Consolidated Healthcare Services, LLC D/B/A A1 Imaging Centers v. Mainland Shopping Center, LTD. ( 2019 )

Motion to Dismiss Denied, Affirmed and Majority and Dissenting Opinions
filed December 19, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00189-CV
CONSOLIDATED HEALTHCARE SERVICES, LLC D/B/A A1 IMAGING
CENTERS, Appellant
V.
MAINLAND SHOPPING CENTER, LTD., Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2016-66745
MAJORITY OPINION
Appellant Consolidated Healthcare Services, LLC, d/b/a A1 Imaging
Centers (Consolidated), appeals the final summary judgment granted in favor of
appellee, Mainland Shopping Centers, Ltd. (Mainland), on its breach of contract
cause of action. In addition to arguing that the trial court did not err when it
granted its motion for summary judgment, Mainland asserts that this court does not
have jurisdiction over this appeal because Consolidated filed its notice of appeal
too late. We conclude that we have jurisdiction to consider Consolidated’s appeal.
We also hold that the trial court did not err when it granted Mainland’s motions for
summary judgment. We therefore affirm the trial court’s final judgment.
BACKGROUND
Consolidated’s predecessor-in-interest leased a space in a shopping center
managed by Mainland’s predecessor-in-interest. Eventually, Consolidated fell
behind in its rent payments. To resolve the delinquent rent issue, the parties
entered into the “Agreement of Termination and Mutual Release of Lease”
(Agreement).
In the Agreement, in exchange for the termination of the lease, Consolidated
agreed to pay Mainland $37,375 divided into six equal payments, with a final
balloon payment due on April 30, 2016. The parties also agreed that Consolidated
had until that same day to sell and remove an MRI scanner located inside the
leased space. The Agreement additionally provided that “the net proceeds of sale
of the MRI Scanner in the Leased Premises (net of all costs of sale including but
not limited to construction costs to remove the MRI Scanner and repair/rebuild the
Leased Premises) shall be applied to offset the Settlement Payment.” The
Agreement also stated that if the MRI was not removed by the April 30 deadline,
Mainland could “sell or discard the MRI Scanner as [Mainland deemed] fit.” It
further provided that Mainland was “entitled to reimbursement from
[Consolidated] for any costs incurred in the removal of the MRI Scanner from the
Leased Premises (including costs to repair/rebuild the Leased Premises).”
Consolidated also agreed that it would indemnify Mainland “for any costs resulting
from removal of the MRI Scanner.” Finally, the Agreement gave Mainland “sole
discretion to consent to or deny any proposed sale of the MRI Scanner,” but
Mainland could not unreasonably withhold that consent.
2
Consolidated made only the first two payments called for by the Agreement.
In addition, Consolidated was unable to find a purchaser for the MRI by the April
30 deadline. Mainland filed suit alleging that Consolidated had breached the
Agreement. Mainland alleged that it had incurred damages totaling at least
$31,125 as a result of Consolidated’s breach. Mainland also sought attorney’s
fees. During discovery, Mainland designated a construction expert and disclosed
that the expert would testify that it would cost about $60,000 to remove the MRI
from the leased space and then rebuild the exterior wall that would have to be
demolished to accomplish the removal.1
Mainland eventually filed a traditional motion for summary judgment on its
breach of contract cause of action. In the motion Mainland asserted it had
established as a matter of law that Consolidated had breached the Agreement, and
also that Mainland had suffered $91,097.67 as a result of the breach.2
Consolidated simultaneously filed an amended answer and a response to
Mainland’s motion for summary judgment. In the amended answer Consolidated
added the affirmative defense of failure to mitigate damages and also alleged that it
was entitled to an offset based on the value of the MRI in Mainland’s possession.
Consolidated argued in its summary judgment response that Mainland’s evidence
was insufficient to establish it breached the contract as a matter of law because
Mainland’s affidavits were self-serving and not easily controverted. Consolidated
also included a reference to its newly-added affirmative defense of failure to
mitigate damages. Consolidated did not, however, attach any evidence to its
summary judgment response.
1
It was undisputed that removal of the MRI from the leased space would require the
removal, and subsequent rebuilding, of the back exterior wall of the leased space.
2
The damages were broken down as $31,125 in unpaid settlement payments required by
the Agreement and $59,972.67 for the cost of removing the MRI as established by an affidavit
from Mainland’s construction expert.
3
The trial court signed an interlocutory summary judgment order granting
Mainland’s motion on the question of liability and damages. It awarded Mainland
the entire amount of damages that it sought, $91,097,67, as well as attorney’s fees
in the amount of $11,640. The trial court then stated “that the only outstanding
issue for the Court to decide is what credit or offset, if any, [Consolidated] may be
entitled to regarding the sale of the MRI machine by [Mainland]. All other issues
pled by either party are resolved by this ORDER.”
Mainland then filed a second motion for summary judgment asserting both
traditional and no-evidence grounds on Consolidated’s failure to mitigate
affirmative defense and assertion that it was entitled to an offset or credit.
Mainland argued that Consolidated was not entitled to an offset or credit against
the unpaid $31,125 balance because Mainland had no duty under the Agreement to
sell the MRI, or to even look for a buyer. In addition, Mainland pointed out that if
Consolidated had not found a buyer by the April 30 deadline, Mainland had the
authority under the Agreement to simply discard the MRI. Mainland then argued
Consolidated had no evidence that Mainland (1) had not exercised reasonable care
to minimize damages, or (2) did anything that caused further damages. Finally,
Mainland argued Consolidated had no evidence of any amount of damages that
could have been avoided through the exercise of reasonable care.
Consolidated filed a response to Mainland’s motion in which it asserted
entitlement to a $15,000 credit or offset because Mainland had denied
Consolidated the opportunity to sell the MRI because Mainland “had not seen
documents from the buyer of the machine prior to sale.” Consolidated attached 24
pages of emails discussing the past-due payments called for by the Agreement,
abandoned patient files inside the leased space, as well as the removal of the MRI
from the leased space. Consolidated did not attach any affidavits to the response
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authenticating the emails. The emails were between several people including
Ronald Hock, Consolidated’s general counsel, Jeremy Roberts, counsel for
Mainland, Linda Clayton, Mainland’s property manager, Rick Miller with
“makhealthcare,” and Satheesh also with “makhealthcare.” There is no evidence
explaining who Rick Miller or Satheesh are, or how they are connected to the
matters at issue in this appeal.
In addition, the only discussion regarding the sale of the MRI was
Consolidated’s belief, in early March 2016, that it had a “possible sale,” with an
undisclosed potential buyer, in the works where the gross proceeds could be
$15,000. Hock mentioned this possible deal in an email to Roberts in which he
also put forward renegotiating the Agreement to rework the payment schedule
from a three-month time period to “a more reasonable repayment schedule” of 24
months. When Roberts responded that Mainland was interested but it needed to
review the sale and construction proposal documents, Hock admitted that “none of
those documents exist at present.” Roberts then told Hock “that’s fine.” Roberts
explained that Mainland needed “a chance to look at and approve everything
before things actually get moving.”
There is then a gap from the middle of March until an email sent on May 14,
2016. In that email, Roberts wrote to “Ron/Satheesh” that he was “proposing a
conference call on Monday to discuss potential removal of the [MRI]. I need to be
clear that removal is not currently approved and no construction whatsoever can
happen at the property at this time. Please let me know if you are available at
10am cst on Monday to discuss.” Satheesh responded the next day: “Thanks
Jeremy [Roberts] for the call and we were able to stop my team from going to
Texas. As I had mentioned, we are only directed by [Consolidated] to coordinate
the removal. Financial terms [are] between you and [Consolidated] and if we are
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removing next week, my team [has] to start on Monday. If not[,] it will have to be
moved after 4 weeks. I am available for the call anytime tomorrow morning.”
This was followed by an email from Hock to Roberts on May 16 in which he asked
for “Satheesh and Rick [to] work together with Linda on the premises related
details, as we discussed previously. We do not want any window of opportunity to
close again.” Roberts responded the same day telling Hock
Ron, all we were told is that the buyer would submit the items we
needed for review in advance to us. This was never done. After
speaking with Satheesh a couple days ago, we learned for the first
time that the prospective buyer is not responsible for paying to restore
my client’s walls, proceeds from sale are not going to us, proceeds to
Consolidated (that are presumably fbo landlord) are potentially lower
than the cost to restore our walls, we will not have opportunity to
review bill of sale or construction plans. . . As matters stand, this is
not going to work. I am proposing a call to discuss this fully and
ensure we are not missing any information, but for the time being this
cannot proceed.
There were also emails from later in May and early June, 2016, regarding a
meeting at the shopping center on June 6 to allow a contractor to examine the
leased space so he could prepare a written quote for the removal of the MRI and
subsequent rebuild of the exterior wall. Consolidated offered no other evidence
regarding the possible sale of the MRI, the cost of removing the MRI from the
leased space, or why the possible sale of the MRI did not proceed past these
discussions regarding a meeting at the leased space.3
The trial court granted Mainland’s second motion for summary judgment
and signed an amended final judgment awarding Mainland damages totaling
$91,097.67, attorney’s fees of $11,640, prejudgment and post-judgment interest,
3
There were emails from later in 2016 discussing patient files abandoned at the leased
space. None of these emails address the removal of the MRI from the leased space however.
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and taxable costs. This appeal followed.4
ANALYSIS
I. We have jurisdiction over Consolidated’s appeal.
We turn first to Mainland’s motion to dismiss. Mainland argues in the
motion that this court does not have jurisdiction because Consolidated’s notice of
appeal was untimely.
This court has jurisdiction to determine our own jurisdiction. See Gilchrist
Cmty. Ass’n v. Cty. of Galveston, No. 14-17-00681-CV, 2018 WL 6722343, at *2
(Tex. App.—Houston [14th Dist.] Dec. 21, 2018, no pet.) (mem. op.) (citing State
v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015)). Issues involving questions of
jurisdiction are treated as questions of law. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
The amended final judgment in this case was signed on November 27, 2017.
Consolidated filed a motion for reconsideration on December 21, 2017. In that
motion, Consolidated re-urged the evidentiary objections it had made in response
to Mainland’s motion for summary judgment and it asked the trial court for an
“express ruling” on them. On March 9, 2018, Consolidated simultaneously filed
an Amended Motion for Extension of Time to File Notice of Appeal and a Notice
of Appeal. Mainland argues that Consolidated’s notice of appeal was untimely
because the motion for reconsideration asking for evidentiary rulings did not
4
During the pendency of this appeal, Mainland filed an “Appellee’s Notice of Partial
Release of Judgment.” Mainland has not filed a motion asking this court to take any action. See
Tex. R. App. P. 10.1 (Unless these rules prescribe another form, a party must apply by motion
for an order or other relief.”). Nor has Consolidated filed any type of response to this notice.
See id. We therefore do not consider what, if any, effect this partial release of judgment may
have on the final judgment at issue in this appeal. See id. at 38.1(f) (providing that appellant
must include in its brief “all issues or points presented for review”); 47.1 (directing that the court
of appeals must hand down a written opinion that “addresses every issue raised and necessary to
final disposition of the appeal.”).
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extend the timetable for filing a notice of appeal because it did not seek a
substantive change in the final judgment. In making this argument, Mainland
primarily relies on the Dallas Court of Appeals’ opinion Esty v. Beal Bank S.S.B.,
298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet.). In that case, the court, in
dicta, described post-judgment orders striking summary judgment evidence as
collateral to the judgment and stated that they could not be “properly characterized
as vacating, modifying, correcting, or reforming the judgment under Rule 329b.”
Id.
The Rules of Appellate Procedure, however, are to be construed reasonably,
yet liberally. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). An appeal
should not be dismissed “whenever any arguable interpretation of the Rules of
Appellate Procedure would preserve the appeal.” Id. A timely-filed post-judgment
motion that seeks a substantive change in an existing judgment qualifies as a
motion to modify under Rule 329b(g) and thus extends the trial court’s plenary
power as well as the amount of time a party has to perfect their appeal. Lane Bank
Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000); see Crotts v.
Cole, 480 S.W.3d 99, 102–03 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(“Therefore, the substance of this filing included a timely motion to modify the
trial court’s final order that extended the trial court’s plenary power over its final
order.”).
In its motion for reconsideration, Consolidated re-urged its evidentiary
objections, which, if sustained, would have resulted in the denial of Mainland’s
initial motion for summary judgment because the trial court would have been
barred from giving weigh to Mainland’s summary judgment evidence.
Consolidated asked the trial court to reconsider those objections and to make an
express ruling on them. At a minimum, the motion can be construed as a request
8
for inclusion of the evidentiary rulings in the judgment. See Seim v. Allstate Tex.
Lloyds, 551 S.W.3d 161, 163–64 (Tex. 2018) (per curiam) (explaining that rules of
error preservation apply to summary-judgment proceedings); Torres v. Chauncey
Mansell & Mueller Supply Company, Inc., No. 07-16-00016-CV, 2016 WL
944140, *2 (Tex. App.—Amarillo Mar. 11, 2016, per curiam order) (concluding
motion to modify judgment asking trial court to rule on objections to summary
judgment evidence extended appellate deadlines). Liberally construing
Consolidated’s motion for reconsideration however, we conclude that it sought a
substantive change to the trial court’s judgment, the reversal of the trial court’s
granting of Mainland’s motion for summary judgment. It therefore extended the
appellate timetable making Consolidated’s notice of appeal timely filed. Torres,
2016 WL 944140 at *2. We thus have jurisdiction to consider Consolidated’s
appeal. We deny Mainland’s motion to dismiss.
II. The trial court did not err when it granted Mainland summary
judgment on its claims.
Consolidated raises three issues on appeal. Consolidated argues in its first
two issues that the trial court erred when it granted Mainland’s motions for
summary judgment on its breach of contract cause of action. Consolidated
challenges the trial court’s award of attorney’s fees to Mainland in its third issue.
A. Standard of review and applicable law
We review a trial court’s order granting a traditional summary judgment de
novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). In
reviewing a grant of summary judgment, we consider all of the evidence in the
light most favorable to the nonmovant. Ron v. AirTran Airways, Inc., 397 S.W.3d
785, 788 (Tex. App.—Houston [14th Dist.] 2013, no pet.). When a plaintiff such
as Mainland, moves for summary judgment on its cause of action, it must
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conclusively prove all essential elements of its claim as a matter of law. Cullins v.
Foster, 171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Evidence is considered conclusive if reasonable people could not differ in their
conclusions. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied). The nonmovant has no burden to respond
to a motion for summary judgment unless the movant conclusively establishes each
element of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 222–23 (Tex. 1999). If the movant establishes its entitlement to
judgment, then the burden shifts to the nonmovant to come forward with
competent controverting evidence sufficient to raise a genuine issue of material
fact. Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 868 (Tex. App.—
Houston [14th Dist.] 2017, no pet.).
Once Mainland proved its entitlement to summary judgment as a matter of
law, it became Consolidated’s burden as the non-movant to present grounds for
avoiding summary judgment. Home Loan Corp. v. JPMorgan Chase Bank, N.A.,
312 S.W.3d 199, 205 (Tex. App.—Houston [14th Dist.] 2010, no pet.). To avoid
summary judgment by raising an affirmative defense, the non-movant must do
more than merely plead the affirmative defense. Lujan v. Navistar Fin. Corp., 433
S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In addition, the
non-movant must produce sufficient evidence to conclusively prove, or at least
raise a material issue of fact, as to each element of the affirmative defense. See
Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.—Houston [14th Dist.]
1998, pet. denied).
B. Mainland adequately pled its breach of contract cause of action,
including the damages it sought.
In its second issue, Consolidated argues that the trial court erred when it
10
included the costs of removing the MRI from the leased space in its final summary
judgment because, in Consolidated’s view, this was a separate cause of action that
Mainland did not plead. We disagree.
Here, the Agreement required Consolidated to remove the MRI from the
leased space by April 30, 2016. It also authorized Mainland to dispose of the MRI
if Consolidated had not removed it by the specified deadline. Finally, the
Agreement provided that Mainland was “entitled to reimbursement from
[Consolidated] for any costs incurred in the removal of the MRI Scanner from the
Leased Premises (including costs to repair/rebuild the Leased Premises).” We
therefore conclude that the recovery of the costs associated with the removal of the
MRI from the leased space ($59,972.67) was not a separate cause of action, but
was instead damages caused by Consolidated’s breach. See Parker Drilling Co. v.
Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied) (stating elements of a breach of contract claim, which includes “the
plaintiff suffered damages as a result of [the] defendant’s breach.”). Consolidated
does not dispute that Mainland pled a breach of contract claim and alleged that it
had incurred damages totaling at least $31,125 as a result of Consolidated’s breach.
Texas follows a fair notice standard for pleading, which looks to whether the
opposing party can ascertain from the pleading the nature and basic issues of the
controversy. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.
2000). A defendant may challenge the sufficiency of a plaintiff’s pleading through
special exceptions. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). A
special exception is appropriate if “the pleadings are not clear or sufficiently
specific or fail to plead a cause of action.” Baylor Univ. v. Sonnichsen, 221
S.W.3d 632, 635 (Tex. 2007); see Tex. R. Civ. P. 91. If requested by special
exception, a trial court also may require a plaintiff to amend its petition to specify
11
the maximum amount of damages claimed. Ford v. Performance Aircraft Servs.,
Inc., 178 S.W.3d 330, 335 (Tex. App.–Fort Worth 2005, pet. denied); Tex. R. Civ.
P. 47.
Consolidated did not file special exceptions to Mainland’s petition. We
therefore liberally construe Mainland’s petition in its favor to determine whether it
adequately pled its breach of contract cause of action and the damages resulting
from the breach. Prudential Ins. Co. of Am. v. Fin. Review Servs, Inc., 29 S.W.3d
74, 81 (Tex. 2000); Port Auth. of Harris Cty. v. Zachry Constr. Corp., 513 S.W.3d
543, 571 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Mainland alleged
that Consolidated breached the Agreement, which provided, in part, that Mainland
was “entitled to reimbursement from [Consolidated] for any costs incurred in the
removal of the MRI Scanner from the Leased Premises (including costs to
repair/rebuild the Leased Premises).” Mainland also alleged that it had suffered
“actual damages of at least $31,125.” Since there were no special exceptions filed,
we conclude that this pleading adequately informed Consolidated of the minimum
damages sought and gave Consolidated sufficient information that it could prepare
a defense. See Horizon/CMS Healthcare Corp., 34 S.W.3d at 896–97. We
overrule Consolidated’s second issue.
C. The trial court did not err when it granted Mainland’s motion for
summary judgment on Mainland’s breach of contract cause of
action because Consolidated failed to meet its summary judgment
burden in response to the motion.
Consolidated argues in its first issue that the trial court erred when it granted
Mainland’s motion for summary judgment because the exhibit with 24 pages of
emails Mainland included with its summary judgment response raised a genuine
issue of material fact on the cost to remove the MRI from the leased space and then
12
rebuild the space after the removal.5 Consolidated specifically references one
email in the 24-page exhibit in which Ronald Hock, Consolidated’s general
counsel, stated that he had been informed that the removal and rebuild cost would
be between $5,000 and $7,500. Mainland responds that the referenced email did
not generate a material issue of fact because it was unsworn and unauthenticated.
We agree. Unauthenticated or unsworn documents, or documents not supported by
any affidavit, are not entitled to consideration as summary judgment evidence.
Mayo v. Suemar Exploration & Prod. LLC, No. 14-17-00491-CV, 2008 WL
4355259, at *5 (Tex. App.—Houston [14th Dist.] Aug. 26, 2008, pet. denied)
(mem. op.). Because the only exhibit offered by Consolidated cannot be
considered, we conclude it did not create a genuine issue of material fact and the
trial court did not err when it granted Mainland’s motion for summary judgment on
the removal costs. See id. at *6 (“Accordingly, the trial court did not err in
granting [movant’s] no-evidence motion for summary judgment because appellant
failed to present any evidence that created a genuine issue of material fact.”). We
overrule Consolidated’s first issue on appeal.
C. The trial court did not err when it granted Mainland’s motion for
summary judgment on Mainland’s attorney’s fees.
Consolidated argues in its third issue that the trial court erred when it
included $7,140 in attorney’s fees in the final judgment because those fees were
unrelated to the lawsuit. Consolidated argues they are unrelated because the fees
were incurred for legal services performed before the lawsuit was filed.
Consolidated cites Tony Gullo Motors v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006)
5
Consolidated does not make any other argument that the trial court erred when it
granted Mainland’s motion for summary judgment on the question of the cost for the MRI
removal and subsequent rebuild of the leased space. Consolidated also does not challenge the
trial court’s summary judgment on the damages awarded for the amount Consolidated had not
paid as required by the Agreement.
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and Schwartzott v. Maravilla Owners Association, Inc., 390 S.W.3d 15, 21 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied) in support of its argument. We
conclude that neither mandates reversal of the attorney’s fee award.
In Tony Gullo Motors, a case involving fraud and breach of contract claims,
the Texas supreme court reiterated the general rule that “fee claimants have always
been required to segregate fees between claims for which they are recoverable and
claims for which they are not.” Tony Gullo Motors, 212 S.W.3d at 311. Here, it is
undisputed that Mainland seeks fees only for work connected with a breach of
contract claim against a single defendant. Consolidated does not dispute that
attorney’s fees are recoverable in a breach of contract case.
Schwartzott involved a lawsuit in which a homeowners’ association filed a
sworn account claim against the Schwartzotts for past due homeowner’s
assessments. Schwartzott, 390 S.W.3d at 17. In addition to the attorney’s fees
incurred in the sworn account lawsuit, the homeowner’s association also sought to
recover fees associated with a separate lawsuit between the same parties. Id. at 21.
The trial court awarded the fees when it granted the homeowner’s association’s
motion for summary judgment. Id. at 18. This Court held those fees could not be
recovered because the summary judgment evidence did not show “how these
attorney’s fees were reasonable fees for the collection of the assessments owed by
the Schwartzotts to the [homeowner’s] [a]ssociation.” Id. at 21. Here, the
challenged fees were not incurred as a result of some other lawsuit. The
uncontroverted summary judgment evidence established instead that the fees were
reasonable and necessary and were related to Mainland’s breach of contract claim.
Consolidated did not attach an affidavit from an attorney contesting Mainland’s
attorney expert’s testimony that the fees were incurred in connection with the
lawsuit. Mainland’s uncontroverted evidence supports the trial court’s award of
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the entire amount sought by Mainland. See Top Cat Ready Mix, LLC v. Alliance
Trucking, L.P., No. 05-18-00175-CV, 2019 WL 275880, at *6 (Tex. App.—Dallas
Jan. 22, 2019, no pet.) (mem. op.) (“The affidavit of an attorney setting forth the
attorney’s qualifications, opinion regarding reasonable attorney’s fees, and the
basis for the opinion will be sufficient to support summary judgment, if
uncontroverted.”) (internal quotation marks omitted); Gaughan v. Nat’l Cutting
Horse Ass’n, 351 S.W.3d 408, 423 (Tex. App.—Fort Worth 2011, pet. denied)
(“The NCHA’s summary judgment established its entitlement to summary
judgment as to the amount of attorney’s fees, and Gaughan’s arguments are mere
criticisms of the amount sought without contradicting evidence.”). We overrule
Consolidated’s third issue on appeal.
CONCLUSION
Having denied Mainland’s motion to dismiss and overruled Consolidated’s
issues on appeal, we affirm the trial court’s final judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Spain (Spain, J., dissenting).
15