Calletano "Cano" Vera and Pamela Vera v. Civron Petroleum Resources, LLC ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00310-CV
Calletano “Cano” VERA and Pamela Vera,
Appellants
v.
CIVRON PETROLEUM RESOURCES, LLC,
Appellee
From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 14-05-0332-CVA
Honorable Russell H. Wilson, Judge Presiding
Opinion by: Jason Pulliam, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: December 14, 2016
REVERSE AND REMAND
INTRODUCTION
In this appeal, Calletano and Pamela Vera challenge the trial court’s granting of Civron
Petroleum Resources’s (“Civron”) no-evidence motion for summary judgment. Among other
arguments, the Veras contend the trial court erred because they presented sufficient summary
judgment evidence to raise a genuine issue of material fact to preclude summary judgment.
04-16-00310-CV
We agree, and therefore, conclude the trial court erred by granting the no-evidence
summary judgment motion. Thus, we reverse the trial court’s judgment and remand for further
proceedings consistent with this opinion.
BACKGROUND
This action arose from a contract executed on July 10, 2006, and signed by the Veras and
Regency Energy, Inc. under which the Veras allowed Regency to construct, maintain, and operate
a pipeline across their property in exchange for an initial payment of $3,500 and annual payments
of $7,000 (hereinafter referred to as “the Right of Way Agreement”). Civron was neither
mentioned within nor signed this contract. On September 16, 2009, an amended agreement (“the
Amendment”) was executed. It is undisputed that the Amendment retained all original terms and
conditions of the Right of Way Agreement except the annual payment was reduced from $7,000
per year to $5,500 per year and the yearly payment was required to be paid even if the pipeline is
not utilized. The Amendment was signed by Royis Ward, as representative of Regency, and by
Carl Glenn, as representative of Civron. The Amendment does not contain either of the Veras’
signatures.
On May 1, 2014, appellants Calletano and Pamela Vera filed suit against Civron and other
parties asserting breach of contract. Civron was properly served on May 8, 2014. On June 24,
2014, Don Wyper, the President of Civron and a non-attorney, filed a general denial on behalf of
Civron, but failed to serve this answer on counsel for the Veras. On September 20, 2015, the Veras
filed a motion for no-answer default judgment, setting the matter for a hearing on October 7, 2015.
On September 25, 2015, attorney Tomas Ramirez III wrote and sent a letter to the Veras’ attorney
in which he purported to represent Civron and asserted a general denial was filed on June 24, 2014.
Ramirez did not enter an appearance for Civron and did not appear at the default judgment hearing
on October 7, 2015. At the hearing, the Court reset the matter to November 16, 2015, and on that
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date, again reset the matter for hearing on January 6, 2016. Subsequently, on November 24, 2015,
Tomas Ramirez entered an appearance as counsel for Civron and simultaneously filed a “First
Amended Answer” and a no-evidence motion for summary judgment.
The Veras objected to the no-evidence motion for summary judgment asserting they were
not afforded adequate time for discovery to respond to the motion. The Veras also objected to the
motion because it contained fatal errors, such as, it was conclusory, failed to state that an adequate
time for discovery had passed and failed to specify which element of the Veras’ cause of action
was not supported by evidence. Finally, the Veras contended the motion should be denied because
the evidence they presented raised a genuine issue of material fact whether Civron was a party to
and obligated by the Amendment and whether Civron breached the contract.
The trial court held a hearing on Civron’s no-evidence motion for summary judgment on
February 22, 2016, and signed an order granting the motion on the same day. The order states that
the trial court considered “evidence presented”. The Veras perfected this appeal.
ANALYSIS
Standard of Review and Governing Law
A no-evidence motion for summary judgment is essentially a motion for a pretrial directed
verdict. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
After adequate time for discovery, a party may move for summary judgment on the ground that
there is no evidence of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The party need not present
summary judgment evidence, but must state the elements as to which there is no evidence. Id.;
Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3–4 (Tex. App.—San Antonio 2001, pet. denied).
Once a no-evidence motion has been filed in accordance with rule 166a(i), the burden shifts
to the nonmovant to bring forth evidence that raises a fact issue on the challenged elements.
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Holloway v. Texas Elec. Util. Const., Ltd., 282 S.W.3d 207, 211 (Tex. App.—Tyler 2009, no pet.);
Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316–17 (Tex. App.—Houston [14th Dist.] 1999, no
pet.). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a
scintilla of probative evidence to raise a genuine issue of material fact as to the challenged essential
element of the nonmovant’s claim. TEX. R. CIV. P. 166a(i); see Macias, 988 S.W.2d at 317. If the
evidence supporting a finding rises to a level that would enable reasonable, fair minded persons to
differ in their conclusions, then more than a scintilla of evidence exists. Burroughs Wellcome Co.
v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Macias, 988 S.W.2d at 317. Less than a scintilla of
evidence exists when the evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983).
We review a trial court’s granting of a summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We will uphold a no-evidence summary
judgment only if the summary judgment record reveals no evidence of the challenged element, i.e.,
(a) there is a complete absence of evidence as to the challenged element; (b) the evidence offered
to prove the challenged element is no more than a mere scintilla; (c) the evidence establishes
conclusively the opposite of the challenged element; or (d) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove the challenged element.
Holloway, 282 S.W.3d at 210–11; Taylor–Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex.
App.—San Antonio 2000, pet. denied). In reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, indulging every reasonable inference and resolving any
doubts in the non-movant’s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157
(Tex. 2004).
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Application
The four elements of a breach of contract claim are: (1) the existence of a valid contract;
(2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to
the plaintiff resulting from that breach. MacIntire v. Armed Forces Benefit Ass’n, 27 S.W.3d 85,
88–89 (Tex. App.—San Antonio 2000, no pet.). “The threshold question is whether a contract
exists.” Id.In its motion, Civron did not assert specifically which elements of the Vera’s breach of
contract cause of action it contended held no evidentiary support. Instead, Civron stated generally,
“[n]o evidence exists in the following areas without which this breach of contract claim cannot
stand:….” 1 The Veras contend on appeal Civron’s motion for summary judgment was defective
for this reason, and therefore, should not have been granted. For the sake of efficiency, we will
assume without deciding that Civron’s no-evidence motion was filed in accordance with Rule
166a(i). We will, thereby, liberally construe the nine “areas” listed in Civron’s motion to challenge
two elements of the breach of contract cause of action: existence of a contract and breach of the
contract.
The Veras assert the trial court erred by granting Civron’s no-evidence motion for summary
judgment because they presented more than a scintilla of evidence to raise a genuine issue of
material fact whether a contract existed between Civron and the Veras and whether Civron
1
The nine “areas” listed are: (1) no evidence exists that Civron was ever a party to the original contract; (2) no evidence
exists that the individual who signed the Amendment on behalf of Civron had any legal authority to enter into contracts
on behalf of Civron; (3) no evidence exists that Civron received any consideration for signing the Amendment, or
benefited in any way from the signing of the Amendment; (4) no evidence exists that either the original contract or
the Amendment required any person or entity to make the annual right of way payments, except for Regency Energy,
its successors and assigns; (5) no evidence exists that Civron was ever a successor or assign of Regency Energy; (6)
no evidence exists that the Amendment altered any of the original contract terms with regards to what person or entity
was required to make the annual right of way payments; (7) no evidence exists that the Amendment now requires
Civron to make the annual right of way payments; (8) no evidence exists that Civron had any duties under the original
contract; and (9) no evidence exists that Civron had any duties or responsibilities under the Amendment.
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breached this contract. The Veras contend the evidence presented in their amended response raises
a genuine issue of material fact whether Civron was a party to the Amendment, whether Civron
was obligated to make payments under the Amendment, whether Civron’s action in making the
2009 payment exemplified its undertaking of this contractual obligation, whether Civron breached
the agreement by discontinuing payments and whether the Veras incurred damages as a result.
The Veras attached evidence to their amended response to Civron’s no-evidence motion
for summary judgment which included an affidavit from Pamela Vera, the subject Right of Way
Agreement, the Amendment and Civron’s responses to the Veras’ requests for admissions.
Even though the Right of Way Agreement was not signed by a Civron representative, the
Amendment, which retained all original terms with some modification, is signed by Carl R. Glen
as representative of “Civron Petroleum Res., LLC.” In its answers to requests for admissions,
Civron admitted that it made the first $5,500 payment under the Amendment, the check was written
to Calletano and Pamela Vera, was drafted from Civron’s account, was signed by Victoria Wyper
and contained the notation for “Right-of-way”. Finally, the Veras also submitted summary
judgment evidence of the check written by Civron and the business cards of Carl Glen, as “VP
Field Operations” and Don Wyper, as “President” of Civron Petroleum Resources.
Taking as true all evidence favorable to the Veras, the nonmovants, and indulging all
reasonable inferences and resolving all doubts in their favor, the summary judgment evidence
consists of more than a scintilla of evidence to create a fact issue whether Civron was a party to
the Amendment, was contractually obligated by the Amendment and whether Civron breached the
Amendment contract. The evidence is undisputed that Carl Glenn was an employee and
representative of Civron and signed the Amendment as Civron’s representative. Although Civron
contends Glenn had no authority to bind it by contract, the evidence at least raises a genuine issue
of material fact whether Glenn’s signature bound Civron to the contractrual obligations therein.
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The evidence is undisputed that Civron paid the Veras the 2009 financial obligation under the
contract, but failed to make the remaining payments. Based upon this presentation of evidence, a
genuine issue of material fact exists regarding whether Civron was a party to the Amendment,
incurred contractual obligations therein, fulfilled a portion of its contractual obligation and then
failed to fulfill the remaining obligations.
Because the Veras presented more than a scintilla of evidence to raise a genuine issue of
material fact whether Civron was a party to the Amendment and breached the Amendment, we
conclude the trial court erred by granting Civron’s no evidence motion for summary judgment.
Accordingly, we reverse the trial court’s judgment and remand this cause for further proceedings
consistent with this opinion. The Veras’ costs of appeal are assessed against Civron.
Jason Pulliam, Justice
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