Del Sol Homes, LLC and Jose De La Fuente v. Hidalgo County Head Start Program by and Through Hidalgo County ( 2019 )

NUMBER 13-17-00710-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DEL SOL HOMES, LLC AND JOSE
DE LA FUENTE, Appellants,
v.
HIDALGO COUNTY HEAD START
PROGRAM BY AND THROUGH
HIDALGO COUNTY, Appellee.
On appeal from the County Court at Law No. 1
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Tijerina
Memorandum Opinion by Justice Tijerina
Appellee Hidalgo County Head Start (HCH) sued appellants Del Sol Homes, LLC
and Jose De La Fuente (collectively, Del Sol) for breach of contract, and Del Sol
counterclaimed for the same. The trial court granted HCH’s motion for summary
judgment in opposition to Del Sol’s counterclaim and its motion for summary judgment on
its breach of contract claim. By two issues, Del Sol contends that the trial court erred in
granting both summary judgments. We affirm.
I. BACKGROUND
A. HCH’s Original Petition and Del Sol’s Counterclaim
On or about October 24, 2012, HCH and Del Sol entered into a contract for the
relocation of a building, which Del Sol was to complete by December 31, 2012. Del Sol
substantially completed the project on April 12, 2013, four months after the contract
deadline. On September 12, 2013, HCH filed its original petition against Del Sol,
asserting it breached the contract by failing to timely relocate the building. Del Sol filed
an answer and counterclaim alleging HCH breached the contract by “changing the terms
of the contract and requesting extra work without following proper procedures.” According
to Del Sol, HCH Program Director Teresa Flores changed the plans of relocation after its
bid had been accepted and approved by a board of directors, which resulted in delays.
B. HCH’s Motion for Summary Judgment in Opposition to Del Sol’s
Counterclaim
On May 23, 2014, HCH moved for a traditional and no evidence summary
judgment asserting there was no evidence to substantiate Del Sol’s counterclaim that
HCH breached the contract by: altering the terms of the contract; requesting extra work
without following proper construction procedures; authorizing any plans which required
approval by the commissioner’s court or policy council board; or threatening appellants.
To support its motion, HCH attached the affidavits of Flores and Assistant Director Steven
McGarraugh along with the contract in question and Del Sol’s original bid sheet.
C. Del Sol’s Response to HCH’s Motion for Summary Judgment
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On June 25, 2014, Del Sol filed a response to HCH’s no evidence summary
judgment motion, arguing that summary judgment should be denied “because [HCH] has
not provided any summary judgment proof . . . .” To support its response, Del Sol
attached De La Fuente’s affidavit, in which he averred: “The project was not completed
by December 31, 2012, mainly because of the fault of [HCH] in changing the plans after
[HCH] had approved the bids submitted by [Del Sol].” According to De La Fuente, this
“raises a genuine issue of material fact as to whether [HCH] breached the contract by
changing the plans after [HCH] had accepted the bid from [appellants].” After reviewing
the pleadings, the trial court granted HCH’s motion for summary judgment in opposition
to Del Sol’s counterclaim. On June 20, 2017, Del Sol asked the trial court to reconsider
its February 11, 2015 order granting HCH’s no evidence summary judgment as to Del
Sol’s counterclaim.
D. HCH’s Traditional Motion for Summary Judgment
On February 12, 2015, HCH filed a traditional motion for summary judgment on its
claim for breach of contract, claiming that as a matter of law, Del Sol breached the
contract, and HCH incurred the following damages: delay damages provided for in the
contract; costs for a lease agreement with another entity; costs of electrician services;
and attorney fees. As evidence to support its summary judgment motion, HCH attached
the contract, the affidavit of the Assistant Program Director, the electrician’s bill of
services, and its attorney’s affidavit.
Del Sol responded by asserting that there were genuine issues of material fact as
to: whether HCH breached the contract; whether HCH threatened Del Sol; whether HCH
failed to provide necessary water meters; whether HCH approved the changes after
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December 31, 2012; whether HCH provided electrical plans in May; whether rain delays
prevented Del Sol from completing the work; and whether HCH failed to pay Del Sol. It
attached another affidavit from De La Fuente to support its response.
E. Trial Court’s Ruling
On December 1, 2017, the trial court denied Del Sol’s motion for reconsideration
on granting HCH’s no evidence summary judgment. It subsequently granted HCH’s
traditional motion for summary judgment on December 5, 2017, issued a judgment
against Del Sol for consequential damages and attorney’s fees, and disposed of all
claims. This appeal followed.
II. NO EVIDENCE SUMMARY JUDGMENT
By its first issue, Del Sol contends the trial court erred by granting HCH’s no
evidence summary judgment in opposition of Del Sol’s counterclaim.
A. Standard of Review
We review the grant of summary judgment de novo. Ortega v. City Nat’l Bank, 97
S.W.3d 765, 771–72 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (op. on reh’g).
We will affirm a summary judgment “if any of the theories presented to the trial court and
preserved for appellate review are meritorious.” Joe v. Two Thirty-Nine J.V., 145 S.W.3d
150, 157 (Tex. 2004).
A motion for summary judgment may be brought on no evidence or traditional
grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no evidence summary judgment
is equivalent to a motion for pretrial directed verdict. Mack Trucks, lnc. v. Tamez, 206
S.W.3d 572, 581 (Tex. 2006); Ortega, 97 S.W.3d at 772. Such a motion should be
granted if there is no evidence of at least one essential element of the claimant’s cause
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of action. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). The burden
of producing evidence is entirely on the non-movant; the movant has no burden to attach
any evidence to the motion, and if the non-movant produces evidence raising a genuine
issue of material fact, summary judgment is improper. See TEX. R. CIV. P. 166a(i). All
that is required of the non-movant is to produce a scintilla of probative evidence to raise
a genuine issue of material fact on the challenged element. Forbes, lnc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Ortega, 97 S.W.3d at 772. “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.’” Ortega, 97 S.W.3d at 772 (quoting Kindred
v. Con/Chem, lnc., 650 S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172.
Conversely, more than a scintilla of evidence exists when reasonable and fair-minded
individuals could differ in their conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97
S.W.3d at 772 (citing Transp. lns. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). ln
determining whether the non-movant has produced more than a scintilla of evidence, we
review the evidence in the light most favorable to the non-movant, crediting such evidence
if reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 825, 827
(Tex. 2005).
B. Discussion
HCH moved for summary judgment on Del Sol’s counterclaim in part on the basis
that there was no evidence that HCH breached the contract. Thus, the burden was
entirely on Del Sol to produce evidence on the challenged element of its breach of
contract claim. See TEX. R. CIV. P. 166a(i). Such a claim requires proof of the following
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elements: (1) the existence of a valid contract; (2) performance or tendered performance
by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff
resulting from the breach. Doss v. Homecoming Fin. Network, Inc., 210 S.W.3d 706,
713 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied); Abraxas Petroleum Corp.
v. Hornburg, 20 S.W.3d 741, 758 (Tex. App.—El Paso 2000, no pet.). 1
In its response to HCH’s no evidence summary judgment motion, Del Sol argued
that HCH’s motion “should be denied because [HCH] has not provided any summary
judgment proof to support its Motion for Summary Judgment . . . .” However, HCH was
not required to provide any summary judgment proof to support its no evidence summary
judgment motion. See TEX. R. CIV. P. 166a(i). Rather, Del Sol was required to produce
at least a scintilla of probative evidence to raise a genuine issue of material fact on each
element of its breach of contract claim. See Forbes, 124 S.W.3d at 172.
Del Sol’s response was one sentence long: the affidavit attached “raises a
genuine issue of material fact as to whether [HCH] breached the contract by changing the
plans after [HCH] had accepted the bid from [Del Sol].” Del Sol, however, did not
elaborate how the alleged change in plans resulted in a breach. Del Sol attached De La
Fuente’s affidavit in which De La Fuente stated: “Director, Teresa Flores, changed the
original plans after the bid submitted by [Del Sol] had been approved by [HCH],” but Del
Sol did not provide any proof or evidence of how the change in plans resulted in HCH
breaching the contract. Del Sol did not identify any contract term violated by Flores’s
alleged actions. Although De La Fuente claims that the alleged change was a breach
resulting in “more work, costs, and expenses” to Del Sol, it provided no proof that the
1 The only element in dispute is who allegedly breached the contract.
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change caused more work or expenses. To have raised a fact issue, Del Sol needed to
identify what provision of the contract HCH allegedly breached and explain the
significance of its evidence in relation to its claim. Instead, De La Fuente’s affidavit
contains conclusory assertions that Del Sol did not complete the project on time “mainly
because of the fault of [HCH].” Affidavits consisting only of conclusions are insufficient to
raise an issue of fact. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)
(per curiam) (stating that “conclusory affidavits are not enough to raise fact issues”);
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). The affidavit must set forth
such facts as would be admissible at a conventional trial on the merits, see TEX. R. CIV.
P. 166a(f) (“affidavits . . . shall set forth such facts as would be admissible in evidence”),
and must be direct, unequivocal, and controvertible. Brownlee, 665 S.W.2d at 112.
On appeal, Del Sol also claims HCH’s change resulted in the need for Del Sol to
perform additional work; HCH did not follow proper construction procedures in altering
the contract; and it was HCH’s fault that Del Sol failed to timely comply with deadlines.
However, in the trial court, Del Sol failed to raise these contentions in response to HCH’s
no evidence summary judgment motion. The extent of Del Sol’s argument to defeat
HCH’s no evidence summary judgment motion was that HCH “breached the contract by
changing the plans after [HCH] had accepted the bid from [Del Sol].” We may not
consider grounds for reversal of a summary judgment that were not expressly presented
to the trial court by written response to the motion. See TEX. R. CIV. P. 166a(c) (“Issues
not expressly presented to the trial court by written motion, answer or other response
shall not be considered on appeal as grounds for reversal.”); McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). Thus, the trial court did not err in
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granting HCH’s no evidence summary judgment on Del Sol’s claim for breach of contract.
Del Sol’s first issue is overruled.
III. TRADITIONAL SUMMARY JUDGMENT
By its second issue, Del Sol contends the trial court erred by granting HCH’s
motion for summary judgment on HCH’s breach of contract claim.
A. Standard of Review
When reviewing a traditional motion for summary judgment, we must determine
whether the movant met its burden to establish that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant
bears the burden of proof, and all doubts about the existence of a genuine issue of
material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at
215. We take as true all evidence favorable to the non-movant, and we indulge every
reasonable inference and resolve any doubts in the non-movant’s favor. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The evidence raises a
genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions
in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 755 (Tex. 2007) (per curiam). When, as in this case, the trial court does
not specify in the order granting summary judgment the grounds upon which the trial court
relied, we must affirm the summary judgment if any of the independent summary
judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).
B. Discussion
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In its motion, HCH argued that as a matter of law Del Sol breached the contract by
not timely completing construction, and Del Sol concedes this fact. As evidence, HCH
attached the duly executed contract which incorporated Del Sol’s original bid. The
contract provided that Del Sol was to complete the project by December 31, 2012 and
“no amendment, modification or alteration of terms shall be binding unless the same is in
writing, and duly executed by the parties.” Furthermore, because Del Sol did not complete
the project on time, HCH had to enter into a lease agreement with another entity, resulting
in damages. Moreover, the summary judgment evidence provided that HCH engaged the
services of an electrician to finish the project. HCH presented the contract, Del Sol’s bid,
bills, invoices, and affidavits, purportedly showing Del Sol breached the contract. Del Sol
does not contend that this evidence is insufficient to prove HCH’s breach of contract claim.
After reviewing HCH’s summary judgment evidence, we conclude HCH met its initial
summary judgment burden of showing that that it is entitled to judgment as a matter of
law on its breach of contract claim because Del Sol did not complete the project by
December 31, 2012 as the contract required. See TEX. R. CIV. P. 166a. Accordingly, the
burden shifted to Del Sol to raise a fact issue sufficient to defeat summary judgment. See
id.
In response to HCH’s traditional motion for summary judgment and on appeal, Del
Sol, again, makes the bare assertion that a genuine issue of material fact exists on HCH’s
breach of contract claim. Like its response to HCH’s no evidence summary judgment
motion, Del Sol generally refers to De La Fuente’s affidavit. By one sentence, it continues
to assert that Del La Fuente’s affidavit “raise[s] genuine issues of material fact,” and that
is the extend of its argument. Other than the general summary judgment standards, Del
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Sol cited no authority, does not specifically state the elements of the claim being attacked,
or provide any analysis as to why De La Fuente’s affidavit raises a fact issue as to HCH’s
claim. By failing to make any substantive analysis or argument, Del Sol waived its
contention that there is a fact issue as to who breached the contract. See TEX. R. APP.
P. 38.1(i) (providing that appellant’s brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and the record); Sunnyside
Feedyard, L.C. v. Metropo. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.—Amarillo 2003,
no pet.) (recognizing that the failure to either cite authority or advance substantive
analysis waives an issue on appeal). Accordingly, we overrule Del Sol’s second issue.
C. Summary
Because Del Sol failed to present evidence of HCH’s alleged breach in its breach
of contract counterclaim, we affirm the trial court’s grant of no evidence summary
judgment in favor of HCH on Del Sol’s counterclaim. Further, because HCH met its
burden of conclusively establishing its breach of contract claim as a matter of law and Del
Sol failed to present evidence raising a fact issue on any element of the claim, we affirm
the trial court’s grant of summary judgment in favor of HCH on its claim.
IV. CONCLUSION
We affirm the final summary judgment of the trial court.
JAIME TIJERINA,
Justice
Delivered and filed the
7th day of November, 2019.
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