Lopez v. Bucholz
Decision Date | 07 April 2017 |
Docket Number | NO. 03-15-00034-CV,03-15-00034-CV |
Parties | Juan O. Lopez d/b/a J.L. Construction Co., Appellant v. Dave H. Bucholz and Mary A. Bucholz, Appellees |
Court | Texas Court of Appeals |
NO. C2014-0259C, HONORABLE DIB WALDRIP, JUDGE PRESIDING
Appellant Juan O. Lopez d/b/a J.L. Construction Co. appeals from the trial court's judgment granting the traditional and no-evidence summary-judgment motions of appellees Dave H. Bucholz and Mary A. Bucholz. In four issues, Lopez argues that the trial court erred in sustaining the Bucholzes' objections to his summary-judgment evidence, granting the Bucholzes' summary-judgment motions on his claims and their counterclaim, and awarding the Bucholzes attorney's fees. We will affirm in part and reverse and remand in part.
BACKGROUND
The record shows that in November 2012, the Bucholzes entered into a contract with a general contractor, Scott Preiss, for the construction of a home in Comal County. Lopez worked as a subcontractor on the construction of the home and completed various parts of the project, including framing the home and pouring the home's concrete-slab foundation. The issues in this appeal arose because Lopez claimed that in addition to the other work he did on the home, he also installed a driveway, sidewalk, and flagstone for the Bucholzes' home and received only a partial payment of $5,000 for the work. He alleged that the unpaid portion of the work totaled $27,584.80. He sent a demand letter for payment to the Bucholzes in January 2014 and then filed suit against them in March 2014, alleging that he had an oral contract directly with the Bucholzes for the alleged additional work that was separate and apart from the Bucholzes' contract with Preiss. He brought claims for breach of contract, sworn account, quantum meruit, and foreclosure of a constitutional lien. The Bucholzes filed a counterclaim for declaratory judgment, seeking declarations that Lopez was not entitled to a constitutional lien and that any affidavit he had filed for a constitutional lien was void. Both parties also sought attorney's fees.
The Bucholzes filed motions for traditional and no-evidence summary judgment seeking summary judgment on all of Lopez's claims and on their claims for declaratory judgment. After Lopez responded to the summary-judgment motion, the Bucholzes objected to his summary-judgment evidence. The trial court sustained the Bucholzes' objections to Lopez's summary-judgment evidence, granted the Bucholzes' traditional and no-evidence summary judgment motions, and awarded the Bucholzes attorney's fees in the amount of $20,853.84. This appeal followed.
DISCUSSION
Lopez appeals from the trial court's rulings on his summary-judgment evidence, the Bucholzes' summary-judgment motions, and the Bucholzes' request for attorney's fees. We will address each of his issues below.
Summary-Judgment Evidence
In his first issue, Lopez contends that the trial court erred in sustaining the Bucholzes' objections to two affidavits he submitted as summary-judgment evidence. The affidavits were those of Lopez and Preiss. We review evidentiary rulings in summary-judgment proceedings under an abuse-of-discretion standard. See Ordonez v. Solorio, 480 S.W.3d 56, 67-68 (Tex. App.—El Paso 2015, no pet.); Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.—Fort Worth 2008, pet. denied); Owens v. Comerica Bank, 229 S.W.3d 544, 548 (Tex. App.—Dallas 2007, no pet.); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000) ( ). A trial court abuses its discretion if it acts without regard to guiding rules or principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Id. Further, to establish reversible error on an evidentiary complaint, the complaining party must show that the trial court erred in excluding the evidence and that the error probably caused rendition of an improper judgment. See Horizon/CMS, 34 S.W.3d at 906; City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).
The affidavits offered by Lopez in response to the Bucholzes' summary-judgment motions were those of Lopez and Preiss. In Lopez's affidavit, he stated the following:
In the affidavit of Preiss (the general contractor), Preiss stated, in relevant part:
The Bucholzes raised several objections to the affidavits. To begin with, they objected to portions of Lopez's affidavit in which he referenced a $5,000 payment he received from Mr. Bucholz for his work. Specifically, the Bucholzes objected to the following two statements: "[Mr. Bucholz] approved the work and paid only a partial payment of $5,000.00 leaving a balance due of $27,584.80," and "[t]he partial payment of $5,000 was paid directly by [Mr. Bucholz] on August 22, 2013, under his personal bank account." In objecting to the two statements, the Bucholzes cited rule 193.6(a) of the Texas Rules of Civil Procedure and argued that the statements should be stricken under that rule because they "ma[d]e reference to a check" that Lopez had not produced in response to a request for production during the discovery process. See Tex. R. Civ. P. 193.6(a) (). However, Lopez's statements did not specifically reference a check but rather referenced a "payment," and even if his statement that the payment was made "under [Mr. Bucholz's] personal bank account" suggests that Mr. Bucholz paid him with a check, it is the check itself that could potentially be excluded under Rule 193.6(a), not testimony about receiving a payment. See id. In addition, one of the invoices Lopez attached to his petition and presented again later as summary-judgment evidence showed a credit of $5,000 applied to the total amount due. Thus, the Bucholzes had already been made aware of the alleged $5,000 payment. We also note that in the best-evidence rule context, "[e]vidence to the effect that a payment has been made is admissible without introduction of the check given in payment." See Cockrell v. Republic Mortg. Ins. Co., 817 S.W.2d 106, 116 (Tex. App.—Dallas 1991, no writ) (citing Jackman v. Jackman, 533 S.W.2d 361, 362 (Tex. Civ. App.—San Antonio 1975, no writ)). Given the foregoing, we conclude that the trial court erred in sustaining the Bucholzes' objection to the two statements under rule 193.6(a).
The Bucholzes also cited rule 166a(f) of the Texas Rules of Civil Procedure and asserted that the affidavits were "conclusory, self-serving, not readily controvertible, not best evidence, and contain[ed]...
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