Marilyn Mailloux v. KJ Environmental Management, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00059-CV
___________________________
MARILYN MAILLOUX, Appellant
V.
KJ ENVIRONMENTAL MANAGEMENT, INC., Appellee
On Appeal from County Court at Law No. 2
Denton County, Texas
Trial Court No. CV-2019-00977
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Marilyn Mailloux raises three issues complaining of the trial court’s
granting of Appellee KJ Environmental Management, Inc.’s traditional motion for
summary judgment in this breach-of-contract case involving environmental consulting
services. We affirm.
II. BACKGROUND
In an August 2018 letter, KJ Environmental proposed “to provide
environmental and/or engineering consulting services” for Mailloux’s residential
property in Aubrey, Denton County, Texas. By her signature dated August 22, 2018,
Mailloux authorized KJ Environmental to proceed with the services set out in the
letter.
After a dispute concerning payment for the services arose, KJ Environmental
filed suit against Mailloux alleging breach of contract, quantum meruit, and unjust
enrichment. Mailloux filed a pro se response “refut[ing] all claims” and attaching
documents that she alleges “show Toxic Water and serious medical problems [she
has] from ongoing flooding.”
Several months later, KJ Environmental filed its traditional motion for
summary judgment. By order, the trial court set the motion for summary judgment
for hearing on September 11, 2019. On August 29, 2019, Mailloux filed a letter
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requesting a continuance.1 At the hearing on the continuance with both Mailloux and
KJ Environmental’s attorney present, the trial court reset the motion for summary
judgment on its November 13, 2019 submission docket.
No response was filed to the motion for summary judgment. On
November 13, 2019, the trial court signed a judgment granting the motion for
summary judgment and awarding KJ Environmental damages of $12,957.43;
attorney’s fees of $4,000 through the date of trial; attorney’s fees of $9,000 for an
appeal to the Court of Appeals and $9,000 if the matter is appealed to the Texas
Supreme Court; pre-judgment interest; post-judgment interest; and court costs.
Through counsel, Mailloux filed a motion for new trial, which was overruled by
operation of law. This appeal followed.
1
No motion for continuance was filed. Mailloux’s letter included a “[r]equest
for delay of 90 days, due to medical and house has to be condemned, due to Toxic
water, acid rain on roof, Toxic chemicals in 5 A/C units, plus other illegal problems.”
Attached to the letter were forty-five pages of various unauthenticated and unsworn
documents, including Mailloux’s medical records, letters and emails to State Farm
Insurance, photographs, responses to Plaintiff’s First Request for Production of
Documents and First Request for Admissions, an attorney’s fee statement, a letter
from the United States Environmental Protection Agency, and Mailloux’s letters to
United States Attorney General William Barr, United States Senator Mitt Romney,
Texas Attorney General Ken Paxton, Denton County District Attorney Paul Johnson,
and KJ Environmental’s attorney.
3
III. DISCUSSION
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most
favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could and disregarding evidence contrary to the nonmovant if
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.
2008). A plaintiff is entitled to summary judgment on a cause of action if it
conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c);
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
B. Application of Law to Facts
Mailloux raises three issues in this appeal. First, Mailloux contends that the
trial court erred in granting KJ Environmental’s summary judgment because it was
not proper to grant a default summary judgment. Second, she argues that the trial
court erred in granting summary judgment because, at a minimum, the record
demonstrates a genuine issue of material fact. And third, Mailloux asserts that
because notice is the cornerstone of due process and essential to the granting of
summary judgment, modification of the law is warranted to ensure that nonmovants
have proper notice of summary judgment hearings.
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1. Default Summary Judgment
We start with Mailloux’s contention that the trial court erred in granting a
“default” summary judgment.2 Mailloux argues that this is a default summary
judgment because the judgment states that Mailloux “did not timely file a Response to
the Motion for Summary Judgment and wholly made default.”
It is well settled that a trial court may not grant a summary judgment by default;
that is, the court may not grant a summary judgment because the nonmovant failed to
respond to the motion when the movant’s summary judgment proof is insufficient.
Wimmer v. State, No. 03-03-00135-CV, 2004 WL 210629, at *2 (Tex. App.—Austin
Feb. 5, 2004, pet. denied) (mem. op.) (citing Clear Creek Basin Auth., 589 S.W.2d at
678). The movant must establish his entitlement to summary judgment by
conclusively proving all essential elements of his cause of action or defense as a matter
of law. Id. Unless the movant’s summary judgment evidence is legally sufficient, the
trial court may not grant a summary judgment by default where the nonmovant does
not answer or respond to the motion. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999). Summary judgment motions “must stand or fall on their own merits.”
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993).
2
A “default” summary judgment occurs when summary judgment is granted
without the nonmovant’s having filed an answer or response to the summary
judgment motion, and the movant’s summary judgment proof is insufficient. Briscoe v.
B & G Investments, No. 07-14-00141-CV, 2016 WL 1391326, at *6 n.6 (Tex. App.—
Amarillo Apr. 6, 2016, pet. denied) (mem. op.) (citing City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).
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While Mailloux states that default is “the only reason that the Court granted the
motion,” Mailloux fails to note that the judgment also states “that all procedural
actions required to be taken have been taken and that there is no issue of material fact
that would preclude the granting of a Judgment against [Mailloux] and in favor of [KJ
Environmental].” Mailloux’s argument does not recognize that KJ Environmental’s
motion for summary judgment included evidence of the substantive elements of its
breach-of-contract claim. Therefore, this is not a case in which the trial court’s
decision was based solely on the nonmovant’s failure to respond to the motion.
Because this is not a summary judgment motion granted solely due to the
nonmovant’s failure to answer, we must examine the summary judgment and affirm it
if any of the summary judgment grounds is meritorious. FM Props. Operating Co. v. City
of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Therefore, we overrule Mailloux’s general
complaint that the trial court erroneously granted a default summary judgment.
2. Summary Judgment Evidence
a. Breach of Contract
In her second issue, Mailloux contends that the trial court erred in granting
summary judgment because the record raises a genuine issue of material fact on KJ
Environmental’s breach-of-contract cause of action. Mailloux argues that because she
provided evidence in the record disputing that KJ Environmental provided
environmental services, KJ Environmental did not prove performance or tendered
performance.
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In a summary judgment case, the issue on appeal is whether the movant met
the summary judgment burden by establishing 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); Mann Frankfort, 289 S.W.3d at 848. In deciding whether the summary
judgment will be affirmed, we look to see whether the record establishes that the
movant conclusively proved all essential elements of its cause of action. Clear Creek
Basin Auth., 589 S.W.2d at 678.
To be entitled to summary judgment on its breach-of-contract claim, KJ
Environmental was required to prove, as a matter of law, (1) the existence of a valid
contract, (2) the plaintiff’s performance or tendered performance, (3) the defendant’s
breach, and (4) the plaintiff’s damages sustained as a result of the breach. Luccia v.
Ross, 274 S.W.3d 140, 146 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). While
KJ Environmental failed to expressly state the cause of action in its motion,3 it did
state that it was seeking judgment on the following grounds:
a. That [Mailloux] entered into an agreement with [KJ
Environmental] for engineering consulting services on or about
August 22, 2018. . . .
b. That [Mailloux] failed and refused to pay for the services
provided by [KJ Environmental].
3
No special exception to the motion was filed. An exception is required if the
nonmovant wishes to complain on appeal that the grounds relied on by the movant
were unclear or ambiguous. McConnell, 858 S.W.2d at 342.
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c. That demand was made on [Mailloux] to pay for the
services more than thirty (30) days prior to suit being filed or judgment
being taken.
d. That despite the demand, [Mailloux] failed and refused, and
continues to fail and refuse, to pay [KJ Environmental] in accord with
the Agreement and the balance due and owing to [KJ Environmental] in
the amount of $12,957.43.
In support of its motion, KJ Environmental attached several documents: the
proposal signed by Mailloux, the invoices sent to Mailloux showing KJ
Environmental’s services and charges, the demand letter sent to Mailloux, Plaintiff’s
First Request for Admissions to Mailloux,4 the affidavit of KJ Environmental’s
custodian of records Mandie Ware, and the affidavit of its attorney Gregory J. Sawko.
Ware’s affidavit provided in part,
[KJ Environmental] would show that it entered into a written
agreement with [Mailloux] for engineering consulting services. That
agreement was executed by Defendant on or about August 22, 2018. . . .
In accord with the Agreement, [KJ Environmental] provided the
engineering consulting services. In exchange for providing the services,
[Mailloux] agreed to pay the fees set out in the Agreement.
I have calculated the amounts that are owed by [Mailloux] to [KJ
Environmental] as a result of her default in paying the fees due and have
personally determined that the total balance due and owed is accurate,
and the amount owed is $12,957.43. Further, I have thoroughly
examined all offsets and credits to be given or applied to [Mailloux’s]
account and would affirmatively state that all offsets and credits have
been given and applied to [Mailloux’s] debt.
4
The motion for summary judgment included the following unsworn and
uncorroborated statement: “[Mailloux] has not answered the Request for Admissions
and therefore has admitted each and every one as a matter of law.” The legal effect of
this statement and the request for admissions is discussed below.
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To prevail on its breach-of-contract claim, KJ Environmental must have
presented summary judgment evidence on all elements of its claim. To satisfy the first
element—the existence of a valid contract—KJ Environmental attached a copy of the
signed agreement. The agreement is sufficiently certain to enable a court to determine
the rights and responsibilities of the parties. See Winchek v. Am. Express Travel Related
Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
For the second and third elements—performance and breach—Ware’s affidavit
stated that KJ Environmental “provided the engineering consulting services,” and
Mailloux “default[ed] in paying the fees due.” The invoices described the type and
nature of the environmental consulting services provided, as well as the date and cost
of the services. Together with Ware’s affidavit testimony authenticating and
corroborating them, the invoices show both performance and breach. See Ramirez v.
Coca-Cola Refreshments USA, Inc., No. 01-13-00278-CV, 2013 WL 5761315, at *3 (Tex.
App.—Houston [1st Dist.] Oct. 22, 2013, no pet.) (mem. op.).
Fourth and finally, the invoices set out a balance of $12,957.43 connected with
environmental and engineering services provided to Mailloux. In her affidavit, Ware
stated that “the amount owed is $12,957.43[,]” and “all offsets and credits have been
given and applied” to Mailloux’s debt. This language is sufficient to support summary
judgment. See Albright v. Good Samaritan Soc’y-Denton Vill., No. 02-16-00090-CV,
2017 WL 1428724, at *3 (Tex. App.—Fort Worth Apr. 20, 2017, no pet.) (mem. op.)
9
(holding affidavit statement that “all just and lawful offsets, payments[,] and credits to
this account have been allowed” is sufficient to support summary judgment); see also
Emiabata v. Nat’l Capital Mgmt., LLC, No. 03-10-00373-CV, 2011 WL 4924124, at *3–
4 (Tex. App.—Austin Oct. 13, 2011, no pet.) (mem. op.) (holding affidavit statement
that a certain balance remained on a note “[a]fter all offsets, credit and payment[s]
have been applied” was sufficient to support summary judgment). The summary
judgment evidence conclusively established that KJ Environmental was entitled to
prevail on each and every element of its breach-of-contract cause of action.
b. Attorney’s Fees
In its judgment, the trial court also awarded KJ Environmental $4,000 in
attorney’s fees for services rendered through the date of trial, $9,000 if the matter is
appealed to the Court of Appeals, and $9,000 if the matter is appealed to the Texas
Supreme Court. Section 38.001(8) of the Texas Civil Practice and Remedies Code
authorizes the award of attorney’s fees in this case. Tex. Civ. Prac. & Rem. Code
Ann. § 38.001(8).
To support its claims for attorney’s fees, KJ Environmental attached the
affidavit of its attorney Sawko. In his affidavit, Sawko averred that he had practiced
law in Denton County since 1989 and had handled hundreds of debt collection cases.
Based on his years of practice, he testified that the reasonable and necessary attorney’s
fees in this case “up to and including [s]ummary [j]udgment” were $4,000. Further, he
stated that “should an appeal to the Court of Appeals be filed, . . . attorney’s fees in
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the amount of $9,000 to defend or respond to same . . . are usual and customary fees
charged in Denton County, Texas.” In addition, he swore that if either party sought
review to the Texas Supreme Court, “the usual and customary attorney fee for
services that [Sawko] will have to perform is $9,000.00.” Finally, he stated that all of
the fees were “reasonable and necessary fees and charges for those services in a
collection matter.” Sawko’s affidavit was sufficient to support KJ Environmental’s
attorney’s fees. See Law Office of David E. Williams, II, P.C. v. Fort Worth Tex. Magazine
Venture, LP, No. 02-10-00373-CV, 2011 WL 2651865, at *3 (Tex. App.—Fort Worth
July 7, 2011, no pet.) (mem. op.) (stating that “[w]ell-settled law recognizes that an
uncontroverted affidavit of the attorney representing a claimant constitutes expert
testimony on reasonableness that will support an award of attorney’s fees in a
summary judgment proceeding”); see also Albright, 2017 WL 1428724, at *5–7
(examining an attorney’s fee affidavit by Sawko in support of a summary judgment).
c. Controverting Evidence
Once a movant meets its burden of establishing each element of a claim on
which it seeks summary judgment, the burden shifts to the nonmovant to disprove or
raise an issue of fact as to at least one of those elements. Amedisys, Inc. v. Kingwood
Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). To sustain her burden,
Mailloux points to “evidence” she filed which disputes that KJ Environmental
provided environmental services. However, the “evidence” that she references was
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not filed in response to the motion for summary judgment. Rather, all of the
documents were filed either with her answer or her request for continuance.
Rule 166a(c) provides that “[e]xcept on leave of court, the adverse party, not
later than seven days prior to the day of the hearing may file and serve opposing
affidavits or other written response.” Tex. R. Civ. P. 166a(c). “Answer,” as used in
Rule 166a(c), means an answer in response to the summary judgment motion, not an
answer filed by a defendant to a plaintiff’s petition. Clear Creek Basin Auth.,
589 S.W.2d at 677; Batis v. Taylor Made Fats, Inc., 626 S.W.2d 605, 607 (Tex. App.—
Fort Worth 1981, writ ref’d n.r.e.). When presenting summary judgment proof, a
party must specifically identify the supporting proof on file that it seeks to have
considered by the trial court. Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd.,
190 S.W.3d 742, 746 (Tex. App.—San Antonio 2005, no pet.). Mailloux’s “evidence”
was not filed or identified in response to the motion for summary judgment and
therefore cannot be considered as summary judgment evidence.
d. Deemed Admissions
Next, Mailloux argues that deemed admissions cannot support the summary
judgment because KJ Environmental’s assertion that Mailloux did not timely respond
to the request for admissions is not supported by the record.5 We agree. While KJ
5
After all briefs were filed, KJ Environmental filed its “Supplement to Court’s
Record” in the court of appeals. In the document, it requested that this court
supplement its record to include two attached documents: (1) a copy of the letter sent
to Mailloux enclosing Plaintiff’s Request for Disclosure, Plaintiff’s First Request for
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Environmental attached a copy of the request for admissions as summary judgment
evidence, it failed to offer summary judgment evidence that a response was not timely
served. Tex. R. Civ. P. 198.2(c) (“If a response is not timely served, the request is
considered admitted without the necessity of a court order.”). However, the
discovery is not needed to support the motion for summary judgment. As set out
above, KJ Environmental’s breach-of-contract claim is established by other
competent summary judgment evidence.
We hold that the trial court did not err in granting KJ Environmental’s motion
for summary judgment. We overrule Mailloux’s second issue.
3. Notice of Summary Judgment Hearing
In Mailloux’s third issue, she urges this court to modify the law regarding the
notice of summary judgment hearings. Citing prior cases from this court, Mailloux
contends that “[c]ase law is chipping away at the stringent requirements set forth by
the Rules and should be modified to protect the due process of nonmovants.” See
Caudle v. Oak Forest Apts., No. 02-14-00308-CV, 2015 WL 9244874, at *5 (Tex.
App.—Fort Worth Dec. 17, 2015, pet. denied) (mem. op.) (holding notice sufficient
Production, and Plaintiff’s First Request for Admissions and (2) a print-out from the
United States Postal Service showing that the letter and the enclosures were delivered
on June 5, 2019. In response, Mailloux filed a motion to strike requesting that the
supplemental record be stricken. Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex. App.—El
Paso 1995, no writ) (“It is elementary that, with limited exceptions not material here,
an appellate court may not consider matters outside the appellate record.”). We grant
the motion to strike.
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“because Caudle knew of the hearing (and appeared at it), [and] she had the
opportunity to let the court know prior to or at that hearing that she had not received
the summary judgment motion to obtain an opportunity to respond to the motion”);
Magnuson v. Mullen, 65 S.W.3d 815, 824 (Tex. App.—Fort Worth 2002, pet. denied)
(holding that a party need only give reasonable notice that a hearing on a motion for
summary judgment has been rescheduled); Int’l Ins. Co. v. Herman G. West, Inc.,
649 S.W.2d 824, 825 (Tex. App.—Fort Worth 1983, no writ) (holding that after a
party has been served with notice of a motion for summary judgment in one term of
court, the motion may be heard at the later term without service of another notice—
all that is required is “reasonable” notice of the hearing).
But, unlike the cases Mailloux cites, this is neither a case where the nonmovant
did not have notice of the summary judgment hearing nor a case where the
nonmovant failed to receive “reasonable” notice of a reset hearing. Rather, at the
conclusion of the hearing on Mailloux’s request for a continuance of the summary
judgment hearing, the trial court granted Mailloux’s request for a continuance and
gave actual notice of the new hearing date and time.
THE COURT: I will continue this for 60 days. And as a matter of fact,
I’m going to get you a new trial date today. That way [ ] there will be no
confusion on what the date will be.
....
(Pause in proceedings.)
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THE COURT: All right. Back on the record. This matter has been
reset on the submission docket for November the 13th at 11:00 a.m. in
this courtroom. And with that - -
MR. SAWKO: Could I ask a question of Ms. Mailloux, just - - and I
didn’t mean to interrupt you, Judge, but I want to make sure - - You’ve
got notice of it. Do you understand that that’s the date - -
MS. MAILLOUX: Yes. I just wrote it down.
MR. SAWKO: Okay. I just want to make sure the record’s really clear,
that she’s here today, she has notice, there’s no additional notices we
have to give her - -
THE COURT: Correct.
MR. SAWKO: - - relating to that, that she - -
MS. MAILLOUX: No, I have an attorney, environmental right here
that - -
....
THE COURT: So - - so again, what he’s saying is this Court nor he will
send out any additional notices. This is your date, okay?
MS. MAILLOUX: Okay. No problem. I have it written down.
Mailloux made no objection to the reset date. Further, she made no request for
additional notice.
By failing to object, Mailloux waived any complaint that she may have had to
either the form or substance of the notice of the reset summary judgment hearing. See
Hatler v. Moore Wallace N. Am., Inc., No. 01-07-00181-CV, 2010 WL 375807, at *1
(Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (“[L]ack of proper
notice of a summary judgment hearing is a non-jurisdictional defect that the
15
nonmovant can waive.”). To the extent that Mailloux is making a due process claim,
due process only requires that a party be given notice and an opportunity to be heard
at a meaningful time and in a meaningful manner. Tex. Integrated Conveyor Sys., Inc. v.
Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 363 (Tex. App.—Dallas 2009, pet.
denied). As Mailloux acknowledged at the continuance hearing, she had notice of the
reset hearing, which was set more than sixty days away, thereby enabling Mailloux to
have a meaningful opportunity to be heard. We overrule Mailloux’s third issue.
IV. CONCLUSION
Having overruled all of Mailloux’s issues, we affirm the trial court’s summary
judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: October 29, 2020
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