Opinion issued June 27, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00315-CV
                           ———————————
               LUXURKEY MANAGEMENT LLC, Appellant
                                        V.
  ELENI ANTONELLOS FULLER AND MARIA ANTONELLOS BASSA,
                        Appellees


                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-52683


                         MEMORANDUM OPINION

      The trial court granted sisters Eleni Antonellos Fuller and Maria Antonellos

Bassa summary judgment to remove a mechanic’s and materialman’s lien placed on

their real property by Luxurkey Management LLC after Luxurkey paid, without

knowledge or consent of Fuller or Bassa, delinquent property taxes. The trial court
declared, as a matter of law, that Luxurkey’s lien was invalid and that Fuller should

recover damages under the Fraudulent Lien Act. See TEX. CIV. PRAC. & REM. CODE

§ 12.002. On appeal, Luxurkey does not challenge either of these rulings; instead, it

contends the summary judgment must be set aside because the trial court erred in its

disposition of Luxurkey’s counterclaim for quantum meruit and affirmative defense

of offset and reimbursement. We affirm.

                                    Background

      Eleni Antonellos Fuller and her sister, Maria Antonellos Bassa, own real

property in Houston, Texas. The property has been in the family for more than 50

years and is Bassa’s homestead. The family fell behind on the property taxes for tax

years 2014 to 2016 and owed $78,077.70 in delinquent taxes.

      Without the knowledge or consent of either Fuller or Bassa, Luxurkey

Management LLC made a payment through the county tax assessor’s website to cure

the delinquency. Seven days later, Luxurkey demanded in writing that Fuller

reimburse the company for $104,074.62, which Luxurkey alleged included amounts

for property taxes, a 25% redemption fee, and attorney’s fees. Fuller did not respond,

and Luxurkey mailed another demand letter. The second demand letter stated that it

was “formal notice of [Luxurkey’s] intent to file a mechanic’s and materialman’s

lien against the real property and improvements.” Luxurkey subsequently filed an

“Affidavit of Luxurkey Management LLC Claiming a Mechanic’s and


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Materialman’s Lien” in the county real property records. Luxurkey filed the lien on

the property to “secure payment” for $104,074.62.

      Fuller then filed a lawsuit seeking a declaration that Luxurkey’s lien was null

and void because it violated a certain provision of the Property Code as well as the

Fraudulent Lien Act. Luxurkey answered and asserted counterclaims against both

Fuller and Bassa to foreclose the lien or, alternatively, to recover under the doctrine

of quantum meruit.

      After an adequate time for discovery had passed, Fuller moved for a

traditional summary judgment on the argument that the evidence conclusively

established the elements of her claims and conclusively negated at least one element

of Luxurkey’s counterclaims and (2) a no-evidence summary judgment on

Luxurkey’s counterclaims. The trial court granted these motions, declared that the

lien was invalid, awarded Fuller $10,000 under the Fraudulent Lien Act (as well as

costs and attorney’s fees), and dismissed Luxurkey’s counterclaims. The summary-

judgment order states that it “is final, disposes of all claims and all parties, and is

appealable.”

                                      Analysis

      Luxurkey argues the summary judgment must be set aside because the trial

court “ignored” Luxurkey’s quantum meruit counterclaim and failed to offset the




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damages awarded to Fuller by the amount of the lien. We address each of these

arguments in turn.

A.    Summary judgments are reviewed de novo

      Luxurkey argues the summary judgment must be set aside as an abuse of the

trial court’s discretion. We, however, review a trial court’s summary-judgment order

de novo. See City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258

(Tex. 2018); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

      To prevail on a traditional motion for summary judgment, the movant has the

burden to show that no genuine issue of material fact exists and that the trial court

should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); Oncor Elec., 539

S.W.3d at 258–59; KPMG Peat Markwick v. Harrison Cty. Hous. Fin. Corp., 988

S.W.2d 746, 748 (Tex. 1999). In deciding whether there is a disputed material fact

issue precluding summary judgment, we take the evidence favorable to the

nonmovant as true. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548–

49 (Tex. 1985). Every reasonable inference must be indulged in favor of the

nonmovant and any doubts resolved in its favor. Id.

      A trial court must grant a no-evidence motion for summary judgment if the

movant identifies at least one element of a claim or defense for which the nonmovant

would have the burden of proof at trial and the nonmovant produces no more than a

scintilla of evidence to raise a material fact question as to the challenged element.


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See TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex.

App.—Houston [1st Dist.] 2009, no pet.). More than a scintilla of evidence exists

when the evidence presented would allow reasonable and fair-minded people to

differ in their conclusions. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,

106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

      In general, a plaintiff moving for summary judgment is under no obligation to

negate a defendant’s pleaded affirmative defenses. Id. An affirmative defense

precludes summary judgment only if each element of the affirmative defense is

supported by summary judgment evidence. Woodside v. Woodside, 154 S.W.3d 688,

691–92 (Tex. App.—El Paso 2004, no pet.). Thus, to stave off a summary judgment

based on an affirmative defense, the nonmovant must raise a fact issue as to each

element of the defense. See “Moore” Burger, Inc. v. Phillips Petroleum Co., 492

S.W.2d 934, 936–37 (Tex. 1972); Mulvey v. U.S. Bank Nat’l Assoc., 570 S.W.3d

355, 359 (Tex. App.—El Paso 2018, no pet.) (“[A]n affirmative defense only

prevents the granting of summary judgment if each element of the affirmative

defense is supported by summary judgment evidence.”); Tesoro Petroleum Corp.,

106 S.W.3d at 124 (explaining that party raising affirmative defense in opposition

to summary-judgment motion “must either (1) present a disputed fact issue on the

opposing party’s failure to satisfy his own burden of proof or (2) establish at least


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the existence of a fact issue on each element of his affirmative defense by summary

judgment proof”).

      With these principles in mind, we review de novo the summary judgment.

B.    The trial court did not err in dismissing Luxurkey’s counterclaim

      Luxurkey argues that the summary judgment must be set aside because the

trial court “ignored” Luxurkey’s quantum meruit counterclaim in rendering a

judgment stating that it “is final, disposes of all claims and parties, and is

appealable.” The record does not support Luxurkey’s argument.

      Fuller moved for summary judgment on Luxurkey’s quantum meruit

counterclaim on both traditional and no-evidence grounds. Luxurkey expressly

defended its quantum meruit counterclaim in its summary-judgment response. And

the trial court disposed of the quantum meruit counterclaim in its summary-judgment

order, stating that Fuller “is granted summary judgment on Defendant’s claims

seeking to foreclose its lien and for quantum meruit alleged in its Original Answer”

and that “those claims are hereby dismissed.” Thus, Luxurkey’s assertion that its

counterclaim was never resolved in the summary-judgment proceedings lacks merit.

      To the extent Luxurkey argues that its quantum meruit counterclaim should

have survived dismissal, that argument also is unsupported by the record. Quantum

meruit is an equitable theory of recovery intended to prevent unjust enrichment. See

In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005). The law implies


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a promise to pay for materials furnished or services rendered that are knowingly

accepted. Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944

(Tex. 1990); De Leon v. Saldana, 745 S.W.2d 55, 57 (Tex. App.—San Antonio

1987, writ denied). However, if the recipient is unaware of the work or services being

performed at the time of performance, there is no basis for a recovery in quantum

meruit. See De Leon, 745 S.W.2d at 57; Skyline Commercial, Inc. v. ISC Acquisition

Corp., No. 05-17-00028-CV, 2018 WL 4039863, at *6 (Tex. App.—Dallas Aug. 23,

2018, pet. denied) (mem. op.). To recover, a claimant thus must prove (1) it provided

valuable services or materials, (2) to the party sought to be charged, (3) which were

accepted, used, and enjoyed by that party, (4) under such circumstances as

reasonably notified the party that the claimant, in performing, expected to be paid

by the party. Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.

1992).

      Fuller and Bassa argue there is no evidence that they knowingly accepted

Luxurkey’s property tax payment or knew when Luxurkey paid the property taxes

that Luxurkey expected to be reimbursed. We agree. Luxurkey presented evidence

that (1) the property taxes were delinquent; (2) a payment to cure the delinquency

was made on May 11, 2017; (3) Luxurkey demanded repayment from Fuller in

writing on May 18, 2017, and on July 11, 2017; and (4) Luxurkey filed its affidavit

“Claiming Mechanic’s and Materialman’s Lien” in the Harris County Real Property


                                          7
Records on July 12, 2017. None of this is evidence that Fuller or Bassa knew

Luxurkey was paying the delinquent property taxes or consented to that payment at

the time of payment; it is, at most, evidence of Luxurkey’s effort to obtain

reimbursement from Fuller after the fact. See Heldenfels, 832 S.W.2d at 40–41

(rejecting subcontractor’s quantum meruit claim against City based on absence of

evidence that City knew subcontractor anticipated payment from City before

delivering construction materials). Consequently, the trial court’s summary

dismissal of Luxurkey’s quantum meruit counterclaim was not erroneous.

C.    Luxurkey waived its argument that summary judgment was precluded
      by an affirmative defense

      Luxurkey also argues that the summary judgment must be set aside because

the trial court “ignored” Luxurkey’s affirmative defense by failing to offset the

damages awarded to Fuller by the amount of the lien. Even assuming offset is

available as an affirmative defense, Luxurkey did not raise it in response to Fuller

and Bassa’s summary-judgment motion. Instead, Luxurkey only argued that Fuller

had not conclusively established the elements of her claims. To defeat summary

judgment by raising an affirmative defense. Luxurkey was required to present

argument and evidence raising that defense. Brownlee v. Brownlee, 665 S.W.2d 111,

112 (Tex. 1984). It was not enough to simply plead the affirmative defense. Am.

Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Lunsford Consulting

Grp., Inc. v. Crescent Real Estate Funding VIII, L.P., 77 S.W.3d 473, 475–76 (Tex.

                                         8
App.—Houston [1st Dist.] 2002, no pet.). Luxurkey was required to produce

summary-judgment evidence in support of its affirmative defense. Brownlee, 665

S.w.2d at 112. Because Luxurkey did not, its affirmative-defense argument is

waived. Id.

                                   Conclusion

      Having rejected each of Luxurkey’s arguments for setting aside the trial

court’s summary judgment, we affirm.




                                            Sarah Beth Landau
                                            Justice

Panel consists of Justices Lloyd, Landau, and Countiss.




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