NexGen Broadband, LLC v. Quanta Telecomm. Servs.

• Docket Number: 01-23-00520-CV
• Decision Date: 29 August 2024
• Parties: NEXGEN BROADBAND, LLC, Appellant v. QUANTA TELECOMMUNICATION SERVICES, LLC, Appellee
• Court: Texas Court of Appeals

1

NEXGEN BROADBAND, LLC, Appellant v. QUANTA TELECOMMUNICATION SERVICES, LLC, Appellee

No. 01-23-00520-CV

Court of Appeals of Texas, First District

August 29, 2024

On Appeal from the 61st District Court Harris County, Texas Trial CourtCase No. 2019-50818

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.

MEMORANDUM OPINION

Veronica Rivas-Molloy Justice

This appeal stems from a dispute between AppellantNexGen Broadband, LLC and AppelleeQuanta Telecommunication Services, LLC over an unpaid invoice.Quanta sued NexGen for breach of contract, fraud, and declaratory judgment and NexGen asserted counterclaims for the same causes of action.

Quanta filed a traditional and no-evidence motion for partial summary judgment on its contract and declaratory judgment claims and NexGen's counterclaims.NexGen did not respond to the motion and the trial court granted a partial summary judgment in favor of Quanta for $1,309,234.Quanta then filed a nonsuit of its remaining claim for fraud, and the trial court signed the nonsuit.

In six issues, NexGen argues (1)the trial court abused its discretion in failing to rule on NexGen's motion for hearing on Quanta's motion for partial summary judgment(2)the trial court abused its discretion by granting Quanta's motion for summary judgment"by default"; (3) the order of nonsuit was not a final judgment; (4)the trial court abused its discretion in failing to grant NexGen's motion for new trial; (5)the trial court abused its discretion in granting Quanta's motion for summary judgment"based on the credibility of a deponent"; and (6)the trial court abused its discretion in awarding damages and attorneys' fees.

We affirm.

The Underlying Dispute

This appeal involves a dispute over payment of an invoice for a fiber optic project.Pursuant to the parties' master services agreement, NexGen would issue work or purchase orders for Quanta to perform "engineering, procurement site acquisition, regulatory, construction, and project management services" for construction of a fiber optic network in four states.According to Quanta's pleadings, the orders were for "construction drawings showing methodology and location of fiber installation" but excluded "[a]ll permitting" from the scope of the job.

The master services agreement required Quanta to "produce all engineering drawings, structural calculations and other architectural and engineering services necessary for the permitting and construction of the Project."According to NexGen, Quanta produced "hundreds of drawings" that were rejected by the permitting authorities and "required revision before construction permits could be issued and construction could begin."NexGen alleged that Quanta failed to revise its drawings in order to enable NexGen to obtain permits for construction of the project.

Quanta contends it performed the work contemplated under four of NexGen's work and purchase orders and that in December 2017, it invoiced NexGen approximately $1.3 million for the work.NexGen avers it did not pay Quanta's invoice because Quanta "did not fulfill its obligations to NexGen" under the master services agreement.

Quanta sued NexGen for breach of contract, fraud, and declaratory judgment.Quanta alleged that NexGen's failure to pay the invoice was a breach of the master services agreement and that NexGen committed fraud by falsely representing that it would pay Quanta for its work.Quanta sought a declaratory judgment that under the master services agreement, the exclusion of "all permitting" excluded from Quanta's scope of work "any work associated with the creation of drawings for permitting purposes."

NexGen filed a counterclaim for breach of contract, alleging Quanta breached the master services agreement by failing to provide drawings satisfactory to the permitting authorities.NexGen also counterclaimed for fraud, alleging Quanta represented it would produce engineering drawings to enable NexGen to construct the fiber optic project but failed to do so.NexGen also sought a declaratory judgment that it was not liable for performance or nonperformance of the master services agreement given Quanta's breach of the agreement.^[1] NexGen sought $343 million in damages.

Summary Judgment Motion and the Subsequent Motions

On December 19, 2022, Quanta filed a motion for traditional and no-evidence partial summary judgment and a notice of submission.^[2] The summary judgment motion addressed Quanta's contract and declaratory judgment claims and NexGen's three counterclaims.Quanta set the motion for written submission on January 9, 2023.On December 27, 2022, NexGen filed a request for oral hearing and a motion for continuance of the summary judgment hearing.Emails between the parties on January 3, 2023 reflect they discussed the timing of the summary judgment motion submission and trial dates.NexGen's counsel told Quanta's counsel, "I can respond to the MSJ on January 16."On January 5, 2023, the parties filed an "Agreed Motion for Continuance of Trial and Request for Hearing," asking the trial court to continue the January 23, 2023 trial setting to May 8, 2023"so that Nex[G]en can be afforded additional time to respond to Quanta's Motion for Summary Judgment" and to set the summary judgment motion for oral hearing.

On January 6, 2023, the trial court granted the motion for continuance and continued the trial date to May 8, 2023.Three days later, Quanta filed a first amended notice of written submission with a January 30, 2023 submission date for the summary judgment motion.On January 10, 2023, NexGen asked Quanta to withdraw its notice of submission given the parties' agreement to request an oral hearing.Quanta declined, explaining that the court

requires that the motion be submitted, but permits requests for hearings.We agreed to join in your request for a hearing, which we did.The Court must grant the request, at which point, the clerk will advise of the hearing date.We have to notice it for submission initially so that the Court acts on our request for a hearing.

Quanta did not withdraw its notice of the January 30, 2023 submission date for the summary judgment motion.

On January 16, 2023, NexGen filed an amended request for oral hearing on the motion.The request mentioned the submission date of January 30, 2023.The appellate record does not reflect that NexGen set its amended request for oral hearing for submission or asked the trial court to continue the January 30, 2023 submission date.

NexGen's response to Quanta's partial summary judgment motion was due January 23, 2023, seven days before the submission date.SeeTex. R. Civ. P. 166a(c).NexGen did not file a response.On January 30, 2023, the trial court entered an order granting Quanta's motion for partial summary judgment.^[3] That same day, NexGen asked Quanta to "set aside the summary judgment" in light of their agreement to have an oral hearing on the motion.Quanta declined, noting that although it had agreed to join in NexGen's request for oral hearing, it was "ultimately up to the court to decide whether or not to grant the request for a hearing.This was all communicated to [NexGen] and the motion was properly noticed for submission on January 30th."

On April 6, 2023, NexGen filed a motion for reconsideration, but it did not set it for submission at that time.On April 21, 2023, Quanta filed a notice of nonsuit of its remaining fraud claim.The trial court signed an "Order of Non-Suit Without Prejudice" that same day.The Order provides in pertinent part

This Order does not affect modify, or release, in any way, any of the Court's prior Orders, including the Court's January 30, 2023 Order Granting Quanta's Traditional and No-Evidence Motion for Partial Summary Judgment(the "MSJ Order").

This Order, which explicitly incorporates the MSJ Order, finally disposes of all claims and all parties and is appealable.

Later that day, NexGen filed a notice of submission of its motion for reconsideration of the partial summary judgment.It was set for submission on May 1, 2023.NexGen filed a motion for new trial on May 19, 2023.It was overruled by operation of law on July 5, 2023.SeeTex. R. Civ. P. 329b(c).

This appeal ensued.

The Motion for Summary Judgment Hearing

In its first issue, NexGen argues the trial court abused its discretion by failing to rule on NexGen's motion for hearing on Quanta's motion for partial summary judgment.A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42(Tex.1985);see alsoUnited Bus. Mach., Inc. v. Sw. Bell Media, Inc., 817 S.W.2d 120, 122(Tex. App.-Houston[1st Dist.]1991, no writ)("To establish a clear abuse of discretion, it must be shown that the trial court's action was arbitrary or unreasonable in light of all the circumstances of the case. ")(citingSmithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442-43(Tex.1984)).

A.The Hearing Requirement

As it concerns motions for summary judgment, Texas Rule of Civil Procedure 166a(c) provides that a:

motion for summary judgment shall state the specific grounds therefor.Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.No oral testimony shall be received at the hearing.The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other

...