ACCEPTED
13-15-00233-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
10/14/2015 2:08:40 PM
Dorian E. Ramirez
CLERK
Cause No. 13-15-233-CV
In The FILED IN
13th COURT OF APPEALS
Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS
10/14/2015 2:08:40 PM
For the DORIAN E. RAMIREZ
Clerk
Thirteenth Appellate District
Corpus Christi, Texas
ROCASS L.L.C., D/B/A
ROCASS HOMES APPELLANT
v.
NANCY ZAZUETA APPELLEE
BRIEF OF APPELLANT
ROCASS L.L.C. D/B/A
ROCASS HOMES
__/s/_Thomas G. Rayfield_____
Thomas G. Rayfield
State Bar No. 16615825
1300 North Tenth Street, Suite 300
McAllen, Texas 78501-4392
Telephone (956) 994-1155
Telecopier (956) 994-1148
ORAL ARGUMENT WAIVED
i
TABLE OF CONTENTS
CERTIFICATE OF PARTIES iv
TABLE OF AUTHORITIES v
WAIVER OF ORAL ARGUMENT xiv
STATEMENT OF THE NATURE OF THE CASE 2
ISSUES PRESENTED 3
STATEMENT OF FACTS 4
SUMMARY OF ARGUMENT 10
ARGUMENT 11
[A] Summary Judgments Generally Improper 11
[B] Home Owner Failed to Present Competent Evidence 15
{1} SOME EXHIBITS WERE NOT SWORN 15
{2} HEARSAY CANNOT SUPPORT SUMMARY JUDGMENT 16
{3} NO COMPETENT EVIDENCE = NO SUMMARY JUDGMENT 24
[C] Ignoring Defects, Home Owner Presented Insufficient Evidence 24
{1} NO EVIDENCE OF CONTRACT WITH HOME OWNER 25
{2} NO ENFORABLE CONTRACT WITH HOME OWNER'S ASSOCIATION 26
{3} INSUFFICIENT EVIDENCE OF DAMAGES PRESENTED 30
[D] Builder Defeated Summary Judgment by Questioning Terms 34
{1} NON MOVANT DEFEATS MOTION BY CREATING A FACT ISSUE 34
ii
{2} FACT ISSUE CREATED BY DISPUTING CONTRACTUAL TERMS 37
[E] Recovery Under Texas Residential Liability Act 39
CONCLUSION AND PRAYER 40
CERTIFICATE OF COMPLIANCE 41
CERTIFICATE OF SERVICE 41
iii
CERTIFICATE OF PARTIES
Appellant does hereby certify that the following are the parties and
their attorneys in this matter:
APPELLANT
ROCASS L.L.C., D/B/A
ROCASS HOMES
1117 South Shary Road
Mission, Texas 78572
APPELLANT'S COUNSEL
THOMAS G. RAYFIELD
1300 North Tenth Street, Suite 300
McAllen, Texas 78501-4392
Telephone (956) 994-1155
Telecopier (956) 994-1148
APPELLEE
Nancy Zazueta
4217 Ben Hogan Ave.
McAllen Texas 78503
APPELLEE'S COUNSEL
Armando M. Guerra & Associates PLLC
113 North 9th Avenue
Edinburg, Texas 78541
(956) 616-4641
iv
TABLE OF AUTHORITIES
CASES
Aldridge v. De Los Santos, 878 S.W.2d 288, 297 (Tex. App.--Corpus
Christi, 1994, writ dism'd w.o.j.) 22
Allied Marketing Group, Inc. v. Paramount Pictures Corp., 111 S.W.3d
168, 172 (Tex. App.--Eastland 2003, pet. denied) 14
Amaya v. Potter, 94 S.W.3d 856, 861 (Tex. App.--Eastland 2002,
pet. denied) 14
Amerada Hess Corp. v. Wood Group Production Technology, 30
S.W.3d 5 (Tex. App.--Houston [14th Dist.] 2000, pet. denied) 32
Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) 23
Arellano v. Americanos USA, LLC, 334 S.W.3d 326, 329 (Tex. App.--
El Paso 2010, no pet) 14
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997) 23
Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276,
284 (Tex. 1998) 32
Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc., 278
S.W.3d 470, 476 (Tex. App.--Houston [14th Dist.] 2009,
no pet.) 13
Balawajder v. Texas Dept. of Criminal Justice Institutional Div., 217
S.W.3d 20, 27 n. 6 (Tex. App.--Houston [1st Dist.] 2006, pet.
denied) 34
Ballis v. Urban National Bank, 770 S.W.2d 590, 592 (Tex. App.--
Houston [14th Dist.] 1989, no writ) 36
Barrera v. Sanchez, 679 S.W.2d 704, 705 (Tex. App.--San Antonio
1984, no writ) 16
v
Bennack Flying Service, Inc. v. Balboa, 997 S.W.2d 748, 751 (Tex.
App.--Corpus Christi 1999, writ dism'd w.o.j.) 12
Birdwell v. Long, 508 S.W.2d 466, 468 (Tex. Civ. App.--Amarillo
1974, no writ) 35
Board of Adjustment of City of San Antonio v. Leon, 621 S.W.2d
431, 434 (Tex. Civ. App.--San Antonio 1981, no writ) 15
Brazos River Conservations & Reclamation Dist. v. Harmon, 178
S.W.2d 281, 292 (Tex. Civ. App.—Eastland 1944, writ ref’d) 36
Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 880 (Tex. App.--
Beaumont 2008, pet. denied) 18
City of San Antonio ex rel. City Public Service Bd. v. Bastrop Cent.
Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin 2009,
pet. dism’d) 33
Cline v. Southwest Wheel & Mfg. Co., 390 S.W.2d 297, 299 (Tex. Civ.
App.--Amarillo 1965, no writ) 18
Crawford v. Pullman, Inc., 630 S.W.2d 377, 379-80 (Tex. App.--
Houston [14th Dist.] 1982, no writ) 25
Day Cruises Maritime, L.L.C v. Christus Spohn Health System, 267
S.W.3d 42, 57 (Tex. App.--Corpus Christi 2008, pet. denied) 30
Deverian v. Aviall of Texas, Inc., 1991 WL 218799 at 4 (Tex. App.--
Dallas 1991, no writ) 37
Digby v. Texas Bank, 943 S.W.2d 914, 923 (Tex. App.--El Paso 1997,
writ denied) 37
Dob's Tire and Auto Center v. Safeway Ins. Agency, 923 S.W.2d
715, 718 (Tex. App.--Houston [1st Dist.] 1996, writ dism’d
w.o.j.) 11
Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.--Amarillo
2008, pet. denied) 27
Doss v. Homecomings Fin. Network, Inc., 210 S.W.3d 706, 713 (Tex.
vi
App.--Corpus Christi 2006, pet. denied) 27
Drew v. Lauder, 647 S.W.2d 749, 751 (Tex. App.--Corpus Christi 1983,
writ ref'd n.r.e.) 35
Easley v. State, 986 S.W.2d 264, 269 (Tex. App.--San Antonio
1998, no p.d.r.) 17
E.B. Smith Co. v. United States Fidelity & Guar. Co., 850 S.W.2d 621,
624 (Tex. App.--Corpus Christi 1993, writ denied) 14
Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex. App.--Dallas
2008, no pet.) 23
Ellert v. Lutz, 930 S.W.2d 152, 155 (Tex. App.--Dallas 1996, no writ) 36
Empire Finance Service, Inc. v. Western Preferred Life Ins. Co., 461
S.W.2d 489, 490 (Tex. Civ. App.--Waco 1970, writ ref'd) 17
Farley v. Farley, 731 S.W.2d 733 (Tex. App.--Dallas 1987, no writ) 17
Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex. 1972) 12
Fibreboard Corp. v. Pool, 813 S.W.2d 658, 676 (Tex. App.--Texarkana
1991, writ denied), cert. denied, 508 U.S. 909, 113 S.Ct. 2339,
124 L.Ed.2d 250 (1993) 20
Fisher v. Yates, 953 S.W.2d 370, 380 (Tex. App.--Texarkana 1997),
writ denied per curiam, 988 S.W.2d 730 (Tex. 1998) 35
Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 63 (1962) 35
Gentry v. Squires Construction, Inc., 188 S.W.3d 396, 404 (Tex.
App.--Dallas 2006 no pet.) 39
Gerland's Food Fair, Inc. v. Hare, 611 S.W.2d 113, 116 (Tex. Civ.
App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.) 17
Gonzalez v. City of Mission, 620 S.W.2d 918, 922 (Tex. Civ. App.--
Corpus Christi 1981, no writ) 30
vii
Good v. Baker, 339 S.W.3d 260, 273 (Tex. App.--Texarkana 2011,
pet. denied) 21
Great American Reserve Insurance Co. v. San Antonio Plumbing
Supply Co., 391 S.W.2d 41, 47 (Tex. 1965) 12
Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297
(Tex. App.--Dallas 1994, no writ) 22
Greenville Ave. State Bank v. Lang, 421 S.W.2d 748, 751 (Tex. Civ.
App.--Dallas 1967, no writ) 23
Guillen ex rel. Guillen v. Potomac Ins. Co. of Illinois, 203 Ill.2d
141, 271 Ill.Dec. 350, 785 N.E.2d 1, 14 (2003) 31
Gulbekian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952) 11
Hall v. Harris County Water Control & Improvement Dist., 683
S.W.2d 863 (Tex. App.--Houston [14th Dist.] 1984, no writ) 38
HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board,
235 S.W.3d 627, 658 (Tex. 2007) 34
Horn v. First Bank of Houston, 530 S.W.2d 864, 865 (Tex. Civ.
App.--Houston [14th Dist.] 1975, no writ) 16
Houston Lighting & Power Co. v. Wheelabrator Coal Services
Co., 788 S.W.2d 933, 935 (Tex. App.--Houston [14th Dist.]
1990, no writ) 12
Howe v. Kroger Co., 598 S.W.2d 929, 931 (Tex. Civ. App.--Dallas
1980, no writ) 22
In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) 27
In Re Price's Estate, 375 S.W.2d 900, 904 (Tex. 1964) 40
In re SSP Partners, 241 S.W.3d 162, 170 (Tex. App.--Corpus Christi
2007, pet. denied) 29
International Insurance Co. v. Herman G. West, Inc., 649 S.W.2d 824
825 (Tex. App.--Fort Worth 1983, no writ) 11
viii
Keaton v. R. Dakin & Co., 716 S.W.2d 726, 727 (Tex. App.--Corpus
Christi 1986, no writ) 12
Kotzur v. Kelly, 791 S.W.2d 254, 256 (Tex. App.--Corpus Christi
1990, no writ) 15
Laidlaw Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656,
660 (Tex. 1995) 18
Lee v. McCormick, 647 S.W.2d 735, 737 (Tex. App.--Beaumont
1983, no writ) 12
M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d
22, 23 (Tex. 2000) 25
Magnuson v. Mullen, 65 S.W.3d 815, 828 (Tex. App.--Fort Worth
2002, pet. denied) 18
Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex.
App.--Houston [1st Dist.] 1991, writ denied) 27
MCI Telecommications Corp. v. Tex. Util. Elec. Co., 995 S.W.2d
647, 651 (Tex. 1999) 29
Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) 22
Merit Drilling Co. v. Honish, 715 S.W.2d 87, 92 (Tex. App.--Corpus
Christi 1986, writ ref'd n.r.e.) 29
Miller v. State and County Mutual Fire Ins. Co., 988 S.W.2d 326, 330
(Tex. App.--Corpus Christi 1999, no writ) 13
Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 860 (Tex. Civ.
App.--Fort Worth 1982, writ ref'd n.r.e.) 13
Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984) 13
Moore v. Memorial Hermann Hospital System, Inc., 140 S.W.3d 870,
874 (Tex. App.--Houston [14th Dist.] 2004, no pet.) 20
ix
Motel Enterprises, Inc. v. Nobani, 784 S.W.2d 545 (Tex. App.--Houston
[1st Dist.] 1990, no writ) 37
Munoz v. Gulf Oil Co., 693 S.W.2d 372, 374 (Tex. 1984) 24
Nationwide Property and Cas. Ins. Co. v. McFarland, 887 S.W.2d
487, 490 (Tex. App.--Dallas 1994, writ denied) 11
Neimes v. Ta, 985 S.W.2d 132, 137 (Tex. App.--San Antonio 1998,
writ dism'd by agr.) 18
Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex. Civ. App.--Corpus
Christi 1980, no writ) 11
Ortega v. City Nat. Bank, 97 S.W.3d 765, 772 (Tex. App.--Corpus
Christi 2003, no pet.) 30
Ortiz v. State, 999 S.W.2d 600, 607 (Tex. App.--Houston [14th Dist.]
1999, no p.d.r.) 19
Parfait v. Jahncke Service, Inc., 484 F.2d 296, 301 (5th Cir. 1973) 31
Pennington v. Brock, 841 S.W.2d 127, 132 (Tex. App.--Houston [14th
Dist.] 1992, no writ) 21
Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963) 33
Pjetrovic v. Home Depot, 411 S.W.3d 639, 647 (Tex. App.--Texarkana
2013, no pet.) 19
Portnow v. Berg, 593 S.W.2d 843, 845 (Tex. Civ. App.-- Houston [1st
Dist.] 1980, no writ) 35
Powell v. Vavro, McDonald, and Associates, L.L.C., 136 S.W.3d
762, 765 (Tex. App.--Dallas 2004, no pet.) 17
Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998) 13
Red Henry Painting Co. v. Bank of North Texas, 521 S.W.2d 339, 343
(Tex. Civ. App.--Corpus Christi 1975, no writ) 18
x
Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 783 (Tex. App.--El
Paso 2009, no pet.) 21
Roberts v. Geo Source Drilling Services, Inc., 757 S.W.2d 48, 51 (Tex.
App.--Houston [1st Dist.] 1988, no writ) 36
Schwartz v. State, 120 Tex.Cr.R. 252, 46 S.W.2d 985, 987 (1931) 17
Shamrock Foods Co. v. Munn & Assocs., Ltd., 392 S.W.3d 839, 846
(Tex. App.--Texarkana 2013, no pet.) 18
Sorrells v. Giberson, 780 S.W.2d 936, 937-38 (Tex. App.--Austin
1989, writ denied) 25
Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 214
(Tex. 2002) 12
State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991) 36
State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996) 31
Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) 29
Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) 33
Tawes v. Barnes, 340 S.W.3d 419, 424 (2011) 29
Tesoro Petroleum Corp. v. Coastal Refining & Marketing, Inc., 754
S.W.2d 764, 767 (Tex. App.--Houston [1st Dist.] 1988, no writ) 36
Texas Commerce Bank-Rio Grande Valley, N.A. v. Correa, 28 S.W.3d
723, 726 (Tex. App.--Corpus Christi 2000, pet. denied) 13
Texas International Airlines v. Wits Air Freight, 608 S.W.2d 828,
830 (Tex. Civ. App.--Dallas 1980, no writ) 25
Texas Emp. Ins. Ass'n v. Collins, 321 S.W.2d 119, 122 (Tex. Civ.
App.--El Paso 1959, writ ref'd n.r.e.) 17
Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S.W.
xi
1101, 1104 (1923) 28
Totman v. Control Data Corp., 707 S.W.2d 739, 742-43 (Tex.
App.--Fort Worth 1986, no writ) 14
Treadway v. Holder, 309 S.W.3d 780, 785 (Tex. App.--Austin 2010,
pet. denied) 34
Triton Commercial Properties, Ltd. v. Norwest Bank Texas, N.A., 1
S.W.3d 814, 817 (Tex. App.--Corpus Christi 1999, no writ) 12
Tucker v. Atlantic Richfield Co., 787 S.W.2d 555, 557 (Tex. App.--
Corpus Christi 1990, no writ) 15
United Parcel Service v. Helen of Troy Corp., 536 S.W.2d 415, 417
(Tex. Civ. App.--El Paso 1976, no writ) 37
Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20 (Tex. 1963) 35
Walton v. City of Midland, 24 S.W.3d 853, 855 (Tex. App.--El Paso
2000, no pet.) 14
Ward v. Crow, 476 S.W.2d 77 (Tex. Civ. App.--El Paso 1972, no writ) 37
Watson v. Citimortgage, Inc., 814 F.Supp.2d 726, 732 (E.D. Tex.
2011) 27
Wood v. Self, 362 S.W.2d 188 (Tex. Civ. App.--Dallas 1962, no writ) 18
Wright v. Lewis, 777 S.W.2d 520, 524 (Tex. App.--Corpus Christi 1989,
writ denied) 19
Youngstown Sheet and Tube Co. v. Penn, 363 S.W.2d 230, 232
(Tex. 1962) 17
STATUTES AND RULES
Tex. Prop. Code §27.004(g) 33
xii
Tex. Prop. Code §27.005 39
Tex. R. Evid. 803 19
OTHER AUTHORITIES
Jackson, Unlicensed to Drill: Proposed Renovations to the
Texas Residential Construction Commission Act, 36 ST. MARY'S
L.J. 753, 754 (2005) 39
McKenzie, PRIVATOPIA: HOMEOWNER ASSOCIATIONS AND THE RISE
OF RESIDENTIAL PRIVATE GOVERNMENT (1996) 28
1 WILLISTON ON CONTRACTS §7:14 (4th ed. 2014) 27
xiii
WAIVER OF ORAL ARGUMENT
Certain required items do not assist in the resolution of an appeal.
The most obvious is table of authorities; hours and hours are wasted on
alphabetizing cases needlessly (especially when it is doubtful whether most
of the cases are actually read). Another matter which does not assist in the
resolution of an appeal is oral argument. While attorneys love to talk (and
hear the sound of their own voice), their hot air does not assist in writing
opinions, especially after several months have passed. Accordingly,
Appellant waives oral argument.
xiv
Cause No. 13-15-233-CV
In The
Court of Appeals
For the
Thirteenth Appellate District
Corpus Christi, Texas
ROCASS L.L.C., D/B/A
ROCASS HOMES APPELLANT
v.
NANCY ZAZUETA APPELLEE
BRIEF OF APPELLANT
ROCASS L.L.C. D/B/A
ROCASS HOMES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ROCASS L.L.C. d/b/a ROCASS HOMES,
Appellant in the above styled and numbered cause, and files this its
BRIEF OF APPELLANT, demonstrating that the trial court erred in
granting summary judgment, because the summary judgment movant
failed to present sufficient competent evidence to establish her claims as a
matter of law, and because genuine factual disputes exist, i.e., what were
the terms of the alleged contract in question, and whether the setoff for this
property belongs on the east side or on the west side.
1
STATEMENT OF THE NATURE OF THE CASE
This case involves a property setoff; the home owner thought the set
off belonged on the west side, while the architect, the builder and the City of
McAllen all thought the setoff belonged on the east side. To maintain her
space, the home owner entered into a settlement with her adjoining
neighbor, paying him $18,000 for a three and a half foot setoff. She then
sought to recoup this amount of this settlement from her builder, along
with attorney's fees in roughly the same amount. Despite the clear factual
dispute as to the proper location of the applicable setoff, the home owner
filed a motion for summary judgment, supported by incompetent evidence;
most of it was inadmissible hearsay, and indeed, the home owner failed to
prove the existence of any contractual provision, requiring the setoff.
Naturally, in response, the builder objected. It also presented its own
competent evidence, clearly demonstrating that the required set off was on
the east side, and the Home Owner's Association approved plans with a
zero setoff on the west side. Despite the lack of competent evidence to
support the motion, and the disputed nature of the competent evidence
properly before it, the trial court, County Court at Law No. 7, Sergio Valdez
presiding, inexplicably granted the summary judgment. This appeal
naturally followed.
2
ISSUES PRESENTED
Did the trial court err in granting summary judgment?
Must a traditional summary judgment be supported by competent
evidence?
Do documents constitute hearsay?
Do pleadings constitute hearsay?
Are a movant's pleadings competent summary judgment evidence?
Does certification by a court clerk render the document not hearsay?
Must business records satisfy all elements of predicate before they are
admissible?
If the business records affidavit fails to include evidence that records
were collected in the regular course of business, do the attached documents
remain hearsay?
Can a movant obtain a summary judgment premised on a conclusory
affidavit claiming building plans complied with subdivision plans?
Can a movant obtain a summary judgment on conclusory attorney's
fees from his attorney?
In order to obtain summary judgment for breach of contract, must
the plaintiff present a full and complete copy of the contact?
In order to obtain summary judgment, must the breach of contract
3
plaintiff prove the existence of the disputed term?
Must a contract possess mutuality of obligation to be enforceable?
Is a third party beneficiary contract created by acknowledgement of
reading terms?
In order to recoup monies paid in a settlement, must the seeking
party prove the settlement was reasonable and made in good faith?
Is summary judgment proper when the parties dispute the terms of
their agreement?
Does the Texas Residential Construction Act create a cause of action?
If a party cannot recover on his underlying cause of action, can he
recover under the Texas Residential Construction Act?
STATEMENT OF FACTS
As the poet Robert Frost has noted, good fences make good
neighbors. Frost, Mending Wall. But to erect a fence, room must exist
between the property's boundary line and the house neighboring house.
The case at bar involves the lack of such distance, and whose fault was it.
Nancy Zazueta, Appellee herein, purchased Lot 35 in the Falling
Water at Bentsen Lake Subdivision in McAllen, to build a home. Cl.R. 993-
95. Appellee (hereinafter referred to as "Home Owner") retained Grupo
Calqueza, an architectural firm in Reynosa, Mexico to design her house.
4
These plans contained a six foot setback on the west side, i.e. six feet lay
between her property line and outside wall of the house. Cl.R. 1058-76.
Because they were premised on an incorrect lot size, the house plans
prepared by Grupo Calqueza were rejected. Cl.R. 1208, 1211. Accordingly,
Home Owner retained De La Vega Plan Design, a local architectural firm, to
redraft her house plans. As Home Owner herself admitted, Cl.R. 979, the
De La Vega's plans did not contain a six foot set off on the west side1;
instead, the plans envisioned Home Owner's house being built abutting the
property line. Cl.R. 1084-1106.
The De La Vega plans (with their zero setoff) were submitted to the
Home Owner's Association at Falling Water Subdivision, where Home
Owner's lot is located. Cl.R. 1209. After reviewing these plans, the Home
Owner's Association (hereinafter referred to as "HOA") approved them.
Cl.R. 1210. Thus, the HOA implicitly approved the zero setback on the west
side of Home Owner's property.
Subsequently, the De La Vega plans were submitted to the City of
McAllen for its approval. These plans were likewise approved. Cl.R. 1118-
28, 1132-36. In the course of such approval, the City of McAllen expressly
noted the lack of a setoff on the west side of Home Owner's lot. Cl.R. 1115.
After receiving approval from the HOA and the City of McAllen,
1Instead, such plans called for the set off on the east side.
5
Home Owner submitted the De La Vega plans to Rocass Homes, Appellant
herein, for construction of the house. Cl.R. 1209. Home Owner and Rocass
Homes (hereinafter referred to as "Builder") entered into a contract for the
construction of the house, following the De La Vega plans.
Builder is not an architect; rather, Builder builds what the architect
designs. Builder constructed Home Owner's house according to the De La
Vega plans. And since the De La Vega plans call for a zero setback, the wall
of Home Owner's house abutted her property line along with west side.
Cl.R. 1209. Subsequently, the City of McAllen approved the house for
occupancy. Cl.R. 1137. Indeed, from all external appearances, Home
Owner should be proud of her new home. Cl.R. 1066-68.
After Builder constructed had constructed the home, Home Owner's
neighbor commenced constructing his home. At some point in time, Home
Owner realized that her neighbor was building too close for comfort, Cl.R.
1152-55; accordingly, she sought a temporary injunction against him. Cl.R.
5-13.
Home Owner eventually settled with her neighbor. The settlement
provided that in exchange for $18,000, her neighbor would provide a 3.5
foot set off. Cl.R. 1158-61. In compliance with her agreement, Home
Owner non suited her claims against him with prejudice. Cl.R. 14. But she
6
then sought recoupment of this amount, along with attorney's fees, from
Builder. Cl.R. 19-27.
Ignoring the disputed nature of the evidence, Home Owner filed a
motion for summary judgment, seeking recoupment of the settlement
amounts, costs to fix the alleged defects in the home, and attorney's fees.
Cl.R. 28-493. To correct defects in her summary judgment evidence and to
limit the defects complained of, Home Owner filed a first amended motion
for summary judgment. Cl.R. 510-977. She subsequently filed her second
amended motion for summary judgment, focusing solely on recoupment of
the settlement funds and attorney's fees. Cl.R. 978-1194. Her theory was
twofold: 1) the construction contract between Builder and herself required a
west setoff; and 2) the "contract" between Builder and the HOA required a
west setoff, which she was entitled to enforce as a third party beneficiary.2
She further sought recovery under Texas' Residential Construction Liability
Act (commonly referred to as "RCLA").3 Cl.R. 982-87.
To support her three motions, Home Owner killed a mountain of
trees. But some omissions are immediately noticeable: she never attached
a copy of the construction contract between herself and Builder. Cl.R. 28-
493, 510-977, 978-1194. Likewise, she never attached a copy of any
2This third party beneficiary theory was never asserted in her pleadings. Cl.R. 21-22.
3Tex. Prop. Code §27.001, et seq.
7
contract between HOA and Builder; instead, she merely claimed that
Builder's acknowledgment that it would comply with HOA's regulations,
Cl.R. 1080, created her contract. Cl.R. 982-83. And unfortunately for
Builder and the trees themselves, the evidence Home Owner presented was
overwhelmingly incompetent. For example, Home Owner attached her
pleadings as evidence, Cl.R. 1193-51, 1162-70, even though a movant's
pleadings has constituted incompetent summary judgment evidence almost
since the inception of Tex. R. Civ. P. 166a. She presented five business
record affidavits, all of which failed to establish the necessary business
record predicate. Cl.R. 1077-83, 1107-37, 1171-74, 1186-88, 1189-91. The
three substantive affidavits presented were completely conclusory, and
failed to establish both the alleged contractual terms, and the actual
elements necessary for the recoupment of a settlement from a defendant.
Cl.R. 1138, 1156-57, 1175-76.
Given Home Owner's repeated mountains of incompetent evidence,
Builder repeatedly objected. Cl.R. 494-97, 1195-99. But Builder did not
solely rest its summary judgment response on the incompetency of Home
Owner's evidence; instead, it presented its own competent summary
judgment evidence, disputing Home Owner's version of events. Builder
swore that the HOA approved the De La Vega plans, which Home Owner
8
admits did not contain the setoff. Builder also disputed Home Owner's
claim that the formational documents of the subdivision required the setoff
to be on the west side. The subdivision's plat did not contain such a set off.
A survey of the property did not contain the set off. And the HOA's
guidelines did not require a set off. Cl.R. 1195-1215. Thus, the "contract"
between HOA and Builder did not require a set off.
When a summary judgment movant fails to establish his burden, the
trial court must deny the motion. Likewise, when the competent summary
judgment evidence is conflicting, the trial court must deny the motion. But
the trial court herein clearly jettisoned such legal dictates into the trash can.
Instead, it rendered summary judgment. And to add insult to injury, the
trial court refused to rule on Builder's numerous evidentiary objections.
Cl.R. 1231-32.
In response, Builder filed a motion for new trial. Cl.R. 1233-58. Such
motion for new trial expressly complained of the trial court's failure to rule
on Builder's evidentiary objections. Cl.R. 1233. Likewise, it reiterated
Home Owner's failure to establish her summary judgment burden, and the
completely disputed nature of the summary judgment evidence. Cl.R.
1236-45. However, the trial court refused to Builder's motion for a hearing,
and thus the motion for new trial was overruled by operation of law. This
9
appeal timely followed. Cl.R. 1259-67.
SUMMARY OF ARGUMENT
The first issue in determining any traditional motion for summary
judgment is whether the movant has satisfied his initial burden, by
presenting sufficient and competent evidence. In the case at bar, Home
Owner clearly failed to satisfy its summary judgment burden, because her
evidence was not sworn for purposes of Tex. R. Civ. P. 166a, was hearsay,
failed to established the undisputed terms of the contract, and failed to
establish third party beneficiary status. As a result, the trial court clearly
erred in failing to summarily deny Home Owner's motion for summary
judgment.
In order to obtain summary judgment for breach of contract, the
movant must establish an enforceable contract, along with its actual terms.
Conversely, if the non movant proves a dispute in the contract's terms,
summary judgment is improper. In the case at bar, Home Owner failed to
establish a contract with any set off requirement, and failed to establish an
enforceable contract (and third party beneficiary status) between her HOA
and Builder. Furthermore, Builder created a fact issue by disputing the
terms of the agreement. As a result, summary judgment was improper.
The Texas Residential Construction Liability Act does not create a
10
cause of action; instead, it merely created a procedural and substantive
overlay over construction claims, and limits the damages recoverable by a
homeowner. As a result, because Home Owner cannot recover on her
breach of contract claim, she cannot recover under her RCLA claim.
ARGUMENT
[A] Summary Judgments Generally Improper
Motions for summary judgment are strictly construed, both with
regard to procedural and substantive law. International Insurance Co. v.
Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex. App.--Fort Worth 1983,
no writ). The purpose of a summary judgment is not to deprive a litigant of
his right to a trial by jury, but to eliminate patently unmeritorious claims
and untenable defenses. Gulbekian v. Penn, 151 Tex. 412, 252 S.W.2d 929,
931 (1952); Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex. Civ. App.--
Corpus Christi 1980, no writ).
“To obtain a summary judgment, a plaintiff-movant must (1) prevail
on each element of the cause of action, and (2) produce evidence that would
be sufficient to support an instructed verdict at trial.” Dob's Tire and Auto
Center v. Safeway Ins. Agency, 923 S.W.2d 715, 718 (Tex. App.--Houston
[1st Dist.] 1996, writ dism’d w.o.j.). A matter supports an instructed verdict
only if ordinary minds could not differ as to the conclusion to be drawn
11
from the evidence. Nationwide Property and Cas. Ins. Co. v. McFarland,
887 S.W.2d 487, 490 (Tex. App.--Dallas 1994, writ denied). This burden
has been characterized as "heavy" and "horrendous". Lee v. McCormick,
647 S.W.2d 735, 737 (Tex. App.--Beaumont 1983, no writ). If this burden is
not satisfied, then the case must be set for trial on the merits. Houston
Lighting & Power Co. v. Wheelabrator Coal Services Co., 788 S.W.2d 933,
935 (Tex. App.--Houston [14th Dist.] 1990, no writ).
In determining whether this burden has been satisfied, the non
movant is entitled to some of the strongest presumptions known in Texas
jurisprudence. All doubts as to the existence of a genuine issue of a
material fact are resolved in favor of the non movant. Keaton v. R. Dakin &
Co., 716 S.W.2d 726, 727 (Tex. App.--Corpus Christi 1986, no writ).
Accordingly, the evidence will be viewed in the light most favorable to the
non movant, Bennack Flying Service, Inc. v. Balboa, 997 S.W.2d 748, 751
(Tex. App.--Corpus Christi 1999, writ dism'd w.o.j.), and evidence favoring
the movant's position will be ignored (unless uncontroverted). Great
American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391
S.W.2d 41, 47 (Tex. 1965). All evidence favorable to the non movant must
be accepted as true, and any conflicts in the evidence will be disregarded.
Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex. 1972); Triton
12
Commercial Properties, Ltd. v. Norwest Bank Texas, N.A., 1 S.W.3d 814,
817 (Tex. App.--Corpus Christi 1999, no writ). Every reasonable inference
from the evidence must be indulged in favor of the non movant, and all
doubts resolved in his favor. Montgomery v. Kennedy, 669 S.W.2d 309, 311
(Tex. 1984); Miller v. State and County Mutual Fire Ins. Co., 988 S.W.2d
326, 330 (Tex. App.--Corpus Christi 1999, no writ). If any issue of material
facts exists, summary judgment is inappropriate. Moeller v. Fort Worth
Capital Corp., 610 S.W.2d 857, 860 (Tex. Civ. App.--Fort Worth 1982, writ
ref'd n.r.e.).
The applicable presumptions does not improve for the summary
judgment movant as his case traverses to the appellate court. On appeal,
the trial court's summary judgment is reviewed de novo. Texas Commerce
Bank-Rio Grande Valley, N.A. v. Correa, 28 S.W.3d 723, 726 (Tex. App.--
Corpus Christi 2000, pet. denied). As the Texas Supreme Court has
explained, “When conducting a de novo review, the reviewing tribunal
exercises its own judgment and redetermines each issue of fact and law. In
such a review, the reviewing tribunal accords the original tribunal's deci-
sion absolutely no deference.” Quick v. City of Austin, 7 S.W.3d 109, 116
(Tex. 1998)(emphasis added). Consequently, "Under Texas summary
judgment procedure, the trial court's ruling is entitled to no deference."
13
Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc., 278 S.W.3d
470, 476 (Tex. App.--Houston [14th Dist.] 2009, no pet.)(Frost, J., con.).
The question presented before the appellate court is not whether the
summary judgment proof presents material fact issues, but whether the
evidence presented to the trial court establishes, as a matter of law, all
elements of plaintiff’s cause of action. Totman v. Control Data Corp., 707
S.W.2d 739, 742-43 (Tex. App.--Fort Worth 1986, no writ). In making this
determination, this Court only considers the evidence before the trial court
at the time of the hearing. E.B. Smith Co. v. United States Fidelity & Guar.
Co., 850 S.W.2d 621, 624 (Tex. App.--Corpus Christi 1993, writ denied).
Unlike other final judgments reviewed on appeal, appellate courts do not
review the summary judgment evidence in the light most favorable to the
judgment of the trial court. Walton v. City of Midland, 24 S.W.3d 853, 855
(Tex. App.--El Paso 2000, no pet.). Instead, the evidence must be viewed
in the light most favorable to the non-movant. Allied Marketing Group,
Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 172 (Tex. App.--Eastland
2003, pet. denied). Every reasonable inference in favor of the non-movant
must be indulged in, Amaya v. Potter, 94 S.W.3d 856, 861 (Tex. App.--
Eastland 2002, pet. denied), with all doubts resolved in his favor. Arellano
v. Americanos USA, LLC, 334 S.W.3d 326, 329 (Tex. App.--El Paso 2010,
14
no pet). The appellate court will accept all evidence supporting non movant
as true, and will ignore all contradictory evidence. Southwestern Elec.
Power Co. v. Grant, 73 S.W.3d 211, 214 (Tex. 2002).
[B] Home Owner Failed to Present Competent Evidence
In order to prevail on a traditional motion for summary judgment,
the threshold burden is to present competent summary judgment evidence.
Generally, such burden is established by presenting affidavits, accompanied
by any relevant documentation. In this case, Home Owner failed to present
any lengthy affidavit, explaining the underlying facts. Instead, Home
Owner, in essence, only presented documentary evidence (and killed a
number of trees in the process). Cl.R. 28-493, 510-977, 978-1194. But
documentary evidence is not as readily admissible as affidavits are. And
while Home Owner did attempt to render such evidence admissible, such
efforts were largely failed.
{1} SOME EXHIBITS WERE NOT SWORN
Documents which are unsworn cannot be considered as summary
judgment evidence. Tucker v. Atlantic Richfield Co., 787 S.W.2d 555, 557
(Tex. App.--Corpus Christi 1990, no writ); Board of Adjustment of City of
San Antonio v. Leon, 621 S.W.2d 431, 434 (Tex. Civ. App.--San Antonio
1981, no writ); Sturm Jewelry, Inc. v. First Nat. Bank, Franklin, 593 S.W.2d
15
813, 814 (Tex. Civ. App.--Waco 1980, no writ). Indeed, so fundamental is
this prohibition is that it can be raised for the first time on appeal. Kotzur
v. Kelly, 791 S.W.2d 254, 256 (Tex. App.--Corpus Christi 1990, no writ).
In the case at bar, Home Owner presented the following documents
as summary judgment evidence:
Home Owner's warranty deed (Cl.R. 993-95)
Subdivision Restrictions (Cl.R. 997-1057)
Grupo Calqueza Plans (Cl.R. 1058-76)
De La Vega Building Plans (Cl.R. 1084-1106)
Survey of Property (Cl.R. 1139)
Docket Sheet (Cl.R. 1179-85)
Demand Letter (Cl.R. 1192-93)
However, such exhibits were not "sworn to" as required by Tex. R. Civ. P.
166a. Thus, such exhibits were not competent summary judgment
evidence, and thus cannot support the trial court's judgment. Tucker v.
Atlantic Richfield Co., supra; Kotzur v. Kelly, supra.
{2} HEARSAY CANNOT SUPPORT SUMMARY JUDGMENT
In order to support a motion for summary judgment, evidence must
be admissible at a trial on the merits. Barrera v. Sanchez, 679 S.W.2d 704,
705 (Tex. App.--San Antonio 1984, no writ). Consequently, hearsay cannot
16
form the basis of a summary judgment. Horn v. First Bank of Houston, 530
S.W.2d 864, 865 (Tex. Civ. App.--Houston [14th Dist.] 1975, no writ);
Empire Finance Service, Inc. v. Western Preferred Life Ins. Co., 461 S.W.2d
489, 490 (Tex. Civ. App.--Waco 1970, writ ref'd). As the Texas Supreme
Court has remarked, "Hearsay may not be made the basis of a summary
judgment, and the trial judge should not be required to speculate as to
whether the affiant could establish the facts stated in his affidavit if he were
testifying from the witness stand.” Youngstown Sheet and Tube Co. v.
Penn, 363 S.W.2d 230, 232 (Tex. 1962).
In this regard, documents are considered hearsay. See, e.g., Powell v.
Vavro, McDonald, and Associates, L.L.C., 136 S.W.3d 762, 765 (Tex. App.--
Dallas 2004, no pet.); Farley v. Farley, 731 S.W.2d 733, 736 (Tex. App.--
Dallas 1987, no writ); Gerland's Food Fair, Inc. v. Hare, 611 S.W.2d 113, 116
(Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Likewise, all
statements contained in documents are considered hearsay. Schwartz v.
State, 120 Tex.Cr.R. 252, 46 S.W.2d 985, 987 (1931); Texas Emp. Ins. Ass'n
v. Collins, 321 S.W.2d 119, 122 (Tex. Civ. App.--El Paso 1959, writ ref'd
n.r.e.).4 As a result, Home Owner's warranty deed, Cl.R. 993-95, 1140-42,
the purported subdivision restrictions, Cl.R. 997-1057, Grupo Calqueza
4Likewise, hearsay within hearsay can be considered only if each portion is
independently admissible. Easley v. State, 986 S.W.2d 264, 269 (Tex. App.--San
Antonio 1998, no p.d.r.).
17
building plans, Cl.R. 1058-76, De La Vega building plans, Cl.R. 1084-1106,
survey of Home Owner's property, Cl.R. 1139, mediation agreement, Cl.R.
1158-61, her demand letter, Cl.R. 1192-93, along with the documents
attached to the business records affidavits, Cl.R. 1077-83, 1107-37, 1171-74,
1186-88, 1189-915 are hearsay, and therefore cannot support the summary
judgment.6 Shamrock Foods Co. v. Munn & Assocs., Ltd., 392 S.W.3d 839,
846 (Tex. App.--Texarkana 2013, no pet.).
Additionally, and in complete disregard of the prohibition of using
pleadings as summary judgment evidence,7 Home Owner relied upon her
original petition, Cl.R. 1193-51, and her second amended petition, Cl. 1162-
70, to demonstrate her entitlement to relief. Just like other documents,
pleadings constitute hearsay. Red Henry Painting Co. v. Bank of North
Texas, 521 S.W.2d 339, 343 (Tex. Civ. App.--Corpus Christi 1975, no writ);
Cline v. Southwest Wheel & Mfg. Co., 390 S.W.2d 297, 299 (Tex. Civ. App.--
5Why these documents fail to satisfy the business record exception will be explained,
infra.
6Admittedly, the trial court's judgment does not contain an express ruling on the
objections. However, Builder in its motion for new trial excepted to the trial court's
failure to rule. Cl.R. 1233. Such exception is sufficient to preserve error, Magnuson v.
Mullen, 65 S.W.3d 815, 828 (Tex. App.--Fort Worth 2002, pet. denied); Builder could
not do anything more.
7It is well settled that pleadings do not constitute summary judgment evidence. Laidlaw
Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). "[T]he factual
allegations in pleadings are not summary judgment evidence, regardless of their level of
detail, even if they are verified." Neimes v. Ta, 985 S.W.2d 132, 137 (Tex. App.--San
Antonio 1998, writ dism'd by agr.). Accordingly, such pleadings will not support a
summary judgment. Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 880 (Tex. App.--
Beaumont 2008, pet. denied).
18
Amarillo 1965, no writ); Wood v. Self, 362 S.W.2d 188, 190 (Tex. Civ. App.-
-Dallas 1962, no writ). Thus, such documents do not support the motion
for summary judgment.
Admittedly, the hearsay rule possesses numerous exceptions. Tex. R.
Evid. 803. Nevertheless, the party seeking to admit the hearsay must
establish the exception. Pjetrovic v. Home Depot, 411 S.W.3d 639, 647
(Tex. App.--Texarkana 2013, no pet.). For example, Home Owner may
understandably argue that her second amended petition, Cl. 1162-70,
mediation agreement, Cl.R. 1158-61, and bond check, Cl.R. 1185, were filed
with the county clerk's office, were certified true and correct, and thus,
cannot constitute hearsay. However, certification by a clerk does not
absolve a document from hearsay objections. Ortiz v. State, 999 S.W.2d
600, 607 (Tex. App.--Houston [14th Dist.] 1999, no p.d.r.).
Admittedly, Tex. R. Evid. 803 does provide a hearsay exception for
governmental documents. However, the documents encompassed by this
exception are documents generated by the government, not documents
filed with the government. Wright v. Lewis, 777 S.W.2d 520, 524 (Tex.
App.--Corpus Christi 1989, writ denied). "Rule 803(8), however, is appli-
cable only when the exhibit is prepared by public officials or employees
under their supervision in the performance of their official duties.
19
Documents prepared by private individuals and filed with a governmental
agency are not official documents as contemplated by Rule 803(8)." Fibre-
board Corp. v. Pool, 813 S.W.2d 658, 676 (Tex. App.--Texarkana 1991, writ
denied), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993).
Accordingly, Home Owner's pleadings, the bond check, and the mediation
agreement fall outside this exception; none of these documents were
prepared by the county clerk. Thus, the clerk's authentication does not
render these documents competent summary judgment evidence. Moore v.
Memorial Hermann Hospital System, Inc., 140 S.W.3d 870, 874 (Tex. App.-
-Houston [14th Dist.] 2004, no pet.).8
As summary judgment evidence, Home Owner submitted numerous
documents, attached to business records affidavits from the Falling Waters'
Home Owner's Association, Cl.R. 1077-83, the City of McAllen, Cl.R. 1107-
37, Armando M. Guerra & Associates, Cl.R. 1171-74, David Cazares, Cl.R.
1186-88, and Juan Zamora. Cl.R. 1189-91. Admittedly, business records
constitutes a well recognized exception to the hearsay rule. But Home
Owner repeatedly failed to satisfy the predicate.
To fall within the ambit of the business records exception, the movant
must establish:
8Home Owner's contention, i.e. relevance trumps any hearsay objection, Cl.R. 1222, is
clearly without merit.
20
1) the records were made and kept in the course
of a regularly conducted business activity;
2) it was the regular practice of the business
activity to make the records;
3) the records were made at or near the time of
the event that they record; and
4) the records were made by a person with
knowledge who was acting in the regular
course of business.
Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 783 (Tex. App.--El Paso
2009, no pet.). If this predicate is not established, then the documents
remain hearsay. Pennington v. Brock, 841 S.W.2d 127, 132 (Tex. App.--
Houston [14th Dist.] 1992, no writ). Consequently, if the movant fails to
establish this predicate, the trial court errs in considering the evidence.
Good v. Baker, 339 S.W.3d 260, 273 (Tex. App.--Texarkana 2011, pet.
denied).
In the case at bar, none of Home Owner business records affidavits
satisfy the required predicate. While the affidavits satisfied the first three
elements, they always failed to establish the fourth, i.e. the records were
made by a person with knowledge who was acting in the regular course of
business. Nowhere in these affidavits is this element even addressed.
Cl.R. 1077-78, 1107-08, 1171-72, 1186-87, 1189-90. Accordingly, the
business records exception was never established, and therefore the trial
21
court erred in considering such evidence. Good v. Baker, supra.
To shore up some of these evidentiary defects, Home Owner did
present the affidavit of Gayle King. Such affidavit states:
My name is Gayle King and I am the president of
the Falling Water Home Owners association. . . .
Under this restrictive covenant, any buyer of a lot
that is located in Falling Water must submit their
construction plans for approval prior to commen-
cing construction.
As the association president, I am responsible for
approving the construction plans prior to con-
struction. On June 7, 2010, Rocass Homes L.L.C.
submitted plans for approval that complied with the
requirements of the deed restrictions that are
property recorded with the county. The plans that
were submitted by Rocass clearly reserved a 6 foot
setback on the west side of lot 35. Additionally,
Rocass signed a letter that they received and
understood the deed restrictions and set backs.
Cl.R. 1138.
Legal conclusions in summary judgment affidavits are not competent
evidence. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984); Green
v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297 (Tex. App.--
Dallas 1994, no writ). For example, an affiant's conclusions “as to the legal
effects of [a] lease” are not competent summary judgment evidence. Howe
v. Kroger Co., 598 S.W.2d 929, 931 (Tex. Civ. App.--Dallas 1980, no writ).
In the case at bar, the King affidavit contains similar legal conclusions, i.e.
22
the plans submitted satisfied the subdivision restrictions. Cl.R. 1138.9 As a
result, such affidavit cannot sustain the summary judgment. See, Aldridge
v. De Los Santos, 878 S.W.2d 288, 297 (Tex. App.--Corpus Christi, 1994,
writ dism'd w.o.j.).
The King affidavit also suffers from another defect. As she herself
admits, Mrs. King allegedly approved the plans in question. Cl.R. 1138.
Accordingly, while she is a not a party to the litigation, she is an interested
witness; if she approved plans with the setoff was on the wrong side, fingers
can rightly be pointed at her.10 An affidavit from an interested witness
merely creates a fact issue, even if uncontradicted. Greenville Ave. State
Bank v. Lang, 421 S.W.2d 748, 751 (Tex. Civ. App.--Dallas 1967, no writ).
Thus, this affidavit cannot support the summary judgment.11
Similar problems repeat with Home Owner's attorney's fees affidavit.
This affidavit fails to mention the Arthur Andersen factors,12 explain which
factors apply, why they apply, and the fee resulting from their application.
9Home Owner completely failed to substantively respond to such defect. Cl.R. 1220-21.
10Indeed, she had been sued for her misconduct in this matter. Cl.R. 37-41. In response,
Home Owner seeks to minimize her interested nature because of timing. Cl.R. 1221.
But regardless of when such business records were created, King's credibility is at issue.
11Admittedly, an exception to this rule exists: the affidavit of an interested witness can
support summary judgment if it is clear, positive and direct, otherwise credible and free
from contradictions and inconsistencies, and could have been readily controverted.
Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Such exception does not apply,
because the De La Vega plans, which she approved, Cl.R. 1209, contradict her
statement.
12Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
23
With regard to appellate attorney's fees, only a net figure is presented,
without any explanation. Cl.R. 1174-75. Such conclusory affidavit cannot
sustain Home Owner's summary judgment burden. Eberstein v. Hunter,
260 S.W.3d 626, 630 (Tex. App.--Dallas 2008, no pet.).
{3} NO COMPETENT EVIDENCE = NO SUMMARY JUDGMENT
As previously noted, the first step in adjudicating a traditional
summary judgment is insuring the motion is supported by competent
proof. If the motion is unsupported by competent evidence, the trial court
errs in granting the motion. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 374
(Tex. 1984). In the case at bar, Home Owner's motion was not supported
by any competent proof. Her exhibits are not sufficiently sworn. Her
documents evidence are hearsay, and exceptions to the hearsay rule were
not established. And those affidavits presented are conclusory. As a result,
the summary judgment must be reversed.
[C] Ignoring Defects, Home Owner Presented Insufficient Evidence
In her motion for summary judgment, Home Owner sought recovery
for breach of contract and for liability under the Texas Residential
Construction Act, Tex. Prop. Code §27.001. Cl.R. 982-87. As clearly
demonstrated supra, Home Owner's motion never reaches first base,
because all her substantive evidence is incompetent. But even ignoring the
24
incompetency of her evidence, Home Owner still never reaches second base
in the summary judgment stadium, because her incompetent evidence fails
to establish as a matter of law all the elements of her cause of action and
recoverable damages.13
{1} NO EVIDENCE OF CONTRACT WITH HOME OWNER
When a breach of contract plaintiff seeks summary judgment, he
must prove the terms of the contract. To satisfy this burden, the plaintiff
must attach to his motion the full contract; "[n]either the trial court nor
[the reviewing] Court is free to speculate as to its contents." Sorrells v.
Giberson, 780 S.W.2d 936, 937-38 (Tex. App.--Austin 1989, writ denied).
This mandate is not satisfied by attaching a portion of the contract; instead,
the movant must attach the actual full and complete contract to his motion.
Crawford v. Pullman, Inc., 630 S.W.2d 377, 379-80 (Tex. App.--Houston
[14th Dist.] 1982, no writ). Should the plaintiff fail to attach actual full and
complete contract to his motion, he has failed to prove his entitlement to
summary judgment. Texas International Airlines v. Wits Air Freight, 608
13Admittedly, Builder's summary judgment response, Cl.R. 1195-1215, does not contain
the specificity of this brief. However, a non movant is entitled to attack the sufficiency
of a movant's summary judgment evidence for the first time on appeal. As the Texas
Supreme Court has explained, "The nonmovant has no burden to respond to a summary
judgment motion unless the movant conclusively establishes its cause of action or
defense. Summary judgments must stand on their own merits. Accordingly, the
nonmovant need not respond to the motion to contend on appeal that the movant's
summary judgment proof is insufficient as a matter of law to support summary
judgment." M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 23
(Tex. 2000).
25
S.W.2d 828, 830 (Tex. Civ. App.--Dallas 1980, no writ).
And so it is in the case at bar. As part of three summary judgment
motions, Home Owner never presented the full and complete contract
executed between the parties.14 Cl.R. 28-493, 510-977, 978-1194. While
such contract may have included terms concerning the location of the set
off, it may not, and this Court is not permitted to speculate. Sorrells v.
Giberson, supra.15 Thus, Home Owner failed to prove the existence of the
term which she claims was breached, precluding summary judgment. Id.;
Texas International Airlines v. Wits Air Freight, supra.
{2} NO ENFORCEABLE CONTRACT WITH HOME OWNER'S ASSOCIATION
Alternatively, Home Owner claimed that a contract existed between
her HOA and Builder, a contract which she could enforce as a third party
beneficiary. Cl.R. 977-78. Such contention is premised on a certification,
whereby Builder agreed that it reviewed the HOA's regulations and agreed
to their terms. Cl.R. 1080. As previously mentioned, Home Owner failed to
present competent evidence in this regard, because the HOA's business
record affidavit failed to establish the required predicate. Cl.R. 1077-78.
But even ignoring such evidentiary defects, Home Owner cannot recover on
14Such omission was pointed out to the trial court. Cl.R. 1201.
15Thus (and completely unrecognized by Home Owner, Cl.R. 1225), merely proving that
a contract exists is insufficient; the summary judgment movant must prove the term
which was breached.
26
this theory.
Every breach of contract action initially requires the existence of a
valid, enforceable contract. Doss v. Homecomings Fin. Network, Inc., 210
S.W.3d 706, 713 (Tex. App.--Corpus Christi 2006, pet. denied); Mandell v.
Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex. App.--Houston [1st
Dist.] 1991, writ denied). Completely unexplained by Home Owner herein,
Cl.R. 28-493, 510-977, 978-1194, a valid contract requires mutuality of
obligation.16
Fundamentally, a contract is an exchange of promises; each party
promises something in exchange for a reciprocal promise. Domingo v.
Mitchell, 257 S.W.3d 34, 40 (Tex. App.--Amarillo 2008, pet. denied). In
other words, for a contract to be enforceable, mutuality of obligation must
exist. In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010). Thus, “[a] contract
that does not require a party to furnish consideration, or oblige him to do
anything, lacks mutuality, is unilateral, and is unenforceable.” Watson v.
Citimortgage, Inc., 814 F.Supp.2d 726, 732 (E.D. Tex. 2011). As the Texas
Supreme Court has explained:
Mutuality of contract consists in the obligation on
each party to do, or to permit something to be done,
in consideration of the act or promise of the other.
Contracts lacking in mutuality are often termed
16Mutuality of obligation can be viewed as simply another “way of stating that there
must be valid consideration”. 1 WILLISTON ON CONTRACTS §7:14 (4th ed. 2014).
27
unilateral contracts. Mutuality of obligation is an
essential element of every enforceable agreement.
Mutuality is absent when one only of the contracting
parties is bound to perform, and the rights of the
parties exist at the option of one only. And,
conversely, a contract is not unilateral where it
contains mutual obligations binding on both parties.
. . . Reduced to its last analysis, the rule is simply
that a contract must be based upon a valid
consideration, and that a contract in which there is
no consideration moving from one party, or no
obligation upon him, lacks mutuality, is unilateral,
and unenforcible.
Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S.W. 1101,
1104 (1923).
In the case at bar, Builder's promise is easy to discern: compliance
with the HOA's regulations. Cl.R. 1080. But what exactly did the HOA
promise in return? Would it aid in surveying? Would it assist with the
construction? No; the HOA did not promise anything. In actuality, the
HOA was acting like a governmental zoning commission, merely providing
a green light to construction, but providing nothing in return.17 Thus,
mutuality of obligation for this alleged contract does not exist, rendering it
completely unenforceable. In re 24R, Inc., supra.
But even if a Home Owner presented sufficient evidence of mutuality
of obligation, she still failed to present sufficient evidence that such alleged
17The phenomenon of home owner's associations acting as arbitrary private fiefdoms is
well documented. See, e.g., McKenzie, PRIVATOPIA: HOMEOWNER ASSOCIATIONS AND THE
RISE OF RESIDENTIAL PRIVATE GOVERNMENT (1996); see also, Cl.R. 178, 232, 258, 1215.
28
contract was actually enforceable by her. Without discussing the required
evidence, Home Owner merely assumed that she was entitled to enforce the
alleged contract as a third party beneficiary. Cl.R. 983. But, as a review of
the actual law demonstrates, such assumption is not well taken.
Axiomatically, a "third party may enforce a contract it did not sign
when the parties to the contract entered the agreement with the clear and
express intention of directly benefitting the third party." Tawes v. Barnes,
340 S.W.3d 419, 424 (2011). However, a mere incidental benefit flowing
from the contract does not provide a third party standing to enforce it.
Instead, the alleged third party beneficiary must demonstrate that the
contracting parties actually intended to confer a direct benefit to the third
party. MCI Telecommications Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647,
651 (Tex. 1999). In other words, in order to enforce a contract as a third
party beneficiary, the plaintiff must establish (1) the contracting parties
intended to secure some benefit to that third party; and (2) the contracting
parties entered into the contract directly for the third party's benefit. Stine
v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002).
Parties are presumed to contract for themselves, Merit Drilling Co. v.
Honish, 715 S.W.2d 87, 92 (Tex. App.--Corpus Christi 1986, writ ref'd
n.r.e.), and thus courts presume the alleged third party beneficiary cannot
29
enforce the contract. In re SSP Partners, 241 S.W.3d 162, 170 (Tex. App.--
Corpus Christi 2007, pet. denied). Thus, third party beneficiary status
cannot be created by implication, and any reasonable doubt as to the
contracting parties' intent to confer a direct benefit on the third party
precludes recovery. Ortega v. City Nat. Bank, 97 S.W.3d 765, 772 (Tex.
App.--Corpus Christi 2003, no pet.). Furthermore, if a contract grants a
benefit to a general class of individuals, a member of such class cannot
enforce it as a third party beneficiary. Gonzalez v. City of Mission, 620
S.W.2d 918, 922 (Tex. Civ. App.--Corpus Christi 1981, no writ); see also,
Day Cruises Maritime, L.L.C v. Christus Spohn Health System, 267 S.W.3d
42, 57 (Tex. App.--Corpus Christi 2008, pet. denied).
Such principles preclude enforcement of the alleged contract by
Home Owner herein. Home Owner failed to present any summary
judgment evidence that Builder and HOA intended to directly benefit her
individually. Cl.R. 978-1194. At best, Home Owner claims membership
within the general class of beneficiaries, i.e. residents of Falling Waters
subdivision. Home Owner even admitted this. Cl.R. 983. But such
membership alone does not create third party beneficiary status. Thus,
Home Owner has failed to establish that she can enforce the alleged
contract. Day Cruises Maritime, L.L.C v. Christus Spohn Health System,
30
supra; Gonzalez v. City of Mission, supra.
{3} INSUFFICIENT EVIDENCE OF DAMAGES PRESENTED
The standard measure of damages for a breach of a construction
contract action, when destruction and rebuilding constitutes waste, is the
diminution in value. Given the nebulous nature of such damages as applied
herein, Home Owner instead measured her damages as the cost of the
settlement she entered with the neighboring landowner, along with
attendant mediation expenses and attorney's fees. Cl.R. 984-85. But as
previously noted, Home Owner failed to present competent evidence of the
settlement agreement and mediation expenses, Cl.R. 1158-61, and therefore
summary judgment is improper. But even if this Court ignores her failure
to properly prove damages, Home Owner still failed to satisfy its burden.
From a policy standpoint, inherent dangers exist whenever a litigant
can obtain recoupment of settlement monies. Guillen ex rel. Guillen v.
Potomac Ins. Co. of Illinois, 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1,
14 (2003). Aside from the possible corrosive effects on litigation, see, State
Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996), the
settling party may be too loose with his money, knowing that he may be
reimbursed in the future. Parfait v. Jahncke Service, Inc., 484 F.2d 296,
301 (5th Cir. 1973). Consequently, in this situation, the party seeking
31
recoupment of a settlement must prove that such settlement was made in
good faith and for a reasonable amount. Associated Indem. Corp. v. CAT
Contracting, Inc., 964 S.W.2d 276, 284 (Tex. 1998).18 Satisfaction of this
burden generally requires expert testimony. Amerada Hess Corp. v. Wood
Group Production Technology, 30 S.W.3d 5, 11 (Tex. App.--Houston [14th
Dist.] 2000, pet. denied).
Admittedly, Home Owner's alleged settlement with her neighbor does
not facially reek of excessiveness. Nevertheless, Home Owner failed to
present any evidence establishing either her good faith or reasonableness.
Her affidavit does not mention this issue. Cl.R. 1156-57. What she should
have done is presented the affidavit of her attorney, explaining why the
settlement was reasonable and made in good faith. Amerada Hess Corp. v.
Wood Group Production Technology, supra. But this topic is never
broached in his affidavit. Cl.R. 1175-76. Thus, summary judgment is
improper.
Furthermore, Home Owner failed to prove that her settlement is
recoverable under the RCLA. The statutes specifically provides:
In an action subject to this chapter the claimant
18This burden of proving reasonableness is properly placed upon the plaintiff both out of
fairness, since the plaintiff was the one who agreed to the settlement, and out of
practicality, since, as between the plaintiff and the defendant, the plaintiff will have
better access to the facts bearing upon the reasonableness of the settlement. Guillen ex
rel. Guillen v. Potomac Ins. Co. of Illinois, supra.
32
may recover only the following economic damages
proximately caused by a construction defect:
(1) the reasonable cost of repairs necessary to cure
any construction defect;
(2) the reasonable and necessary cost for the
replacement or repair of any damaged goods in the
residence;
(3) reasonable and necessary engineering and
consulting fees;
(4) the reasonable expenses of temporary housing
reasonably necessary during the repair period;
(5) the reduction in current market value, if any,
after the construction defect is repaired if the
construction defect is a structural failure; and
(6) reasonable and necessary attorney's fees.
Tex. Prop. Code §27.004(g). Omitted from such list are settlements.
“[I]t is settled that every word in a statute is presumed to have been
used for a purpose; and a cardinal rule of statutory construction is that each
sentence, clause and word is to be given effect if reasonable and possible.”
Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963). Thus, statutes must be
enforced as written, City of San Antonio ex rel. City Public Service Bd. v.
Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin
2009, pet. dism’d), despite any imperfections contained therein. Stockton
v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011). Similarly, the Legislature’s
33
omissions are considered significant; omitted words are presumed to have
been purposely excluded by the Legislature. Balawajder v. Texas Dept. of
Criminal Justice Institutional Div., 217 S.W.3d 20, 27 n. 6 (Tex. App.--
Houston [1st Dist.] 2006, pet. denied). Consequently (and despite any
advisability), courts are forbidden from expanding the plain language of
statutes. HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board,
235 S.W.3d 627, 658 (Tex. 2007); Treadway v. Holder, 309 S.W.3d 780,
785 (Tex. App.--Austin 2010, pet. denied). As a result, Home Owner's
failed to prove damages which can be awarded under the RCLA; settlement
is not the cost to repair.
[D] Builder Defeated Summary Judgment by Questioning Terms
Builder believes this Court's analysis can cease at this point because
Home Owner failed to satisfied to present competent summary judgment
evidence. And even if such defects are ignored, Home Owner's evidence
fails to establish, as a matter of law, a contract, enforceable by Home
Owner, the breach of which caused her to suffer recoverable damages. But
if this Court disagrees, the trial court still erred because the summary
judgment evidence is disputed concerning the alleged contract's terms.
{1} NON MOVANT DEFEATS MOTION BY CREATING A FACT ISSUE
"In a summary judgment proceeding, it is not the prerogative of the
34
court to judge the credibility of, or to determine the weight to be assigned to
the testimony given by the affidavits." Birdwell v. Long, 508 S.W.2d 466,
468 (Tex. Civ. App.--Amarillo 1974, no writ). "The summary judgment rule
is not intended to permit a trial by deposition or affidavit, and a motion for
summary judgment should not be resolved by weighing the relative
strength of conflicting facts and inferences." Fisher v. Yates, 953 S.W.2d
370, 380 (Tex. App.--Texarkana 1997), writ denied per curiam, 988 S.W.2d
730 (Tex. 1998); accord, Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557,
562 63 (1962); Drew v. Lauder, 647 S.W.2d 749, 751 (Tex. App.--Corpus
Christi 1983, writ ref'd n.r.e.).
Consequently, once a summary judgment movant has satisfied his
heavy and horrendous summary judgment burden, Lee v. McCormick,
supra, the trial court must nevertheless deny the motion if evidence of
probative force exists on the material questions presented, such that
reasonable men may differ as to the controlling facts. Portnow v. Berg, 593
S.W.2d 843, 845 (Tex. Civ. App.-- Houston [1st Dist.] 1980, no writ). In
other words, if the non movant has presented sufficient evidence which
would prevent a direct verdict against him, the summary judgment must be
denied. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20 (Tex. 1963).
Likewise, the summary judgment must be denied when the affidavits or
35
other evidence are contradictory, Tesoro Petroleum Corp. v. Coastal
Refining & Marketing, Inc., 754 S.W.2d 764, 767 (Tex. App.--Houston [1st
Dist.] 1988, no writ), render the movant's evidence ambiguous, Ellert v.
Lutz, 930 S.W.2d 152, 155 (Tex. App.--Dallas 1996, no writ), or present
questions concerning credibility. Ballis v. Urban National Bank, 770
S.W.2d 590, 592 (Tex. App.--Houston [14th Dist.] 1989, no writ). In
making this showing, the non movant may rely on the summary judgment
evidence presented by the movant. M.D. Anderson Hospital and Tumor
Institute v. Willrich, supra. Any significant fact issue precludes the entry
of a summary judgment. Roberts v. Geo Source Drilling Services, Inc., 757
S.W.2d 48, 51 (Tex. App.--Houston [1st Dist.] 1988, no writ).19
In this regard, the presentation of direct evidence is not the exclusive
method of creating a fact issue; a fact issue may be created by presenting
circumstantial evidence. “The fact that evidence is circumstantial does not
render it incompetent nor destroy its probative force. Indeed, evidence of
this character may be, and often is, as strong as direct and positive
evidence.” Brazos River Conservations & Reclamation Dist. v. Harmon, 178
S.W.2d 281, 292 (Tex. Civ. App.—Eastland 1944, writ ref’d). “Any ultimate
fact may be proved by circumstantial evidence”. State v. $11,014.00, 820
19Summary judgments are not determined by the weight method, i.e. whomever attaches
more paper to his motion wins.
36
S.W.2d 783, 785 (Tex. 1991). Such evidence can be utilized to create a fact
issue, precluding summary judgment. See, Digby v. Texas Bank, 943
S.W.2d 914, 923 (Tex. App.--El Paso 1997, writ denied); Pena v. Neal, Inc.,
901 S.W.2d 663, 671 (Tex. App.--San Antonio 1995, writ denied); Motel
Enterprises, Inc. v. Nobani, 784 S.W.2d 545 (Tex. App.--Houston [1st Dist.]
1990, no writ).
{2} BUILDER CREATED FACT ISSUE BY DISPUTING CONTRACTUAL TERMS
As previously noted, in order to prevail on a motion for summary
judgment, the plaintiff must prove the existence of the contract. As part of
this burden, the movant must also prove the terms of the contract.
Deverian v. Aviall of Texas, Inc., 1991 WL 218799 at 4 (Tex. App.--Dallas
1991, no writ); United Parcel Service v. Helen of Troy Corp., 536 S.W.2d
415, 417 (Tex. Civ. App.--El Paso 1976, no writ). Concomitantly, if the non-
movant presents evidence of a dispute in the terms of the contract, then he
has created a fact issue, precluding summary judgment. See, Ward v.
Crow, 476 S.W.2d 77, 80 (Tex. Civ. App.--El Paso 1972, no writ).
According to Home Owner, the contract was created by acceptance of
her house plans by the HOA. Home Owner claims Grupo Calqueza's plans
were approved (and thus created the terms). However, Builder directly
contradicts this version of the facts. Instead, it presented evidence that the
37
De La Vega house plans (with the lack of offset) were approved by the HOA.
Cl.R. 1210.20 Thus, the terms of the contract were no offset. This creates a
fact issue, precluding summary judgment. Hall v. Harris County Water
Control & Improvement Dist., 683 S.W.2d 863, 867 (Tex. App.--Houston
[14th Dist.] 1984, no writ).
Furthermore, Builder cast doubt on Home Owner's and her HOA's
assumptions. Both Home Owner and her HOA claimed that the setoff on
the west side was established in the formation of the subdivision. But
Builder actually examined the relevant documents. First, the plat for the
Falling Waters subdivision did not contain a setoff on the west side. Cl.R.
1205-06, 1210. Second, the survey made of Home Owner's property before
building commenced did not contain a setoff on the west side. Cl.R. 1204.
Third, the HOA's foundational documents did require a setoff on the west
side. Cl.R. 1209.21 Thus, if these documents created the contract, then the
terms of the contract are disputed.
The location of a setoff on the east side (as opposed to the west) is
confirmed by circumstantial evidence. On the east side of Home Owner's
lot is an alley way. Cl.R. 1204. Given the relatively small size of the
20Such evidence also renders HOA's affidavit ambiguous; at no point does it ever
expressly state which plans were approved by HOA.
21Such documents were also ambiguous regarding the location of the zero set off. Cl.R.
1215.
38
subdivision's lots, Cl.R. 1208, 1211, common sense dictates that any
dwelling be away from the alley. The reasonable conclusion (especially in
light of the zero setoff), and the one drawn by Builder is that the edifice on
Home Owner's lot would contain a party wall. Cl.R. 1210.
Finally, Builder has created a question about causation. Under the
HOA's plans, Home Owner, not Builder, was responsible for the submitting
acceptable plans. Home Owner presented the De La Vega plans, which did
not contain the setoff. Builder merely constructs homes; it does not design
them. Builder complied with the plans provided to it. Cl.R. 1211. As a
result, Home Owner herself is responsible for any wrong location in the
setoff.
[E] Recovery Under Texas Residential Liability Act
The Texas Legislature initially enacted the Residential Construction
Liability Act because the Deceptive Trade Practices Act was being “used as a
sword to litigate against builders.” Jackson, Unlicensed to Drill: Proposed
Renovations to the Texas Residential Construction Commission Act, 36 ST.
MARY'S L.J. 753, 754 (2005). The statute's intent was to “provide an
‘appropriate balance’ between the residential contractor and owner, with
respect to the resolution of construction disputes.” Id. at 761.
What the RCLA does not do is create a cause of action or derivative
39
liability. Tex. Prop. Code §27.005. Instead, the RCLA superimposes
modifications on existing causes of action in the construction context.
Gentry v. Squires Construction, Inc., 188 S.W.3d 396, 404 (Tex. App.--
Dallas 2006 no pet.). It changes the established standard for causation.
Tex. Prop. Code §27.003; Tex. Prop. Code §27.006. It limits the damages
which would be otherwise available. Tex. Prop. Code §27.004(g). And it
provides applicable defenses for both contractors and subcontractors. Tex.
Prop. Code §27.003. Consequently, this statute does not provide Home
Owner another avenue for relief; instead, she is still required to prove her
breach of contract claim.
But this is where Home Owner's RCLA claims fail. As clearly
demonstrated herein, Home Owner cannot prevail on her breach of
contract claims. She failed to present competent summary judgment
evidence. She failed to prove the existence of the disputed term. And the
terms remains disputed. As a result, the trial court erred in granting any
relief under the RCLA.
CONCLUSION AND PRAYER
The Texas Supreme Court held that summary judgments should not
be utilized for clearing dockets: "The summary judgment is to be applied
with caution and will not be granted where there is doubt as to the facts.
40
Although the prompt disposal of judicial business is greatly desired, it is not
the main objective." In Re Price's Estate, 375 S.W.2d 900, 904 (Tex. 1964).
In the case at bar, it is obvious that the trial court used summary judgment
used as a docket clearing device, because her summary judgment evidence
was incompetent (despite its massacre of thousands of trees) and because
Home Owner's evidence was disputed, both directly and circumstantially.
But because the trial court's decision is not entitled to any deference, it
must be reversed.
WHEREFORE, PREMISES CONSIDERED, ROCASS L.L.C. d/b/a
ROCASS HOMES, Appellant in the above styled and numbered cause,
respectfully prays that the summary judgment of the trial court be reversed,
and for all other and further relief, either at law or in equity, to which
Appellant shows itself justly entitled.
Respectfully submitted,
__/s/_Thomas G. Rayfield_____
Thomas G. Rayfield
State Bar No. 16615825
1300 North Tenth Street, Suite 300
McAllen, Texas 78501-4392
Telephone (956) 994-1155
Telecopier (956) 994-1148
CERTIFICATE OF COMPLIANCE
I, Thomas G. Rayfield, do hereby certify that the above and fore-
41
going was generated using Word 2007 utilizing 14 point and contains 9146
words.
BY:__/s/_Thomas G. Rayfield_____
Thomas G. Rayfield
CERTIFICATE OF SERVICE
I, Thomas G. Rayfield, do hereby certify that I have caused to be
delivered a true and correct copy of the above and foregoing document to
Appellant's Counsel of Record, Armando Guerra, by regular mail, hand
delivery and/or electronic delivery on this the 17th day of October, 2015.
BY_/s/_ Thomas G. Rayfield__
Thomas G. Rayfield
42