Terence Jones v. Best Storage Center (Aka Best Storage), Richard Pickard, Mikayla's LLC, Richard Pickard D/B/A Best Storage Center, Mikayla's, LLC D/B/A Best Storage Center, Unknown "Buyer" (Doe 1), and Does (2-10) ( 2022 )

Affirmed in Part, Reversed in Part, and Remanded and Memorandum
Opinion filed December 6, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00731-CV
TERENCE JONES, Appellant
V.
BEST STORAGE CENTER (AKA BEST STORAGE), RICHARD
PICKARD, MIKAYLA'S LLC, RICHARD PICKARD D/B/A BEST
STORAGE CENTER, MIKAYLA'S, LLC D/B/A BEST STORAGE
CENTER, UNKNOWN "BUYER" (DOE 1), AND DOES (2-10), Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2019-67454
MEMORANDUM OPINION
Appellant Terence Jones (“Jones”) appeals the trial court’s judgment
granting the no-evidence motion for summary judgment filed by appellee Richard
Pickard d/b/a Best Storage Center (a/k/a Best Storage Center) (“Pickard”). In two
issues, Jones argues the trial court erred when it granted the motion because (1) it
granted relief as to other defendants besides Pickard, and (2) Jones raised a fact
issue as to his breach of contract claim. We affirm in part, reverse in part, and
remand for further proceedings.
I. BACKGROUND
On September 17, 2019, Jones filed suit pro se and in forma pauperis against
Pickard and Best Storage Center,1 asserting claims for breach of contract, breach of
implied duty of care, negligent infliction of emotional distress and mental anguish,
invasion of privacy, conversion, and violation of the Deceptive Trade Practices
Act. Jones amended his petition multiple times, but ultimately his live petition
included the following additional defendants: Mikayla’s LLC; Mikayla’s LLC
d/b/a Best Storage Center; any other parties doing business as Best Storage Center;
the unknown “Buyer”; any other potential “Doe” parties; First Fidelity Bank, NA;
First Fidelity Bancorp., Inc; and First Fidelity Bank. Jones asserted the following
claims against all defendants: breach of contract; “No Contract – Invalid Contract,”
“Securing Execution of Document by Deception”; breach of implied duty of care;
breach of fiduciary duty; negligent infliction of emotional distress and mental
anguish; intentional infliction of emotional distress and mental anguish; invasion
of privacy; negligence; negligence per se; gross negligence; breach of bailment;
conversion; trespass to property; theft and violation of the Texas Theft Liability
Act; fraudulent concealment; fraud; credit/debit card fraud; identity theft;
stalking/harassment; violation of the Texas Debt Collections Act; violation of the
Self Storage Lien Act; misappropriation of trade secrets; misapplication of
fiduciary property; violation of the Deceptive Trade Practices Act; spoliation;
fraudulent destruction, removal, concealment of documents; and “Other Counts Per
1
In his initial petition, Jones listed Pickard and Best Storage Center as separate
defendants. In his live pleading, Jones listed Pickard as the owner of “Best Storage” and also
named Pickard as Pickard d/b/a Best Storage Center.
2
Defendant’s ‘Rental Agreement’ Document.”
Pickard first filed a traditional motion for summary judgment, advancing the
statute of limitations as an affirmative defense to Jones’s tort claims and
addressing Jones’s claims for invasion of privacy; intentional infliction of
emotional distress; negligence per se, negligent infliction of emotional distress, and
gross negligence; conversion; breach of bailment; theft liability act; DTPA
violations; Texas Debt Collection Act; and violation of the Texas Self-Storage
Lien Act. Pickard filed a second traditional motion for summary judgment arguing
that the economic loss rule barred Jones’s tort claims, as well as Jones’s claims for
misrepresentation, fraud, and violation of the DTPA. This second motion also
argued that Jones was barred from recovering any mental anguish damages and
that the spoliation cause of action was invalid. The trial court granted both of
Pickard’s traditional summary judgment motions on July 23, 2021.
Pickard subsequently filed a no-evidence motion for summary judgment,
challenging elements of Jones’s causes of action for breach of contract; trespass to
property; identity theft; credit card fraud “and/or” fraudulent destruction, removal,
and concealment of documents; “stalking/harassment”; misapplication of fiduciary
property; and “Other Counts Per Defendant’s ‘Rental Agreement’ Document.” As
to Jones’s breach of contract claim, Pickard’s no-evidence motion argued that
Jones did not produce any evidence of damages or of a breach of the lease
agreement by Pickard. Jones’s appeal only challenges the dismissal of his breach-
of-contract claim against Pickard.
Jones’s third amended response to Pickard’s no-evidence motion asserted, in
relevant part, that Pickard “breached the implied contract by discontinuing the
storage of [Jones’s] property without [Jones’s] consent and without authority to do
so.” Jones also argued that there was evidence of a breach of contract because he
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and Pickard agreed to a monthly rent of $75 but Jones was charged $83. Regarding
damages, Jones argued that he “lost his property stored at Best Storage Center
causing a variety of damages including the loss of the property itself, irreplaceable
property the value of which [Jones] must opine on, significant mental anguish, and
time and money spent in trying to rectify the issue.” Jones attached fourteen
exhibits to his response, including four unsworn declarations by Jones, an
“affidavit” by Jones, and an unsworn business records declaration by Jones.
Pickard filed a reply and objected to two of Jones’s unsworn declarations
and Jones’s business records declaration (exhibits eight, nine, and ten) on multiple
grounds and objected to invoices Jones attached on the basis that they were
unauthenticated. Pickard also filed a response to Jones’s third amended response.
Pickard argued that Jones’s argument concerning the change in the price of rent did
not raise an issue of fact as to damages because Jones’s factual assertions in his
petition failed to mention a price increase.
On September 16, 2021, the trial court granted Pickard’s no-evidence
motion, struck Jones’s summary judgment evidence, dismissed all of Jones’s
causes of action “through Summary Judgment,” and dismissed Jones’s suit with
prejudice. This appeal followed.
II. STANDARD OF REVIEW
After an adequate time for discovery, a party may move for a no-evidence
summary judgment asserting that no evidence exists to support one or more
essential elements of a claim on which the adverse party bears the burden of proof
at trial. Tex. R. Civ. P. 166a(i); see LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688
(Tex. 2006) (per curiam). The burden then shifts to the nonmovant to produce
evidence raising a genuine issue of material fact on the challenged elements of his
claim. Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
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(Tex. 2006). The granting of a no-evidence summary judgment is improper if the
nonmovant brings forth more than a scintilla of probative evidence raising a
genuine issue of material fact. Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d
167, 172 (Tex. 2003).
“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.” Id. (quoting King
Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). More than a scintilla of
evidence exists if the evidence would allow reasonable and fair-minded people to
differ in their conclusions. Id. Unless the nonmovant raises a genuine issue of
material fact, the trial court must grant summary judgment. Tex. R. Civ. P. 166a(i).
We review a trial court’s ruling on a motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We view the
evidence in the light most favorable to the party against whom summary judgment
was rendered, crediting evidence favorable to that party if reasonable jurors could
and disregarding contrary evidence unless reasonable jurors could not. Id. at 582
(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
We review a trial court’s evidentiary ruling for an abuse of discretion. Sw.
Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 728 (Tex. 2016). A trial
court abuses its discretion if it rules in an arbitrary manner or without reference to
guiding rules and principles. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002).
III. DISMISSAL OF DEFENDANTS OTHER THAN PICKARD
In his first issue, Jones argues the trial court erred when it dismissed his
claims against all defendants other than Pickard when the trial court granted
Pickard’s no-evidence motion because the claims against the other defendants were
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not raised in the motion. See Tex. R. Civ. P. 166a(i). Pickard argues on appeal that
the dismissal of Jones’s causes of actions against the other defendants may be
affirmed on two bases: (1) the trial court dismissed Jones’s causes of action against
the other defendants under Texas Rule of Civil Procedure 165a based on want of
prosecution, and (2) the trial court dismissed Jones’s causes of action against the
other defendants under Texas Civil Practice and Remedies Code § 13.001, the pro
se litigant statute. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001; Tex. R. Civ. P.
165a.
A case may be dismissed for want of prosecution on the failure of any party
seeking affirmative relief to appear for any hearing or trial of which the party had
notice. Tex. R. Civ. P. 165a(1). As to Pickard’s argument that the trial court
dismissed Jones’s claims against all other defendants for want of prosecution, we
note that the trial court’s judgment states that it dismissed Jones’s causes of action
“through Summary Judgment.” Because the trial court’s judgment does not provide
that Jones’s claims against the other defendants were dismissed for want of
prosecution, we reject this argument. See Tex. R. Civ. P. 165a(1), 166a(i).
Under Civil Practice and Remedies Code § 13.001, a court in which an
affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has
been filed may dismiss the action on a finding that (1) the allegation of poverty in
the affidavit is false; or (2) the action is frivolous or malicious. Tex. Civ. Prac. &
Rem. Code Ann. § 13.001(a). We reject Pickard’s argument that the trial court’s
dismissal of Jones’s causes of action against the other defendants may be affirmed
pursuant to Civil Practice and Remedies Code § 13.001. A court may dismiss an
action pursuant to § 13.001 if the trial court makes a finding that the allegation of
poverty in the affidavit is false or the action is frivolous and malicious. See id.;
Creel v. Dist. Attorney for Medina Cnty., Tex., 818 S.W.2d 45, 46 n.2 (Tex. 1991)
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(per curiam). The trial court made no such finding here.
We sustain Jones’s first issue.
IV. DID THE COURT ERR IN GRANTING SUMMARY JUDGMENT AGAINST PICKARD?
In his second issue, Jones argues the trial court erred when it granted
Pickard’s no-evidence motion for summary judgment because Jones raised a fact
issue as to the elements of breach and damages concerning Jones’s breach of
contract claim. Jones also argues under this issue that the trial court erred when it
sustained Pickard’s evidentiary objections to certain portions of Jones’s unsworn
declaration, which Jones attached to his response to Pickard’s no-evidence motion.
1. BREACH OF CONTRACT
On appeal, Pickard argues that the only exhibits Jones referenced in his
response to support the breach element of his claim were exhibits three through
seven. However, Jones also referenced exhibit two in the background section of his
response. Accordingly, contrary to Pickard’s argument on appeal, we will consider
Jones’s exhibit two in addition to exhibits three through seven in determining
whether Jones raised a fact issue as to the breach element. Pickard also argues on
appeal that we cannot consider any of the evidence referenced by Jones to support
the breach element because the trial court struck the referenced exhibits. Contrary
to Pickard’s argument, Pickard did not object to exhibits two through seven.
Exhibit two is an unsworn declaration by Jones, stating in relevant part that
he stored property at Best Storage Center and that his property was auctioned off to
a third party. Exhibit three is a May 2, 2017 lien notification from Pickard to Jones
stating that Jones failed to make his monthly payment of $83 and was being
assessed a lien processing fee of $60. Exhibit four is an unsworn declaration by
Jones, stating that Jones agreed to pay $75 per month for the storage of his
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property and did not authorize anyone from Best Storage Center to auction, sell, or
otherwise dispose of his property. Exhibit five is a receipt to Jones showing that he
paid $17.25 towards his storage unit in November of 2015. Exhibit six is an
“affidavit” by Jones that is not notarized, stating that the four-page “Self-Service
Rental Agreement” (exhibit seven), which was produced by Pickard to Jones, was
false; that Jones was never given this agreement prior to the filing of his lawsuit;
and that Jones “never signed or initialed” the agreement.
On appeal, Pickard argues that exhibit two is “predicated on hearsay”;
however, Pickard did not object to exhibit two on this basis or any other basis at
the trial court. See Tex. R. App. P. 33.1(a). Pickard also argues that exhibit two
fails to meet the statutory requirements of an unsworn declaration because it fails
to include Jones’s date of birth. See Tex. Civ. Prac. & Rem. Code Ann.
§ 132.001(d). Contrary to Pickard’s argument, exhibit two does contain Jones’s
date of birth. As to exhibit six, Pickard argues on appeal that it is not notarized.
While exhibit six is not notarized, it satisfies the requirement of § 132.001 for an
unsworn declaration and is thus competent summary judgment evidence. See id.
§ 132.001(a); Horie v. Law Offices of Art Dula, 560 S.W.3d 425, 439 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). Pickard argues that exhibit four is “rife with
hearsay,” self-serving, and not readily controvertible; however, Pickard did not
object to Jones’s exhibit four at the trial court. See Tex. R. App. P. 33.1(a).
Viewing exhibits two, four, and six in the light most favorable to Jones, we
conclude that Jones raised an issue of fact as to the breach element of his breach-
of-contract claim because Jones disputed that he signed and initialed the agreement
relied on by Pickard, Jones asserted that Jones and Pickard agreed to have Pickard
store Jones’s property for $75 a month, and Pickard subsequently auctioned off
Jones’s property.
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2. DAMAGES
As to damages, Jones first argues that a business record and personal
recollection affidavit submitted by Pickard raised an issue of fact as to damages.
However, the burden was on Jones to raise an issue of fact, and we only consider
Pickard’s evidence if Jones successfully carried his burden of raising a fact issue as
to damages. See Tex. R. Civ. P. 166a(i). In his response to Pickard’s no-evidence
motion challenge to the element of damages, Jones pointed the trial court’s
attention to exhibits eight, nine, and ten to support his argument that a fact issue
existed as to damages.
Exhibit eight is an unsworn busines records declaration of Jones, stating that
he owned and managed a nationwide marketing business and that he stored “eight
years [sic] worth of my marketing business property and trade secrets related to the
marketing business at Best Storage Center . . . .” Jones further stated in this exhibit
that he “had to stop the marketing service” as a result of the loss of his property
and that he lost “more than eight years [sic] worth of business property, money
invested, and hard work as the result of the loss of my property that was stored at
Best Storage Center.” Exhibit nine is an unsworn declaration by Jones, stating in
relevant part that Jones had “spent more than fifteen thousand dollars in legal fees
in maintaining this lawsuit.”
Exhibit ten is another unsworn declaration by Jones stating that he stored
personal and business property at Best Storage Center and providing a non-
exhaustive list of items stored there. Jones states in this declaration that he had all
of the items listed valued, and that he received a valuation from a valuator of over
one million dollars for the items. Jones further stated that he had “estimated” the
value of nineteen different items, listed the values of these nineteen items, and
stated that “[s]ome values may be overstated and some understated.”
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Pickard objected to exhibits eight through ten, and the trial court sustained
his objections. Because it is dispositive, we focus our analysis on Pickard’s
objections to exhibit ten. Pickard objected to exhibit ten on the basis that it was
“unverified, hearsay, and is authored with self-admitted speculation and
unreliability.” On appeal, Pickard argues that Jones’s exhibits eight through ten are
conclusory.
While exhibit ten was unverified, it complied with the requirements for the
use of an unsworn declaration as competent summary judgment evidence. See Tex.
Civ. Prac. & Rem. Code Ann. § 132.001(a); Horie, 560 S.W.3d at 439. As to
Pickard’s objection that exhibit ten was speculative as to damages, we note that a
property owner may testify about the value of his personal property. See
Mukwange v. Pub. Storage, Inc., No. 14-14-00212-CV, 2015 WL 4748308, at *4
(Tex. App.— Houston [14th Dist.] Aug. 11, 2015, pet. denied) (mem. op.).
Furthermore, Jones’s declaration provides that he “recently had all of the above
items valued and the value I received without providing all of the details to the
valuator was over one million dollars.” This indicates that Jones’s valuation is not
purely speculative. Likewise, Pickard’s objection that Jones’s estimation of
damages was conclusory fails because Jones’s affidavit provides a basis for his
statements concerning the value of his items. See Windrum v. Kareh, 581 S.W.3d
761, 768–69 (Tex. 2019) (“A conclusory statement asserts a conclusion with no
basis or explanation.”). As to Pickard’s hearsay objection, Pickard failed to
identify at the trial court and on appeal the statements he complained were hearsay.
Nevertheless, none of the statements in Jones’s exhibit ten are hearsay, except
Jones’s statement that the valuator’s valuation was a “rough” valuation.
Importantly, Jones’s statement that “I recently had all of the above items valued
and the value I received without providing all of the details to the valuator was
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over one million dollars” is not hearsay.2 In sum, we conclude that the trial court
abused its discretion when it struck Jones’s exhibit ten and we will consider exhibit
ten in our analysis. See Butnaru, 84 S.W.3d at 211.
On appeal, Pickard argues that the evidence relied on by Jones is no
evidence of economic damages, as required for a breach-of-contract claim, and that
Jones “is not due nominal damages on the merits of the evidence in the record.”
However, Pickard did not advance this argument at the trial court. See Tex. R.
App. P. 33.1; Tex. R. Civ. P. 166a(i). Instead, Pickard argued that there was no
evidence of damages.
Damages for breach of contract may include both direct and consequential
damages. Signature Indus. Servs., LLC v. Int’l Paper Co., 638 S.W.3d 179, 186
(Tex. 2022); Dallas/Fort Worth Int’l Airport Bd. v. Vizant Techs., LLC, 576
S.W.3d 362, 373 (Tex. 2019). Direct damages often include restoration of “the
benefit of a plaintiff’s bargain.” Signature Indus. Servs., 638 S.W.3d at 186.
Consequential damages compensate the plaintiff for foreseeable losses that were
caused by the breach but were not a necessary consequence of it. Stuart v. Bayless,
964 S.W.2d 920, 921 (Tex. 1998); see also Signature Indus. Servs., 638 S.W.3d at
186 n.1 (“Ordinarily, such damages would not result from the breach of such a
contract, and cannot, therefore, be said to be direct, natural and proximate; but are
special and consequential, and such as are recoverable only where the party
breaching the contract had notice, when he made the contract, of the facts which
would render such damages reasonably probable in the event of a breach.” (quoting
W. Union Tel. Co. v. McKinney, 2 Willson 563, 566 (Tex. Ct. App. 1885))).
Pickard failed to argue at the trial court that there was no evidence that Jones
2
Hearsay is an out of court statement offered to proof the truth of the matter asserted in
the statement. See Tex. R. Evid. 801(d).
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could recover consequential damages. See Tex. R. App. 33.1; Tex. R. Civ. P.
166a(i). Jones’s live petition stated that Jones “seeks punitive damages, exemplary
damages, economic damages, non-economic damages, compensatory damages,
future damages, future loss of earnings, special damages, consequential damages,
and all other damages appropriate in this cause.” In his response to Pickard’s no-
evidence motion, Jones argued “no matter which contract theory is applied, [Jones]
lost his property stored at Best Storage Center causing a variety of damages
including the loss of the property itself, irreplaceable property the value of which
[Jones] must opine on, significant mental anguish, and time and money spent in
trying to rectify the issue.” Because the evidence presented by Jones raises a fact
issue as to whether he suffered damages resulting from a possible breach of a
contract between Jones and Pickard, we conclude that the trial court erred when it
granted Pickard’s no-evidence motion as to Jones’s breach of contract claim
against Pickard.
We sustain Jones’s second issue.
V. CONCLUSION
We reverse the trial court’s judgment in part to the extent it dismisses
Jones’s claim against Pickard for breach of contract, as well as Jones’s claims
against all defendants other than Pickard. We affirm in part the remainder of the
judgment and remand for further proceedings.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Christopher and Justices Poissant and Wilson.
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