Jensen Const. Co. v. Dallas County

• Decision Date: 27 February 1996
• Docket Number: No. 05-94-01850-CV,05-94-01850-CV
• Citation: 920 S.W.2d 761
• Parties: JENSEN CONSTRUCTION COMPANY D/B/A Jensen Construction of Texas and Concrete Textures, Inc. F/K/A Jensen Paving Company, Appellants v. DALLAS COUNTY, Appellee.
• Court: Texas Court of Appeals

Page 761

920 S.W.2d 761

JENSEN CONSTRUCTION COMPANY D/B/A Jensen Construction of Texas and Concrete Textures, Inc. F/K/A Jensen Paving Company, Appellants v. DALLAS COUNTY, Appellee.

No. 05-94-01850-CV.

Court of Appeals of Texas Dallas.

Feb. 27, 1996.

Paul E. Ridley, Wolin, Fuller, Ridley & Miller, Dallas, for appellants.

William B. Short, Jr., Mark H. How, Short How Lozano Frels & Tredoux, L.L.P., Dallas, and Gerard V. D'Alessio, Jr., Assistant District Attorney-Civil Section, Dallas, for appellee.

Before MORRIS, WHITTINGTON and JAMES, JJ.

OPINION

JAMES, Justice.

Jensen Construction Company, d/b/a Jensen Construction Company of Texas (Jensen), and Concrete Textures, Inc. f/k/a Jensen Paving Company (CTI) ¹ appeal from two summary judgments granted in favor of Dallas County (the County) and from the order denying their motion for partial summary judgment. In eleven points of error, appellants complain generally that the trial court erred by: (1) granting summary judgment for the County; (2) denying appellants' cross-motion for partial summary judgment; (3) overruling appellants' motion to strike the County's affidavits; and (4) denying appellants attorney's fees. In two cross-points of error, the County complains that the trial court erred by: (1) overruling the County's motion to strike the affidavits in support of appellants' response to the County's second motion for summary judgment; and (2) refusing to grant the County attorney's fees. Because each of the County's grounds presented to the trial court are insufficient to support summary judgment, we reverse the trial court's judgment and remand to the trial court for further proceedings. Because appellants' points of error complaining of the denial of their cross-motion for summary judgment would not dispose of the entire case we do not address them.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1987, Jensen and the County contracted for Jensen to construct paving and drainage improvements on a section of a street in Dallas. Jensen Paving, a division of Jensen Construction Company, began work on the project. After Jensen began construction, the County notified Jensen that the concrete had failed strength tests. ² The County ordered Jensen to stop construction. After retesting the concrete strength, the County allowed Jensen to resume construction.

In October 1988, Jensen separately incorporated Jensen Paving division as Jensen Paving Company. Jensen Paving Company continued to perform the work on the project until it completed the project in January 1990. Jensen Paving Company changed its name to Concrete Textures, Inc. (CTI) in 1990.

The County paid Jensen a total of $6,288,488.97 for the project, which included an early completion bonus. ³ The parties agree that Jensen completed and the County paid for the work required by the terms, plans, and specifications of the contract. After the County paid for the work, Jensen sent a claim to the Dallas County Commissioners Court for damages resulting from the County's alleged breaches of the contract. ⁴ Jensen claimed that the County required Jensen to provide extra materials and to perform work outside the scope of the contract. Jensen also claimed that it incurred additional costs as the result of interference by the County. After submitting its claim to the commissioners court, but before any response from the County, Jensen filed suit alleging breach of contract. The trial court granted summary judgment for the County, and the trial court dismissed Jensen's suit for failure to: (1) properly present its claim to the commissioners court; and (2) verify by affidavit the correctness of its claim. Jensen appealed. The County then informed Jensen that it had denied the claim for damages. Jensen again filed suit. The trial court granted summary judgment on the basis that the breach of contract action was barred by limitations and res judicata. Jensen appealed the dismissal of the second suit. The two appeals were argued together in this Court. In two unpublished opinions, we reversed and remanded each to the trial court. The two suits were consolidated on remand.

After remand, the County filed a motion for summary judgment against Jensen on the following grounds: (1) sovereign immunity; (2) Jensen was not entitled to delay damages as a matter of law; (3) Jensen failed to comply with contract provisions regarding obtaining payment for extra work; and (4) Jensen was not the entity that performed all of the work under the contract. ⁵

Jensen then filed its first amended petition adding quantum meruit claims and adding CTI as a party. The trial court granted partial summary judgment on the County's first motion for summary judgment. The trial court did not specify the ground or grounds upon which it relied. The judgment did not dispose of the quantum meruit claims, attorney's fees, or CTI's claims.

The County filed a second motion for summary judgment on the following grounds: (1) sovereign immunity barred the quantum meruit claims; (2) the trial court lacked original jurisdiction over Jensen's claims; (3) the damages claimed by Jensen fell within the scope of the contract and were, therefore, not recoverable under a quantum meruit theory (4) the County's project engineer had absolute and binding authority to determine the scope of the contract; (5) CTI's claims were barred by limitations; and (6) Jensen was not entitled to attorney's fees because the County is not an individual or a corporation.

Appellants filed a motion for partial summary judgment on the same day, on the following grounds: (1) the trial court had original, not appellate, jurisdiction over this controversy; (2) Jensen was entitled to pursue its quantum meruit claims; (3) Jensen was entitled to attorney's fees; (4) the County's contractual defenses did not apply to the quantum meruit claims; (5) Jensen had not released its claims against the County, nor had the County made payment on the claims; (6) the County was liable for damages caused by the conduct of ATL; and (7) the County could not recover its attorney's fees under the Uniform Declaratory Judgments Act.

The trial court granted the County's second motion for summary judgment except for the County's claim for attorneys' fees. The trial court did not specify the ground or grounds upon which it granted summary judgment. The trial court denied Jensen's cross-motion for partial summary judgment.

SUMMARY JUDGMENT

Standard of Review

The function of summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). In reviewing a summary judgment record, this Court applies the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

To prevail on a summary judgment, a defendant as movant, must either: (1) disprove at least one element of the plaintiff's theory of recovery; or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.--Dallas 1992, writ denied). An issue is conclusively established if ordinary minds cannot differ about the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

In a summary judgment case, the question on appeal is whether the summary judgment proof establishes, as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). When the motion for summary judgment alleges more than one basis of support, and the order granting the motion is silent about the reason for granting the motion, the appellant must show that each independent ground alleged in the motion is insufficient to support summary judgment. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

Denial of Summary Judgment

Generally, an order denying a summary judgment is not appealable because it is an interlocutory order. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). However, an exception exists when both parties move for summary judgment on the entire case, and the court grants one of the motions and overrules the other. See Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984); Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958); Utica Nat'l Ins. Co. v. Fidelity & Casualty Co., 812 S.W.2d 656, 658 (Tex.App.--Dallas 1991, writ denied). We may review denial of such a "cross-motion" only when the motion entitles the court to finally resolve the entire case, including rendition of the appropriate judgment. This Court may not review the denial of a partial summary judgment which is not otherwise subject to appellate review. See Rice v. English, 742 S.W.2d 439, 446 (Tex.App.--Tyler 1987, writ denied) (op. on reh'g).

In point of error eight, appellants contend the trial court erred by denying their cross-motion for partial summary judgment because the County executed an agreement expressly providing that appellants' acceptance of payment did not waive their claims. In point of error nine, appellants contend that the trial court erred in denying their cross-motion for partial summary judgment on the issue of the County's liability for relying on faulty testing by...