Silva, Otting & Silva, LLC v. Donna Econ. Dev. Corp. 4A

• Decision Date: 17 November 2022
• Docket Number: 13-20-00499-CV
• Court: Texas Court of Appeals
• Parties: SILVA, OTTING & SILVA, LLC, Appellant, v. DONNA ECONOMIC DEVELOPMENT CORPORATION 4A, DEVELOPMENT CORPORATION OF DONNA 4B, AND DONNA INTERNATIONAL BRIDGE CORPORATION, Appellees.

SILVA, OTTING & SILVA, LLC, Appellant,
v.
DONNA ECONOMIC DEVELOPMENT CORPORATION 4A, DEVELOPMENT CORPORATION OF DONNA 4B, AND DONNA INTERNATIONAL BRIDGE CORPORATION, Appellees.

No. 13-20-00499-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 17, 2022

On appeal from the 464th District Court of Hidalgo County, Texas.

Before Justices Longoria, Hinojosa, and Silva

MEMORANDUM OPINION

LETICIA HINOJOSA, JUSTICE

1

Appellant Silva, Otting & Silva, LLC (SOS) sued the City of Donna (the City)^[1] and appellees Donna Economic Development Corporation 4A (DEDC), Development Corporation of Donna 4B (DCD), and Donna International Bridge Corporation (DIBC) for breach of contract. The trial court granted appellees' no-evidence summary judgment motion as well as DIBC's traditional motion for summary judgment. It then severed SOS's claims against appellees and entered a final judgment in the severed cause. In three issues, which we reorder, SOS argues that the trial court erred in: (1) severing its cause of action against appellees; (2) denying its motion for continuance; and (3) granting appellees' motion for summary judgment. We affirm.

I. Background

A. SOS's Petition

SOS sued appellees and the City for breach of contract. SOS alleged that it entered into several business consulting agreements with the City and appellees "for the approval[,] financing, construct[ing,] installation[,] and rehabilitation of water and sewer facilities" as well as "the financing and development of the Donna-Rio Bravo International Bridge Project" (Bridge Project). With respect to the Bridge Project, SOS claimed it entered into an agreement on May 29, 2002, which was extended multiple times up to February 17, 2016. SOS alleged it obtained a grant for the City in the amount of $9,000,000, for which it invoiced the City $750,000. SOS further alleged that it implemented a financial plan for the City to obtain the refinancing of bonds in the amount of $27,900,000, for which it invoiced the City $1,600,000.

2

With respect to the improvements to water and sewer facilities, SOS claimed it originally entered into an agreement on August 12, 2002. SOS stated that it obtained $20,000,000 in grants, for which it invoiced the City $1,005,969.76.

SOS alleged that it entered into an amended payment agreement on March 29, 2017,that provided payment schedules for the balances owed to SOS under the prior agreements. According to SOS, the City made payments under this agreement until June 2018, at which time the City terminated the agreement.

In an attached letter dated August 13, 2018, from City Manager Carlos Yerena to SOS, the City stated it was terminating the "International Bridge Consultant Engagement," and that it would make no more payments to SOS "as the [C]ity cannot recognize the purported agreements[.]"

B. Dismissal Motions & Motions for Summary Judgment

Appellees answered suit.^[2] They later filed a no-evidence motion for summary judgment, challenging each element of SOS's breach of contract action. DIBC separately moved for traditional summary judgment on its statute of limitations defense. DIBC attached a January 28, 2008 Business Consultant Agreement Amendment between DIBC and SOS, which was purportedly the only contract to which DIBC was a signatory. DIBC argued that the latest SOS's action accrued was on October 31, 2009, when its agreement with SOS expired by its own terms. Accordingly, DIBC argued that SOS was required to bring suit no later than October 30, 2013, when the limitations period expired.

3

See Tex. Civ. Prac. & Rem. Code Ann. § 16.051; Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 786 (Tex. App.-Houston [14th Dist.] 2016, no pet.) ("The statute of limitations for breach-of-contract actions is four years from the date of accrual.").

SOS filed a combined response to the motions, which included a motion for continuance. SOS attached the following exhibits: (1) an undated and unexecuted contract labeled "draft" between SOS, the City, and appellees; (2) the affidavit of SOS's principal owner Ernesto Silva; (3) the August 13, 2018 termination notice to SOS from the City; and (4) the affidavit of SOS's counsel in support of the motion for continuance.

SOS alleged that it reached an agreement with the City and appellees on March 29, 2017, as evidenced by the draft agreement, that obligated appellees to "pay sums due and owing [SOS] based on a payment plan." SOS maintained that it completed the services entitling it to payment and that appellees breached the contract by notifying SOS "they were no longer going to pay the sums due under the contract." In response to DIBC's traditional summary judgment motion, SOS argued that it timely filed suit because DIBC breached the March 29, 2017 contract on August 13, 2018. SOS alternatively requested that the trial court continue the submission date, arguing that it needed "additional time to obtain minutes of meetings and audits of" the City and appellees. SOS maintained that the evidence was material to showing the existence of a contract with appellees.

Subsequently, on the parties' agreed motion, the trial court extended the submission deadline from March 30, 2020, to April 6, 2020, because appellees did not receive service of SOS's summary judgment response.

4

Appellees filed a reply to SOS's response, arguing SOS failed to establish the essential elements of its breach of contract claim. Appellees noted that the unsigned draft agreement contained no signature block for appellees, was not...