavit was overbroad and improperly placed a cloud on the title of the entire property rather than being restricted to the Salon's leasehold interest.

Ibarra counterclaimed against the Salon, seeking payment for the cabinetry under theories of breach of contract and, alternatively, quantum meruit, and seeking enforcement of his liens. Ibarra cross-claimed against Jamar for breach of contract, quantum meruit, and fraud.

In June 2004, the Salon moved for a partial summary judgment seeking to dismiss Ibarra's counterclaims and to vacate Ibarra's liens. Specifically, as to Ibarra's breach of contract claim, the Salon contended that no contract existed between the Salon and Ibarra. As to Ibarra's alternative quantum meruit claim, the Salon contended that it was Jamar's sole obligation to pay Ibarra. The Salon further asserted that Ibarra had failed to perfect his liens. To support its motion, the Salon attached the affidavit of Peggy Nicholes, the Salon's lease with Royal Oaks, Ibarra's invoice to Jamar, and Ibarra's original and revised lien affidavits.

On July 6, 2004, Ibarra responded to the Salon's motion for summary judgment, contending that the Salon's motion was procedurally defective and that genuine issues of material fact precluded summary judgment. Ibarra contended that he received direct assurances from Peggy and Lesa Nicholes that they would pay him, notwithstanding that they had already paid Jamar, and Ibarra asserted that his lien was proper. As evidentiary support, Ibarra attached his affidavit, a copy of the lease, and an accounting from Jamar.

On July 19, 2004, after a hearing and without stating its basis, the trial court granted summary judgment in favor of the Salon, dismissing Ibarra's counterclaims with prejudice and vacating Ibarra's liens on Royal Oaks Plaza.

On February 17, 2005, the trial court granted the Salon's motion to sever its claims against Jamar into a separate suit.³ On March 11, 2005, Ibarra moved for reconsideration of the summary judgment and severance order and, in the alternative, for a new trial. Specifically, Ibarra speculated that the trial court must have improperly disregarded Ibarra's summary judgment response as untimely. In addition, Ibarra contended that the severance order improperly failed to address Ibarra's cross-claims against Jamar.

On March 24, 2006, the Salon non-suited its claims against Ibarra. The claims by the Salon and Ibarra against Jamar were re-consolidated. Trial in these matters was held April 18, 2006, at which Jamar failed to appear. The trial court rendered a default judgment against Jamar in favor of the Salon for $ 216,817 plus attorney's fees of $44,000. As to Ibarra's cross-claims against Jamar, the trial court rendered a default judgment against Jamar for $64,000 plus attorney's fees of $11,000. The trial court's order also recites that it had previously granted summary judgment in favor of the Salon on Ibarra's counterclaims and that Ibarra's motion for reconsideration was denied. In addition, the trial court's order states that all remaining claims had been resolved and that the order constituted a final judgment.

Summary Judgment

A. Standard of Review

We review a trial court's grant of a traditional summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff moving for summary judgment must prove that he is entitled to summary judgment as a matter of law on each element of his cause of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex. App.-Houston [1st Dist.] 1997, no writ). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts will be resolved in its favor. Knott, 128 S.W.3d at 215. The movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd., 710 SW.2d at 60. A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

When, as here, the trial court's summary judgment order does not state the basis for the trial court's decision, we must uphold the order if any of the theories advanced is meritorious. Knott, 128 S.W.3d at 216.

B. Standing

In what we construe as his first issue, Ibarra contends that the trial court erred by granting summary judgment in favor of the Salon because the Salon lacked standing to challenge Ibarra's liens. Ibarra filed the liens at issue on the Landlord's entire fee estate (Royal Oaks Plaza) to secure the debt allegedly owed on improvements that Ibarra made to the Salon's leasehold space in Royal Oaks Plaza. Ibarra contends that the Salon, as a lessee, lacked standing to file an application under Texas Property Code section 53.160 for a summary disposition of the liens on the fee estate of the Landlord. See Tex. Prop. Code Ann. § 53.160 (Vernon 2007). The Salon contends that it is a proper party to invoke the remedy provided by section 53.160 by its status as a party to this suit and...