Residential Dynamics, LLC v. Loveless, 2-05-306-CV.

• Decision Date: 02 February 2006
• Docket Number: No. 2-05-306-CV.,2-05-306-CV.
• Citation: 186 S.W.3d 192
• Parties: RESIDENTIAL DYNAMICS, LLC, Appellant, v. Gerald LOVELESS and Appellees Lynn Loveless, Appellees.
• Court: Texas Court of Appeals

Page 192

186 S.W.3d 192

RESIDENTIAL DYNAMICS, LLC, Appellant, v. Gerald LOVELESS and Appellees Lynn Loveless, Appellees.

No. 2-05-306-CV.

Court of Appeals of Texas, Fort Worth.

February 2, 2006.

COPYRIGHT MATERIAL OMITTED

McWilliams & Thompson, Grady R. Thompson, McKinney, for appellant.

Hayes, Berry, White & McMurray, LLP, Richard D. Hayes and Christian Dennie, Denton, for appellee.

Panel F: DAUPHINOT, HOLMAN, and GARDNER, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Appellant Residential Dynamics, LLC appeals the trial court's granting of a no evidence summary judgment in favor of Appellees Gerald Loveless and Lynn Loveless. In two points, Appellant contends that the trial court erred by granting summary judgment because there was evidence supporting Appellant's claims for breach of contract and quantum meruit relief. We reverse and remand.

FACTUAL BACKGROUND

Appellees own a parcel of real property located in Denton County, Texas. Appellees subdivided the property into separate lots and named the area Lake Country Estates. Appellant alleged that Appellees entered into an agreement with Appellant, which was never reduced to writing, for construction on one of the lots. Appellant placed a mobile home on one of Appellees' lots and placed various improvements on the property. Appellant alleged that the agreement provided that after the improvements were made to the property, the lot would be sold and Appellees would receive $35,000 from the sale and Appellant would receive the remainder from the sale.

Appellant sued Appellees for breach of contract, or alternatively, quantum meruit, common law fraud, and fraud in a real estate transaction. Appellant alleged that it had fully performed all of its obligations under the agreement and incurred costs for the issuance of various necessary permits for the construction of the improvements and that Appellees had accepted the benefit of the contract and then refused to complete it. Appellees filed a no evidence motion for summary judgment on all of Appellant's claims, which the trial court granted, entering a take nothing judgment in favor of Appellees. This appeal followed.

SUMMARY JUDGMENT EVIDENCE

Appellant contends that more than a scintilla of evidence exists regarding its breach of contract and quantum meruit claims. The trial court found that the alleged oral contract was not definite, certain, and clear as to its essential terms, and was thus unenforceable. The court also found that Appellant produced no evidence of, among other things, any materials or services rendered by Appellant to Appellees. Therefore, the trial court dismissed Appellant's claims.

1. Standard of Review

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. TEX.R. CIV. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See TEX.R. CIV. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

We review the evidence in the light most favorable to the party against whom the no evidence summary judgment was rendered. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004); Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

2. Preservation of Error

In response to Appellees' no evidence motion for summary judgment, Appellant attached the affidavit of Darrell McCauley, the manager of Residential Dynamics, LLC, setting forth the elements of its causes of action against Appellee. As discussed below, Appellees made several objections to the affidavit. Appellant contends that Appellees did not receive a written ruling on the alleged errors in the affidavit, and therefore, waived any complaint about the affidavit. Furthermore, Appellant argues that the fact that the court granted the no evidence summary judgment does not show that there was an implicit ruling sustaining Appellees' objections.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. TEX.R.APP. P. 33.1(a); see also TEX.R. EVID. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh'g). The objecting party must get a ruling from the trial court. This ruling can be either express or implied. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.-Fort Worth 1999, pet. denied).

The majority of the substance of Appellees' reply to Appellant's response to the no evidence motion for summary judgment consisted of Appellees' objections to the form and substance of the McCauley affidavit. The trial court's judgment states that "the court considered the pleadings, motion, response, reply, and evidence" presented in granting the no evidence motion for summary judgment. Here, the only evidence presented in response to the no evidence motion for summary judgment was the McCauley affidavit. Therefore, we determine that the trial court implicitly overruled Appellees' objections to the affidavit when it granted Appellees' no evidence summary judgment motion. See Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 497-98 (Tex.App.-Fort Worth 2002, no pet.) (distinguishing Frazier on the basis that the record was completely silent as to any disposition of the objections or as to whether the trial court considered the deposition testimony); Frazier, 987 S.W.2d at 610 (holding that the trial court implicitly sustained the defendant's objections when it granted his motion for summary judgment, noting that the trial court stated that it had considered all "competent" summary judgment evidence); Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex.App.-Fort Worth 1998, no pet.) (holding the trial court implicitly overruled the plaintiff's objections to the defendant's summary judgment proof when it granted the defendant's motion for summary judgment).¹ Therefore, we turn to the merits of Appellees' objections to the McCauley affidavit.

3. Jurat

Appellees first complain that the affidavit was not competent summary judgment evidence because, although it contained an acknowledgment, it did not contain a jurat.²

To constitute competent summary judgment proof, an affidavit must be made on personal knowledge, set forth the facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the stated matters. TEX.R. CIV. P. 166a(f). An affidavit is a "statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." TEX. GOV'T CODE ANN. § 312.011(1) (Vernon 2005). The jurat of an affidavit is a "certificate by a competent officer that the writing was sworn to by the person who signed it." Huckin v. Connor, 928 S.W.2d 180, 183 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (quoting Acme Brick v. Temple Assocs., Inc., 816 S.W.2d 440, 441 (Tex. App.-Waco 1991, writ denied)).

Appellees contend that without a jurat, McCauley's affidavit is not actually an affidavit; thus, it does not constitute proper summary judgment evidence. They direct our attention to several cases, which we find to be distinguishable from the present case. In two of the cases, the purported affidavits were not signed by a notary. See Medford v. Medford, 68 S.W.3d 242, 247 (Tex.App.-Fort Worth 2002, no pet.) (stating that the purported affidavit clearly did not constitute an affidavit because it did not contain a notarization); Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex.App.-Texarkana 1995, no writ) (determining that the statement did not constitute an affidavit because the notary's certificate was left blank, it was not signed by a notary, and it bore no seal). In two other cases, the summary judgment "proof" was insufficient because it was not supported by an affidavit. See Moron v. Heredia, 133 S.W.3d 668, 671 (Tex.App.-Corpus Christi 2003, no pet.) (concluding that a report did not constitute proper summary judgment proof because it was neither verified nor accompanied by an affidavit); Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex.App.-Houston [14th Dist.] 1997, writ denied) (explaining that without a notarization or jurat, an unsworn statement is not an affidavit and is not proper summary judgment evidence).

The two final cases cited by Appellees do not appear to be current Texas law based on the facts before us. See Perkins v. Crittenden, 462 S.W.2d 565, 567-68 (Tex.1970) (holding that because the purported affidavit contained only an acknowledgment, it was not an affidavit at all); Totman v. Control Data Corp., 707 S.W.2d 739, 741 (Tex.App.-Fort Worth 1986, no writ) (op. on reh'g) (concluding that because the purported affidavit contained no jurat, it was not proper summary judgment evidence). These cases were decided prior to the most recent Texas Supreme Court case that is directly on point with the present case. See Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex.1995) (org.proceeding).

In Ford Motor Co., the supreme court rejected the argument that an...