COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00289-CV
DAVID SCOT LYND APPELLANT
V.
LEA COX APPELLEE
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FROM THE PROBATE COURT OF DENTON COUNTY
TRIAL COURT NO. PR-2011-00093
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MEMORANDUM OPINION1
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I. INTRODUCTION
Pro se appellant David Scot Lynd2 appeals the trial court’s summary
judgment in favor of appellee Lea Cox. In thirty-two issues, Lynd argues that the
1
See Tex. R. App. P. 47.4.
2
At trial, Lynd was represented by counsel.
trial court erred by granting summary judgment. Lynd’s brief and reply brief
contain numerous allegations that Cox perjured herself during the course of this
case; that Cox submitted fraudulent documents in support of her summary
judgment motion; that the attorneys in this case reached agreements behind his
back out of fear of Cox’s influence over the trial court’s ability to impose
sanctions if Lynd’s attorney defended this suit correctly; that Cox illegally avoided
the probate of her father’s will to falsify title closure on the property involved in
this case; and that due to Cox’s “back room interference,” the trial court assisted
Cox at trial because it needed “a way to ignore” the law and evidence applicable
to this case. At one point in his briefing, Lynd contends that Cox’s initial attorney
in this case was a “criminal attorney” that Cox hired specifically because of her
own “criminal activity” and “felony acts.” Lynd directs us to no record evidence
for any of these allegations. We will affirm.
II. BACKGROUND
Lynd filed this suit in February 2011. In his amended petition, the live
pleading at the time of summary judgment, Lynd sought damages under the
theories of breach of contract, quantum meruit, and judicial foreclosure of
constitutional liens. As described in his petition, these causes of action relate to
“construction of improvements to property” alleged to be owned by Cox when
Lynd performed the construction. The damages Lynd sought specifically relate
to a “deck and patio cover, storage building, and gutters.” As can be gleaned
2
from the record, Cox once owned a mobile home situated on a lot in Lewisville. 3
The record indicates that Cox never owned the real property but at one time
owned the mobile home. It is not disputed that Lynd made these improvements
to the mobile home.
After discovery, Cox filed her motion for summary judgment, claiming the
affirmative defenses of accord and satisfaction and res judicata. She also
asserted that Lynd failed to establish his right to judicial foreclosure based on
constitutional liens.
As to her defense of accord and satisfaction, Cox attached an affidavit to
her motion in which she stated that she had personal knowledge that a receipt,
which she also attached to her motion, was a true and correct receipt signed by
Lynd in which he agreed to forego collection for the work on the deck and patio
cover, storage building, and gutters in lieu of past rent that he owed Cox for the
months of March, April, and May 2007. Cox also attached Lynd’s deposition
testimony in which he admits that he signed the receipt acknowledging Cox’s
payment in full for the services. She further attached a purported “abandonment
notice” signed by Lynd in August 2007, wherein Lynd “voluntarily vacate[d Cox’s
mobile home]” and wherein he “recind[ed] any claim through notice of
abandonment, or any other notice, or right known or unknown.” Moreover, Cox
3
The real property is located at 402 E. Highway 121, Lot 500, Lewisville,
Texas.
3
attached Lynd’s deposition testimony in which he stated that he drafted and
signed this document.
As to her defense of res judicata, Cox averred that Lynd had already
sought damages for the work he performed on the deck and patio cover, storage
building, and gutters in an earlier action in justice court. In support of this
position, Cox attached petitions, notices, and orders for dismissals with prejudice
on claims that Lynd had asserted in a previous action in justice court relating to
work performed on the deck and patio cover, storage building, and gutters.4
Cox also attacked Lynd’s constitutional-lien claims in her motion. Cox
averred that she never owned the real property on which the mobile home she
once owned was situated and that the bank repossessed the mobile home
sometime after Lynd voluntarily abandoned it in August 2007.
In his response, Lynd argued that “all purported agreements were based
on duress.” In support of this position, Lynd attached portions of his own
deposition testimony in which he stated that he signed the receipt “Pretty much.
Under duress.” When asked what duress he was speaking of, Lynd testified that
Cox had given him the ultimatum to “[e]ither give [the receipt] to her or move out.”
4
There is also evidence in the record that Lynd filed a different suit alleging
a marriage between him and Cox. In that suit, Lynd attempted to have the
alleged couple’s estate divided. According to an order attached to Cox’s motion,
the trial judge in that case sanctioned Lynd and ordered him to pay Cox’s
attorney’s fees and court expenses. In her motion, Cox averred that Lynd has
not paid her any of the monies ordered.
4
Although Lynd responded to Cox’s res judicata argument with the position
that “foreclosure of mechanic’s and constitutional lien[s]” could not have been
part of the previous action in justice court, Lynd did not provide any evidence to
contradict Cox’s position and evidence that she never owned the real property
that the mobile home was situated on, nor did Lynd present any evidence
contrary to Cox’s position that the mobile home had been repossessed.
At the summary judgment hearing, Lynd objected to Cox’s summary
judgment evidence, asserting that her affidavit and supporting documents did not
rise to the level of competent summary judgment evidence. While overruling
Lynd’s objection, the trial court noted that Cox’s affidavit recited that she had
personal knowledge of the facts stated within her affidavit and supporting
documents and that she knew the facts asserted to be true and correct.
Furthermore, Lynd ultimately conceded that he was unaware of who owned the
property or that the mobile home had been repossessed, but he did not bring
forward any evidence at that time to contradict Cox’s position that she did not
own the real property or that the mobile home had been repossessed. At the
conclusion of the hearing, the trial court granted Cox’s summary judgment
motion. This appeal followed.
III. DISCUSSION
Because we conclude that the trial court’s summary judgment is valid
under at least one theory of law asserted in Cox’s summary judgment motion
regarding Lynd’s breach of contract and quantum meruit claims—namely, her
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affirmative defense of accord and satisfaction—we will address Lynd’s issue on
appeal regarding accord and satisfaction. Further, because we conclude that the
trial court properly granted summary judgment as to Lynd’s constitutional-lien
claims based on Cox’s uncontroverted evidence that she never owned the real
property and that the mobile home was repossessed by the bank, we will
address Lynd’s issue on this subject as well. We need not address Lynd’s other
thirty issues because our resolution of these two issues is dispositive of all relief
that Lynd requests. See Tex. R. App. P. 47.1.
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). When, as here, a trial court’s
order granting summary judgment does not specify the ground or grounds relied
on for its ruling, summary judgment will be affirmed on appeal if any of the
theories presented to the trial court and preserved for appellate review are
meritorious. Knott, 128 S.W.3d at 216; Star-Telegram, Inc. v. Doe, 915 S.W.2d
471, 473 (Tex. 1995).
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A defendant is entitled to summary judgment on an affirmative defense if
the defendant conclusively proves all the elements of the affirmative defense.
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert.
denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish
this, the defendant-movant must present summary judgment evidence that
conclusively establishes each element of the affirmative defense. See Chau v.
Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
B. Accord and Satisfaction
Accord and satisfaction is a defense that rests upon a new contract,
express or implied, in which the parties agree to the discharge of an existing
obligation in a manner other than originally agreed. Smith–Hamm, Inc. v. Equip.
Connection, 946 S.W.2d 458, 462 (Tex. App.—Houston [14th Dist.] 1997, no
writ). The accord is merely a new agreement whereby one party agrees to give
or perform and the other to accept something other than or different from what
she is, or considers herself to be, entitled. City of Houston v. First City, 827
S.W.2d 462, 472 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Satisfaction
is then the performance of the agreement. Melendez v. Padilla, 304 S.W.3d 850,
852–53 (Tex. App.—El Paso 2010, no pet.).
Here, Cox provided summary judgment evidence via her affidavit and an
attached receipt that demonstrated that Lynd had entered into an agreement to
discharge Cox’s obligations to pay for the construction of the deck and patio
cover, storage building, and gutters in lieu of past rent owed by Lynd to Cox.
7
See Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (holding that photocopy
of note attached to affidavit of holder, who swore it was true and correct copy,
was proper summary judgment evidence and was sufficient as matter of law to
prove status of owners and holders of note absent controverting summary
judgment proof). To her motion, Cox further attached excerpts of Lynd’s
deposition testimony wherein he admitted that he had written and signed the
receipt and that the purpose of the receipt was to discharge Cox’s debt in relation
to these improvements to the mobile home so that Cox would forgive his past
rent arrearage and allow him to continue to live in the mobile home. See Tex. R.
Civ. P. 166a(c) (providing for trial court to rule on summary judgment motion
based on, among other evidence, deposition transcripts referenced or set forth in
motion or response).
On appeal, Lynd argues that the receipt is a “false, untrue, and ingenuous
(sic)” document, but Lynd failed to specifically present this issue in his response
to Cox’s summary judgment motion at trial. See McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (holding that unless the issue is
specifically presented in the response, courts cannot look to the nonmovant’s
brief or evidence to determine whether that issue precludes summary judgment).
Thus, Lynd has failed to preserve this issue for review.
In his summary judgment response at trial and at the hearing, Lynd did
argue that he entered the agreement to forego payment for his services in lieu of
past rent owed “[u]nder duress.” As evidence of duress, Lynd pointed to his own
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deposition testimony in which he testified that the reason he signed the receipt is
because Cox had said that if he did not, then she would force him to move out.
But the trial court properly determined that as a matter of law, Cox’s having
threatened eviction for Lynd’s failure to pay rent was her legal right, and duress
does not exist when a person threatens to do what she has the legal right to do.
See Matthews v. Matthews, 725 S.W.2d 275, 279 (Tex. App.—Houston [1st Dist.]
1986, writ ref’d n.r.e.) (reasoning that threatening to do what person has legal
right to do cannot form basis of duress).
In fact, in his deposition testimony, Lynd agreed that Cox had the right to
force him to leave the premises. Viewing the evidence in light most favorable to
Lynd, we hold that Cox established, via competent summary judgment evidence,
that she and Lynd had entered into an agreement whereby she agreed to forgive
Lynd’s past rent debt in return for his forgiving any monies he was entitled to for
the construction he performed on the deck and patio cover, storage building, and
gutters. See First City, 827 S.W.2d at 472. In short, we conclude that the trial
court’s summary judgment as to Lynd’s breach of contract and quantum meruit
claims is supported by Cox’s affirmative defense of accord and satisfaction,
which she presented in her motion for summary judgment.
C. Constitutional Liens
Woven throughout the initial thirty-two issues he briefed and again in his
lengthy reply brief, Lynd argues that Cox failed to provide competent summary
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judgment evidence that she did not own the property that he seeks judicial
foreclosure against based on constitutional liens.5
Lynd argues that Cox perjured herself, failed to provide documents to
prove that she was not the owner of the property, and otherwise engaged in
“blatant word games and false statements to avoid responsibility.” It seems that
Lynd is arguing that Cox’s affidavit is insufficient as summary judgment evidence
because he perceives a contradiction in Cox’s statements regarding the property.
Cox averred that she never owned the real property and that although she once
owned the mobile home, it had been repossessed and thus she no longer owned
it. Lynd argues that Cox’s position that she never owned the real property and
her position that she once owned the mobile home that was later repossessed
are at odds with each other. We fail to see Lynd’s point. The real property that
the mobile home sat upon at one time is distinct from the mobile home itself.
A defendant who conclusively negates at least one essential element of a
cause of action is entitled to summary judgment on that claim. Fernandez, 315
S.W.3d at 508. Once the defendant produces sufficient evidence to establish the
right to summary judgment, the burden shifts to the plaintiff to come forward with
5
In his briefing, Lynd provides what appear to be three perfected mechanic
and constitutional liens against the property involved in this suit. But these
documents are outside of the summary judgment evidence, and we can consider
only the material on file with the trial court as of the time the summary judgment
was granted. Brookshire v. Longhorn Chevrolet Co., 788 S.W.2d 209, 213 (Tex.
App.—Fort Worth 1990, no writ).
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competent controverting evidence that raises a fact issue. Van v. Peña, 990
S.W.2d 751, 753 (Tex. 1999).
Here, Cox provided competent summary judgment evidence that she
never owned the real property that Lynd seeks to foreclose upon, and she also
provided competent summary judgment evidence that the mobile home that she
once owned that sat upon the real property had been repossessed. This
evidence conclusively negated an essential element to Lynd’s constitutional-lien
claim, and Lynd failed to provide any controverting evidence. In fact, rather than
presenting evidence to the contrary, Lynd’s attorney admitted at the summary
judgment hearing that he was unaware that Cox no longer had any property
interest in the land or mobile home and that the reason that this claim had
“progressed . . . without any knowledge that [Cox] no longer [had] any property
interest” was because of her alleged “failure to notify” Lynd. See Gibson v.
Bostick Roofing & Sheet Metal Co., 148 S.W.3d 482, 495 (Tex. App.—El Paso
2004, no pet.) (“While the lien could have attached to Brown’s equitable
ownership interest, the lien was extinguished when Brown defaulted on his
payments and Gibson repossessed the property.”); see also S. Tex. Truss Co.,
LLC v. Lara, No. 13-11-00199-CV, 2011 WL 3855464, at *7 (Tex. App.—Corpus
Christi Aug. 31, 2011, no pet.) (“where the contract for labor, materials or
construction is not made with the owner or his duly-authorized agent,” a lien may
not be fixed on his property.) (mem op., not designated for publication) (citing
Gibson, 148 S.W.3d at 494). We conclude that Cox conclusively negated an
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essential element of Lynd’s constitutional-lien claim and that the trial court did not
err by granting summary judgment as to this claim based on Cox’s motion.
IV. CONCLUSION
Because we conclude that Cox established that she was entitled to
summary judgment as to Lynd’s claims for breach of contract and quantum
meruit based on the affirmative defense of accord and satisfaction, and because
we hold that Cox conclusively negated an essential element of Lynd’s
constitutional-lien claim, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DELIVERED: August 25, 2014
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