Silver Oak Custom Homes, LLC v. Tredway
| Decision Date | 11 July 2013 |
| Docket Number | NO. 01-12-01035-CV,01-12-01035-CV |
| Parties | SILVER OAK CUSTOM HOMES, LLC, APPELLANT v. BRENT TREDWAY AND JENA TREDWAY, APPELLEES |
| Court | Texas Court of Appeals |
On Appeal from the 151st Judicial District Court
Harris County, Texas
This lawsuit arises out of a home remodeling project. Silver Oak Custom Homes, LLC ("Silver Oak") appeals the trial court summary judgment in favor of Brent and Jena Tredway. When the project went awry, Silver Oak sued the Tredways under multiple liability theories. Silver Oak contends that it presented evidence that creates a fact issue regarding each of its claims and the Tredways'affidavits consist of conclusory statements insufficient to support summary judgment. We hold that the trial court erred in granting summary judgment as to Silver Oak's breach of contract claim, suit on sworn account, and quantum meruit claim, but it properly granted summary judgment against Silver Oak on its claims for fraud, defamation, business disparagement, and tortious interference with contractual relations. We therefore affirm in part, reverse in part, and remand for further proceedings.
The Tredways hired Silver Oak to build an addition on their home. Over the course of the project, the Tredways paid Silver Oak a total of $365,000 in five installments. When Silver Oak requested another payment, the Treadways refused to pay. Silver Oak ceased work on the project and sued the Tredways for breach of contract, quantum meruit, suit on sworn account, statutory and common law fraud, defamation, business disparagement, and tortious interference with contractual relations. The Tredways counterclaimed for breach of contract and fraud. The trial court granted the Tredways' subsequent traditional motion for partial summary judgment on Silver Oak's claims. The trial court severed the partial summary judgment, and Silver Oak filed a notice of appeal. The Tredways' counterclaims for fraud and breach of contract remain pending in a separate cause of action in thetrial court. See Tredway v. Silver Oak Custom Homes, LLC, No. 2009-29065, (151st Dist. Ct., Harris County, Tex.).
A partial summary judgment becomes final and appealable upon the severing of the parties and claims disposed of by the partial summary judgment into a separate cause. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam). Thus, a notice of appeal must be filed within thirty days after severance. Id.; TEX. R. APP. PROC. 26.1.
The Tredways initially contend that we lack jurisdiction over this appeal, because Silver Oak did not timely perfect it. The Tredways contend that the trial court dismissed all claims and parties with the partial summary judgment order.1 But neither the Tredways' motion for summary judgment nor the trial court's order granting partial summary judgment referred to the Tredways' then-pending counterclaims. The order granting partial summary judgment does not purport to dismiss all parties and all claims.
The trial court did not grant the Tredways' motion to sever Silver Oak's claims from their counterclaims until October 19, 2012. Silver Oak filed its notice of appeal on November 7, 2012, well within the thirty-day period after severance.See Farmer, 907 S.W.2d at 496; TEX. R. APP. PROC. 26.1. Accordingly, Silver Oak timely perfected its appeal.
Silver Oak contends that the Tredways failed to produce valid summary judgment evidence to negate its claims, because their affidavits are based on information and belief rather than personal knowledge. An objection that an affiant lacks personal knowledge of facts recited in the affidavit or that it lacks a recitation that an affiant has personal knowledge of the facts therein is an objection to the affidavit's form. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Dodge v. Durdin, 187 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2005, no pet.). To preserve an objection to the form of an affidavit, a party must timely object in writing to the defect and obtain a ruling from the trial court sustaining or striking the evidence. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex. 1993); Dodge, 187 S.W.3d at 532.
Silver Oak objected in writing to the trial court that both of the Tredways' affidavits stated that they were based on information and belief rather than personal knowledge. But it did so more than a year after the trial court granted the partial summary judgment. We hold that the objection was untimely to preserve this challenge on appeal. See McConnell, 858 S.W.2d at 343 n. 7; Dodge, 187 S.W.3d at 532.
Silver Oak seeks reversal of the summary judgment, contending that it raised a fact issue on each of its claims and that the Tredways' proof is insufficient to support summary judgment.
We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, like the one filed in this case, the movant must establish that no genuine issue of material fact exists and the movant is thus entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
Traditional summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. A genuine issue of material fact exists if the nonmovant produces more than a scintilla of probativeevidence regarding the challenged element. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Conclusory statements in an affidavit unsupported by facts are insufficient to support or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). A conclusory statement is one that does not provide the underlying facts to support the conclusion and cannot be readily controverted. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) ().
The Tredways respond that Silver Oak wrongly relied on its sworn pleadings to oppose the summary judgment motion because pleadings are not valid summary judgment evidence. We agree. Pleadings, even if sworn, are generally not proper summary judgment evidence. Hidalgo v. Sur. Sav. and Loan Ass'n, 462 S.W.2d 540, 544-45 (Tex. 1971); Inwood Forest Comty. Improvement Ass'n v. R.J.S. Dev.Co., Inc., 630 S.W.2d 751, 754 (Tex. App.—Houston [1st Dist.] 1982, no writ). An affidavit that adopts the pleadings in the case is also insufficient to support or oppose a motion for summary judgment because it cannot transform the pleading into evidence. Langley v. Arnold D. Kamen & Co., 455 S.W.2d 820, 824 (Tex. Civ. App.—Texarkana 1970, writ ref'd n.r.e.).
Silver Oak relies on its sworn pleadings, a deposition excerpt, and its agent's affidavit verifying its suit on sworn account as summary judgment evidence that raises fact issues about each of its claims. An affidavit required to plead a suit on sworn account is proper summary judgment evidence. See Seisdata, Inc. v. Compagnie Generale de Geophysique, 598 S.W.2d 690, 692 (Tex. Civ. App.— Houston [14th Dist.] 1980, writ ref'd n.r.e.). Deposition excerpts are also proper summary judgment evidence. McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex. 1994) (per curiam). Accordingly, in reviewing whether Silver Oak raises a fact issue, we consider the deposition excerpt and Silver Oak's affidavit on its suit on sworn account. See Seisdata, Inc., 598 S.W.2d at 692; McConathy, 869 S.W.2d at 342.
Silver Oak contends that it raised a fact issue as to each of the Tredways' claims, and that the Tredways' affidavits contain of conclusory statements that areinsufficient to support summary judgment. We review the summary judgment evidence on each of Silver Oak's claims in turn.
The essential elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.— Houston [1st Dist.] 2009, pet. denied). In their summary judgment motion, the Tredways maintain that Silver Oak's breach of contract claim fails because Silver Oak failed to satisfy its obligation to complete construction in a workmanlike manner. As summary judgment evidence to support this contention, the Tredways averred that
The Tredways provide no particular facts on which they base this conclusion. See Anderson, 808 S.W.2d at 55; CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). They do not explain any particular portions...
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