Chico Auto Parts & Service, Inc. v. Mary Maxey ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00352-CV
___________________________
CHICO AUTO PARTS & SERVICE, INC., Appellant
V.
MARY MAXEY, Appellee
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-269821-13
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. INTRODUCTION
On appeal, Appellant Chico Auto Parts & Service, Inc. challenges the trial
court’s order granting Appellee Mary Maxey’s amended no-evidence motion for
summary judgment, the trial court’s failure to sustain Chico’s objections to Mary’s
summary-judgment evidence, and the trial court’s denial of Chico’s motion to appoint
an attorney ad litem for Mary. We affirm.
II. BACKGROUND
Chico is in the business of providing hazardous waste remediation services.
Mary Maxey has an interest in an oil well (Maxey I Well) that is operated by Black
Strata, LLC. Black Strata’s principal was Craig Crockett.
Chico alleges that in 2011, the Texas Railroad Commission ordered
remediation of the Maxey I Well. Chico further alleges that it performed $63,415.55
worth of remediation services on Maxey I Well “on behalf of” Mary but that it was
not paid. In 2013, Chico filed the instant suit against Crockett, Black Strata, and
Mary, alleging claims against Mary for breach of contract, quantum meruit, and breach
of fiduciary duty. Crockett filed a motion for summary judgment, which was granted,
severed, appealed, and affirmed. See Chico Auto Parts & Serv., Inc. v. Crockett, 512
S.W.3d 560 (Tex. App.—El Paso 2017, pet. denied). Black Strata confessed judgment
for $43,415.55. Id. at 566.
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Mary filed a no-evidence motion for summary judgment. Chico filed a
response and a motion for an appointment of an attorney ad litem for Mary. Mary
then filed an amended no-evidence motion for summary judgment, specifically
identifying each element of each claim and contending that Chico had no evidence of
them. Chico responded and attached hundreds of pages of exhibits. However, the
response did not address each specific element challenged by Mary and only generally
referenced the exhibits. Conspicuously absent from the summary judgment record is
any written contract, invoice, document, or affidavit establishing that Chico had a
contract with Mary to perform remediation services, that Chico actually performed
remediation services, an amount that Chico was owed for performing remediation
services, or that Mary had any legal obligation to pay Chico for any remediation
services.
After a hearing, the trial court granted Mary’s no-evidence summary judgment
motion. Chico raises three issues on appeal.
III. NO-EVIDENCE SUMMARY JUDGMENT WAS PROPER
In its first issue, Chico asserts that the trial court erred by granting the no-
evidence summary judgment because issues of material fact exist on Chico’s causes of
action. We disagree.
Mary’s no-evidence motion for summary judgment properly challenged that
Chico had no evidence to support any of the elements of its breach-of-contract claim,
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quantum-meruit claim, or breach-of-fiduciary-duty claim.1 Chico’s response to Mary’s
no-evidence motion for summary judgment failed to address each specific element
challenged or set forth more than a scintilla of evidence on the challenged elements of
each of its claims against Mary. Therefore, summary judgment was proper.
A. Standard of review
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground that
no evidence supports an essential element of the nonmovant’s claim or defense. Tex.
R. Civ. P. 166a(i). The motion must specifically state the elements for which no
evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The
trial court must grant the motion unless the nonmovant produces summary-judgment
evidence that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997
cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d
291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that
would enable reasonable and fair-minded jurors to differ in their conclusions.
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On appeal, Chico appears to contend that it also brought a fraud claim against
Mary and that summary judgment should not have been granted on that claim. If that
is Chico’s contention, it is not supported by the pleadings because the fraud claim was
alleged against Black Strata and Crockett.
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Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005)). We credit evidence favorable to the nonmovant if reasonable jurors could,
and we disregard evidence contrary to the nonmovant unless reasonable jurors could
not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of
probative evidence that raises a genuine issue of material fact, then a no-evidence
summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009);
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
Rule 166a(i) does not authorize general no-evidence challenges or conclusory
motions. Timpte Indus., 286 S.W.3d at 310 (citing Tex. R. Civ. P. 166a(i) & 1997 cmt.).
Rather, the rule requires the moving party to specifically challenge the opponent’s
evidentiary support for an element of a claim or defense. Id.; see Cmty. Health Sys. Prof’l
Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017) (explaining that the supreme
court strictly enforces the requirement that a no-evidence motion specifically state the
element or elements for which there is no evidence). But neither “[r]ule 166a(i) nor
its comment forbid [challenging every element of a claim], as long as each element is
distinctly and explicitly challenged.” Martin v. McDonnold, 247 S.W.3d 224, 233 (Tex.
App.—El Paso 2006, no pet.).
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B. No-evidence summary judgment was proper on the breach-of-contract
claim.
In her amended no-evidence motion for summary judgment, Mary identified
and listed the elements of a breach-of-contract claim and then specifically alleged that
Chico had no evidence to support any of the elements of its breach-of-contract claim:
Plaintiff has no evidence of any of the following: that Plaintiff is a
proper party to bring suit for breach of contract, that Plaintiff performed
contractual obligations under a contract with Movant, that Movant
breached a contract, or that Movant’s alleged breach caused Plaintiff
injury.
Thus, Mary distinctly and explicitly challenged each element of Chico’s breach-of-
contract claim. See id. To maintain its breach-of-contract claim, Chico was required
to set forth more than a scintilla of evidence on each of the following elements: “(1)
the existence of a valid contract; (2) performance or tendered performance by [Chico];
(3) breach of the contract by [Mary]; and (4) damages to [Chico] resulting from that
breach.” Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837
(Tex. App.—Dallas 2014, no pet.).
Chico’s summary judgment briefing—like its appellate briefing—fails to
specifically direct the court to evidence in the record of a valid contract, performance
by Chico, breach by Mary, or damages to Chico. Our review of the record reveals no
written contract, invoice, document, or affidavit to show that Chico had a contract
with Mary to perform remediation services, that Chico actually performed
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remediation services, an amount that Chico was owed for performing remediation
services, or that Mary failed to pay Chico for any remediation services.
Therefore, we hold that the trial court did not err in granting Mary’s no-
evidence motion for summary judgment on Chico’s breach-of-contract claim.
C. No-evidence summary judgment was proper on the quantum meruit claim.
Mary’s amended no-evidence motion for summary judgment also challenged
Chico to set forth evidence on each element of its quantum meruit claim:
Plaintiff has failed to produce any evidence as to how services or
materials allegedly provided by Plaintiff were provided for Movant.
Namely, Plaintiff has failed to produce any documents or testimony
evidencing Movant’s ownership of the surface estate upon which
Plaintiff’s work was allegedly performed. Further, Plaintiff has failed to
produce any evidence that Movant accepted the services or materials
allegedly provided by Plaintiff. Lastly, Plaintiff has failed to produce any
evidence of how Movant would have had reasonable notice that Plaintiff
would have expected compensation for services or materials that were
not provided to Movant at all.
That is, Mary distinctly and explicitly challenged each element of Chico’s quantum
meruit claim. See Martin, 247 S.W.3d at 233. To survive a no-evidence motion for
summary judgment on its quantum meruit claim, Chico was required to set forth
more than a scintilla of evidence (1) that it rendered valuable services; (2) for Mary; (3)
that those services were accepted by Mary, and were used and enjoyed by her; and (4)
Mary was reasonably notified that Chico was expecting to be paid by Mary for
performing such services. See Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732–
33 (Tex. 2018).
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Here, Chico set forth no evidence of the first, second, third, or fourth elements
of its quantum meruit claim. No exhibits attached to its summary judgment response
nor any specific record citations in its appellate briefing demonstrate that Chico
provided any remediation services, that said remediation services were provided for
Mary, that Mary accepted those services, or that Mary was reasonably notified that
Chico would be performing such services and expecting payment from her.
Therefore, we hold that the trial court did not err in granting the no-evidence
summary judgment on Chico’s quantum meruit claim.
D. No-evidence summary judgment was proper on the breach-of-fiduciary-
duty claim.
Just like it did with the other two claims, Mary’s amended no-evidence motion
for summary judgment challenged Chico to set forth evidence on each specific
element of its breach-of-fiduciary-duty claim:
Plaintiff has failed to produce any evidence that Plaintiff and Movant
had a fiduciary relationship. To prove an action for breach of fiduciary
duty, Plaintiff must establish Movant was Plaintiff’s fiduciary. . . . In this
instance, there was no formal or informal recognized fiduciary
relationship created by law or contract. There is no fiduciary
relationship imposed under Texas law between the owner of a royalty
interest and the contractor for services with the operator of an oil and
gas lease. Second, Plaintiff has failed to produce any evidence that
Movant breached any fiduciary duty to Plaintiff, or that any alleged
breach by Movant resulted in injury to Plaintiff or a benefit to Movant.
Again, Mary’s no-evidence motion distinctly and explicitly challenged each element of
this claim. See Martin, 247 S.W.3d at 233. Therefore, to survive Mary’s amended no-
evidence motion for summary judgment, Chico was required to set forth evidence of
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the existence of a fiduciary duty, breach of the duty, causation, and damages.
Woodhaven Partners, 422 S.W.3d at 838.
When asked at the summary-judgment hearing what evidence Chico had to
support the existence of a fiduciary duty owed by Mary to Chico, Chico’s counsel
stated, “Everybody has a fiduciary relationship to everybody.” But as the Supreme
Court of Texas has explained, “It is well settled that ‘not every relationship involving a
high degree of trust and confidence rises to the stature of a fiduciary relationship.’”
Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (quoting Schlumberger Tech. Corp. v.
Swanson, 959 S.W.2d 171, 176–177 (Tex. 1997)). Indeed, in the context of a business
transaction, “mere subjective trust does not . . . transform arm’s-length dealing into a
fiduciary relationship.” Schlumberger Tech. Corp, 959 S.W.2d at 177. Simply put, Chico
had to set forth more than a scintilla of evidence to show that it had a fiduciary
relationship with Mary.
But Chico has failed to set forth even a scintilla of evidence that it had a
relationship with Mary, let alone a fiduciary one. Nor did Chico set forth evidence of
breach of any fiduciary duty, or damages caused by such a breach. Therefore, we hold
that the trial court did not err in granting Mary’s no-evidence motion for summary
judgment on Chico’s breach-of-fiduciary-duty claim.
Accordingly, we overrule Chico’s first issue.
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IV. ISSUES 2 AND 3 NOT PRESERVED
Although she styled her motion as an amended no-evidence motion for
summary judgment, Mary attached two affidavits and several exhibits. Chico objected
to portions of two of the attached affidavits.
In its second issue, Chico contends that the trial court erred by granting
summary judgment because the challenged affidavits contained inadmissible evidence.
But Chico did not preserve this argument because it failed to obtain a ruling on its
evidentiary objections. See Tex. R. App. P. 33.1(a)(2); Seim v. Allstate Tex. Lloyds, 551
S.W.3d 161, 164, 166 (Tex. 2018). Accordingly, we overrule Chico’s second issue.
Chico’s third and final issue challenges the trial court’s denial of Chico’s motion
for the appointment of an ad litem attorney for Mary. But we need not reach this
issue either. Because Chico directs us to no apparent final adverse ruling or refusal to
rule in this record, the complaint is not preserved.2 See Tex. R. App. P. 33.1(a)(2);
Castleberry v. Weatherford ISD, No. 2-02-00183-CV, 2003 WL 1784578, at *3 (Tex.
App.—Fort Worth Apr. 3, 2003, no pet.) (mem. op.) (affirming summary judgment
2
Assuming arguendo that an adverse ruling did appear in the record, Chico does
not explain, nor do we discern, how or why the purported denial of its motion for the
appointment of an ad litem attorney for Mary caused the no-evidence motion for
summary judgment to be granted. See Tex. R. App. P. 44.1(a) (stating that no
judgment may be reversed on appeal on the basis that the trial court erred unless the
court of appeals concludes that the error complained of probably caused the rendition
of an improper judgment or probably prevented the appellant from properly
presenting the case); In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex. App.—Amarillo
2003, no pet.) (stating that the burden lies with an appellant to establish that the
purported error caused rendition of an improper judgment).
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and holding the appellant failed to preserve error regarding his motion to compel
when the record showed that the trial court never granted or denied the motion to
compel and that the appellant had not objected to the trial court’s refusal to rule).
Accordingly, we overrule Chico’s third issue.
V. CONCLUSION
Having overruled Chico’s three issues, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: July 3, 2019
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