                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00154-CV


JORGE CAMARILLO                                               APPELLANT
                                                            AND APPELLEE

                                     V.

CABINETS BY MICHAEL, INC. AND                                  APPELLEES
MICHAEL WELLS                                             AND APPELLANTS

                                  ----------

         FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 342-266475-13



                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     Appellant and Cross-Appellee Jorge Camarillo and Appellees and Cross-

Appellants Cabinets by Michael, Inc. (CBM) and Michael Wells appeal from the

trial court’s final judgment in this Fair Labor Standards Act (FLSA) case. As


     1
      See Tex. R. App. P. 47.4.
relevant to this appeal, the trial court rendered judgment in favor of Camarillo for

unpaid overtime and awarded him $1,585.50 in actual damages, $1,585.50 in

liquidated damages, $38,640.50 in reasonable and necessary attorney’s fees,

and $1,738.25 in costs.

      In four issues, Camarillo challenges the trial court’s disposition of his

overtime claim, and in three issues, CBM and Wells contest the trial court’s fees

and costs awards. We affirm in part, reverse in part, and remand.

                                I. BACKGROUND2

      On September 7, 2012, Camarillo sued CBM and Wells, alleging two

causes of action under the FLSA: Camarillo claimed that (1) CBM and Wells

failed to pay him his additional half-time wage for all of the overtime hours he

worked from February 2006 to July 19, 2012 (Overtime Claim) and (2) CBM and

Wells retaliated against him by constructively discharging him for pursuing his

overtime claim (Retaliation Claim). See 29 U.S.C.A. § 207(a)(1) (West 2016),

§ 215(a)(2)–(3) (West 1998). In answer, CBM and Wells filed a general denial.

Eventually, CBM and Wells moved for traditional summary judgment on both of

Camarillo’s claims, which the trial court denied.

      CBM and Wells subsequently filed a limited motion to reconsider the trial

court’s order denying their summary judgment motion. In that motion, CBM and


      2
       The procedural history of this case is quite lengthy and complex. We set
forth only the facts necessary to our disposition. See Laster v. Thomas,
487 S.W.3d 772, 772 (Tex. App.—Dallas 2016, no pet.).

                                         2
Wells asked the trial court to find, pursuant to rule of civil procedure 166a(e), that

the summary judgment evidence established as a matter of law that Camarillo

had worked a total of 317.1 hours of overtime from July 5, 2009, through July 5,

2012, and that his hourly rate during that period was $10.00 per hour. The trial

court granted the limited motion to reconsider. CBM and Wells then filed a sworn

petition to confess judgment pursuant to rule of civil procedure 314, by which

they sought to confess judgment on Camarillo’s overtime claim. See Tex. R. Civ.

P. 314.

      In their petition to confess judgment, CBM and Wells asserted that on July

5, 2012, Camarillo filed suit under the FLSA to recover damages for his unpaid

overtime “for the prior three (3) years”—i.e., from July 5, 2009, through July 5,

2012.3 They claimed that the trial court’s order granting their limited motion to

reconsider conclusively established that Camarillo had worked 317.1 hours of

overtime from July 5, 2009, through July 5, 2012, and that his hourly wage at all

      3
        In his petition, Camarillo alleged that he had worked for CBM and Wells
“from on or about February 2006 through on or about July 19, 2012”; that
“[d]uring the relevant time period, [he had] worked an average of 50 hours per
week . . . but was not paid the extra half-time rate for any overtime hours [he]
worked”; and that he was “claim[ing] the halftime overtime rate for each overtime
hour [he had] worked.”

      The record shows that CBM’s and Wells’s attempt to limit Camarillo’s
overtime claim to the three-year period prior to his suit was based not on
Camarillo’s pleadings but on their argument that the FLSA provides a three-year
maximum statute of limitations for overtime wage claims. But CBM and Wells
made no reference to the statute of limitations in their petition to confess
judgment, nor had they pleaded the statute of limitations as an affirmative
defense in their answer to Camarillo’s suit.

                                          3
times during that period was $10.00 per hour. CBM and Wells alleged that these

two facts established Camarillo was entitled to recover a total of $1,585.50 in

unpaid overtime.4 See 29 U.S.C.A. § 207(a)(1), § 216(b) (West 1998). CBM and

Wells further alleged that under the FLSA, Camarillo was entitled to recover an

additional $1,585.50 in liquidated damages. See id. § 216(b). Accordingly, they

conceded Camarillo was entitled to $3,171.00 in damages on his overtime claim

and confessed judgment for that amount.           Additionally, CBM and Wells

acknowledged that under the FLSA, Camarillo was entitled to recover his

reasonable attorney’s fees and costs. However, they alleged that Camarillo had

not provided them with the amount of his reasonable attorney’s fees and costs

and that they therefore were unable to confess judgment on that portion of his

overtime claim.

      Upon considering CBM’s and Wells’s sworn petition to confess judgment,

the live pleadings, and its previous orders—including its order granting CBM’s

and Wells’s limited motion to reconsider—the trial court signed a partial judgment

in which it found that Camarillo was entitled to recover from CBM and Wells “a

total of $1,585.50 for unpaid overtime wages, an additional equal amount of

$1,585.50 as liquidated damages, plus his reasonable and necessary attorneys’


      4
       With respect to his overtime claim, Camarillo’s petition alleged that CBM
and Wells had only failed to pay him his $5.00 per hour half-time rate for the
overtime hours he had worked. Thus, CBM and Wells reached the sum of
$1,585.50 by multiplying Camarillo’s $5.00 half-time rate times the 317.1 hours of
overtime.

                                        4
fees and costs” pursuant to section 216(b) of the FLSA.5 Accordingly, the partial

judgment provided,

      IT IS ORDERED that Plaintiff shall recover from Defendants, jointly
      and severally, the total sum of $3,171.00 in damages for
      Defendants’ failure to pay Plaintiff overtime wages as required by the
      FLSA.

      IT IS ORDERED that Plaintiff shall recover from Defendants, jointly
      and severally, his reasonable and necessary attorneys’ fees and
      costs pursuant to Section 216(b) of the FLSA based on his overtime
      wage claim, which amounts shall be proven up by Plaintiff and
      determined by the Court at a later proceeding.

      IT IS ORDERED that all other relief requested by Plaintiff for
      payment of his unpaid overtime wages is hereby denied.

Left pending were Camarillo’s retaliation claim and a determination of the amount

of his reasonable attorneys’ fees and costs on his overtime claim.

      Camarillo tried his retaliation claim to a jury, which found in favor of CBM

and Wells.6    The trial court then conducted a bench trial on the issue of

Camarillo’s reasonable attorneys’ fees and costs. In its final judgment, the trial

      5
         Also in its partial judgment, the trial court granted CBM and Wells leave to
amend their pleadings to add limitations as an affirmative defense. CBM and
Wells subsequently did so, but by the time they did so, the trial court had already
granted their limited motion to reconsider and signed the partial judgment, both of
which contained a damages calculation that was premised upon a three-year
limitations period. Camarillo, however, did not raise any issue on appeal
regarding CBM’s and Wells’s failure to timely plead limitations, a fact his counsel
confirmed at oral argument, stating that it “is not an issue for us”; that “[he] did
not object to filing the statute of limitations as a defense”; and that he was not
asking this court to reverse the trial court’s judgment on the ground that CBM and
Wells were allowed to late-file their limitations defense.
      6
         On appeal, neither party challenges the disposition of Camarillo’s
retaliation claim.

                                         5
court incorporated its partial judgment and, accordingly, rendered judgment in

favor of Camarillo on his overtime claim and awarded him $1,585.50 in actual

damages and $1,585.50 in liquidated damages.              It also awarded Camarillo

$38,640.50 in reasonable and necessary attorney’s fees and $1,738.25 in costs.

      In four issues, Camarillo argues the trial court erred by granting CBM’s and

Wells’s limited motion to reconsider, by granting their sworn petition to confess

judgment, by rendering its partial judgment, and by incorporating the partial

judgment into the final judgment. And in three issues, CBM and Wells contend

that the trial court erred in its fees and costs award.

      As we explain below, we hold that the trial court erred by rendering a final

judgment based upon its interlocutory partial judgment.

                  II. THE LIMITED MOTION TO RECONSIDER

      The linchpin of Camarillo’s argument is his contention that the trial court

erred by granting CBM’s and Wells’s limited motion to reconsider.          That is,

Camarillo contends that the trial court erred by rendering final judgment on his

overtime claim because that rendition was based upon the trial court’s prior ruling

granting CBM’s and Well’s limited motion to reconsider. And Camarillo argues

the trial court’s ruling on the limited motion to reconsider was erroneous because

CBM and Wells failed to carry their burden to prove that he worked a total of

317.1 hours of overtime from July 5, 2009, through July 5, 2012.




                                          6
                             A. STANDARD OF REVIEW

      Insofar as CBM’s and Wells’s limited motion to reconsider asked the trial

court to reconsider its ruling on their motion for traditional summary judgment, the

standards applicable to a motion for traditional summary judgment apply. To

prevail on a motion for traditional summary judgment, the movant must prove that

no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law.    See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).         We review a

summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,

862 (Tex. 2010).     In deciding whether a disputed material fact issue exists

precluding summary judgment, we resolve every reasonable inference in favor of

the nonmovant and take all evidence favorable to it as true.            Castillo v.

Westwood Furniture, Inc., 25 S.W.3d 858, 860 (Tex. App.—Houston [14th Dist.]

2000, no pet.).

                  B. CBM’S AND WELLS’S MOTION TO RECONSIDER

      After the trial court denied their motion for traditional summary judgment,

CBM and Wells filed their limited motion to reconsider pursuant to rule of

procedure 166a(e). That rule provides,

      (e) Case not Fully Adjudicated on Motion. If summary judgment
      is not rendered upon the whole case or for all the relief asked and a
      trial is necessary, the judge may at the hearing examine the
      pleadings and the evidence on file, interrogate counsel, ascertain
      what material fact issues exist and make an order specifying the
      facts that are established as a matter of law, and directing such
      further proceedings in the action as are just.

                                         7
Tex. R. Civ. P. 166a(e). In their limited motion to reconsider, CBM and Wells

moved the trial court to order that two facts were established as a matter of law:

(1) that from July 5, 2009, to July 5, 2012, Camarillo’s hourly rate was $10.00 per

hour; and (2) that from July 5, 2009, to July 5, 2012, Camarillo worked exactly

317.1 hours of overtime. To establish these facts, CBM and Wells relied on two

pieces of summary judgment evidence: an affidavit from Wells and a portion of

Camarillo’s deposition testimony. And in their brief, CBM and Wells assert that a

letter offering tender they sent to Camarillo independently establishes those

facts.

                                 1. The Wells Affidavit

         In pertinent part, Wells’s affidavit stated,

         2.     “I am the president and owner of the defendant in this case,
                Cabinets by Micha[e]l, Inc. (“Cabinets by Michael”). I have
                personally read and reviewed Defendants’ Motion for
                Summary Judgment and all of the factual statements therein
                are within my personal knowledge and are true and correct.

         ....

         5.     “I have personally reviewed the time records kept by Cabinets
                by Michael. Those records reflect that from Sunday, July 5,
                2009, until Thursday, July 5, 2012, [Camarillo] worked exactly
                317.1 hours of overtime (i.e., he worked 317.1 hours in excess
                of forty hours per week). During this time period, [Camarillo’s]
                hourly rate was $10.00 per hour.

         ....

         9.     “On January 29, 2014, I along with Cabinets by Michael,
                through counsel, tendered a cashier’s check in the total
                amount of $3,171.00, which constituted full payment for the

                                              8
              overtime hours worked by Plaintiff (or $1,585.50) plus 100% of
              those payments as liquidated damages under the [FLSA] (or
              $1,585.50).

Copies of the time records referenced in paragraph 5 were not attached to the

affidavit.

                      2. Camarillo’s Deposition Testimony

       The excerpt of Camarillo’s deposition read as follows:

       Q.     Mr. Camarillo, do the time cards that -- are the copies of the
              time cards that are in front of you, do they appear to be
              correct?

       A.     Yes.

       Q.     So if the time cards show that you were owed 317.1 hours of
              overtime, would that be correct?

       A.     Yes.

       Q.     And just to be clear, when you worked more than 40 hours,
              you were paid for all those hours, and the lawsuit deals only
              with the additional amounts you were not paid. ls that correct?

       A.     Yes.

       ....

       Q.     When you left Cabinets by Michael, do you know what your
              hourly rate of pay was, Mr. Camarillo?

       A.     They paid 10.

                 3. The January 29, 2014 Letter Offering Tender

       Attached to Wells’s affidavit was the January 29, 2014 letter offering tender

he referenced in paragraph 9 of his affidavit. In pertinent part, the letter, directed

to Camarillo’s counsel, states:

                                          9
      Enclosed is a cashier’s check in the sum of $3,171.00 made payable
      to Jorge Camarillo and you as his attorney. This check represents
      an unconditional tender of payment of overtime due to Jorge
      Camarillo as alleged in the above referenced lawsuit. Based upon
      Company records (previously provided to you) he was entitled to
      receive a total of 317.1 hours of overtime. His hourly rate was
      $10.00 per hour. He was paid the $10.00/hour for such hours but
      did not receive the additional $5.00/hour to which he was entitled.
      The amount owed for back pay is $1,585.50. (317.1 hours x $5.00 =
      $1,585.50)[.] My client is also tendering 100% of that amount as
      liquidated damages which may have been due under the Fair Labor
      Standards Act for a total of $3,171.00.         ($1,585.50 x 2 =
      $3,171.00)[.]

In his affidavit, Wells averred that Camarillo rejected this payment.

                           4. The Trial Court’s Ruling

      Based upon Wells’s affidavit and Camarillo’s deposition testimony, the trial

court granted the limited motion to reconsider and found that the following facts

were established as a matter of law: (1) Camarillo had worked a total of 317.1

hours of overtime from July 5, 2009, to July 5, 2012; and (2) Camarillo’s hourly

rate from July 5, 2009, to July 5, 2012, was $10.00.

     C. CBM AND WELLS DID NOT MEET THEIR SUMMARY-JUDGMENT BURDEN

      Camarillo argues that neither Wells’s affidavit nor his own deposition

testimony establishes he worked a total of 317.1 hours of overtime from July 5,

2009, to July 5, 2012. We examine each exhibit in turn.

                               1. Wells’s Affidavit

      Camarillo contends that with respect to the 317.1-hour calculation, Wells’s

affidavit is conclusory because Wells averred that he had reached that number

by reviewing CBM’s time records, but CBM and Wells neither attached sworn or

                                         10
certified copies of those records to the affidavit nor served sworn or certified

copies of those records along with the affidavit as required by rule of civil

procedure 166a(f). See Tex. R. Civ. P. 166a(f).

                            a. Paragraph 5 is Conclusory

      Rule 166a(f) provides in relevant part that “[s]worn or certified copies of all

papers or parts thereof referred to in an affidavit shall be attached thereto or

served therewith.” Id. The failure to attach or serve sworn or certified copies of

papers referenced in a summary-judgment affidavit may leave the affidavit

conclusory. See Acrey v. Kilgore & Kilgore, PLLC, No. 05-15-01229-CV, 2017

WL 1173830, at *3 (Tex. App.—Dallas Mar. 30, 2017, no pet.) (mem. op.); Luke

v. Unifund CCR Parters, No. 02-06-444-CV, 2007 WL 2460327, at *6 (Tex.

App.—Fort Worth Aug. 31, 2007, no pet.) (mem. op.). Conclusory affidavits are

substantively defective and constitute no evidence. See Long v. Farris, No. 02-

17-00236-CV, 2018 WL 1192252, at *6 (Tex. App.—Fort Worth Mar. 8, 2018, no

pet.) (mem. op.) (stating that conclusory evidence is not competent summary

judgment proof and, therefore, constitutes no evidence); Luke, 2007 WL

2460327, at *6 (stating that an affidavit that is conclusory is substantively

defective). The failure to attach or serve sworn or certified copies of papers

referred to in a summary-judgment affidavit leaves the affidavit conclusory if the

referenced papers are what provides the affidavit with a factual basis.         See

Acrey, 2017 WL 1173830, at *3; Luke, 2007 WL 2460327, at *6–7.



                                        11
      Wells’s affidavit is unmistakable in its expression that the factual basis of

his conclusion that Camarillo worked “exactly 317.1 hours of overtime” from

July 5, 2009, to July 5, 2012, was his review of CBM’s time records.          This

testimony implicates the requirements of Rule 166a(f) because it expressly

references “papers or parts thereof,” namely, CBM’s time records. See Tex. R.

Civ. P. 166a(f). Because Wells’s affidavit is clear that it was his review of CBM’s

time records that provided the factual basis for his conclusion that those records

showed Camarillo worked exactly 317.1 hours of overtime, the failure to attach or

serve sworn or certified copies of the time records Wells referenced in his

affidavit rendered conclusory his testimony regarding what those records

showed. See Acrey, 2017 WL 1173830, at *3; Luke, 2007 WL 2460327, at *6–7.

Thus, because it was conclusory, Wells’s testimony that CBM’s time records

showed Camarillo worked exactly 317.1 hours of overtime constituted no

evidence of the number of overtime hours Camarillo worked.             See Long,

2018 WL 1192252, at *6; see also Brown v. Mesa Distribs, Inc., 414 S.W.3d 279,

287 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that an affidavit that

states only legal or factual conclusions without providing factual support is not

proper summary judgment evidence).

    b. The Documents Camarillo Attached to his Response did not Cure
                     Wells’s Conclusory Affidavit

      To his response to the limited motion to reconsider, Camarillo attached

time records that CBM and Wells had produced in discovery. By attaching these


                                        12
records, CBM and Wells argue, Camarillo cured any defect in their failure to

attach the time records Wells referenced in his affidavit. But to the extent the trial

court could have relied on the records Camarillo attached, CBM’s and Wells’s

argument is unpersuasive.      There is no evidence that the records Camarillo

attached to his response are the same records that Wells testified he reviewed in

order to reach the 317.1-hour figure; thus, the conclusory nature of Wells’s

affidavit was not cured by the records Camarillo attached.

      Additionally, the records Camarillo attached contain contradictory figures

regarding the number of hours Camarillo worked.             The records Camarillo

attached included time cards and payroll statements. And as Camarillo notes in

his brief, for at least some pay periods, there is a discrepancy between the total

number of hours the time cards reflect Camarillo worked and the total number of

hours the payroll statements reflect that he worked.

      For instance, for the pay period beginning May 13, 2010, and ending May

19, 2010, the payroll statements show Camarillo worked a total of 45.50 hours,

while the time cards show he was clocked in for a total of 48.35 hours. Thus, the

payroll statements reflect Camarillo worked a total of 5.50 hours of overtime

during that period while the time cards support a conclusion that he worked a

total of 8.35 hours of overtime.         So too with the pay period beginning

September 9, 2010, and ending September 15, 2010: the payroll statements

show Camarillo did not work any overtime while the time cards support a

conclusion that he worked 1.64 hours of overtime. Thus, far from curing CBM’s

                                         13
and Wells’s failure to attach or serve certified or sworn copies of the records

Wells referenced in his affidavit, to the extent the records Camarillo attached to

his response can be considered as competent summary judgment evidence,

those records raise a genuine issue of material fact regarding the total number of

overtime hours Camarillo worked.

c. Paragraphs 2 and 9 do not Alternatively Establish the 317.1-Hour Figure

      CBM and Wells attempt to salvage Wells’s affidavit by arguing that two

additional portions of the affidavit provide competent evidence independent of

paragraph 5 establishing that Camarillo worked a total of 317.1 hours of

overtime. Those two additional portions are paragraph 2 and paragraph 9. We

note that CBM and Wells did not rely on either of these paragraphs in either their

motion for summary judgment or their limited motion to reconsider for the

purpose of establishing the number of overtime hours Camarillo worked.7 But in

any event, to the extent the trial court could have considered these additional

paragraphs when deciding the issue of whether CBM and Wells had conclusively

proved the amount of overtime Camarillo worked even though CBM and Wells

did not rely on that evidence for that purpose, those paragraphs, like paragraph



      7
       Indeed, in their limited motion to reconsider, the specific ground on which
CBM and Wells asserted that they were entitled to a finding that as a matter of
law, Camarillo worked 317.1 hours of overtime from July 5, 2009, through July 5,
2012, was that paragraph 5 of Wells’s affidavit and Camarillo’s deposition
testimony established that amount. And in his response to the limited motion to
reconsider, Camarillo focused solely on those specific pieces of evidence.

                                       14
5, fail to establish the number of overtime hours Camarillo worked. We consider

paragraph 2 and paragraph 9 in turn.

      As quoted in their brief, CBM and Wells say that their summary judgment

motion contained the factual statement that “it is undisputed that [Camarillo]

worked a total of 317.1 hours of overtime from July 5, 2009 until July [5], 2012,

which would require [CBM and Wells] to pay [Camarillo] overtime wages totaling

$1,585.50 (or 317.1 x $5.00).” They point out that in paragraph 2 of his affidavit,

Wells averred that he had “personally read and reviewed Defendants’ Motion for

Summary Judgment and all of the factual statements therein [were] within [his]

personal knowledge and [were] true and correct.” This testimony, they argue,

transformed the ordinary factual allegations in their summary judgment motion

into competent summary judgment evidence. To the contrary, however, factual

statements in a motion for summary judgment do not constitute competent

summary judgment evidence even if, as here, those facts are sworn to or verified

in a summary-judgment affidavit. See XTO Energy Inc. v. Nikolai, 357 S.W.3d

47, 60–61 (Tex. App.—Fort Worth 2011, pet. denied).

      In paragraph 9 of his affidavit, Wells averred that on January 29, 2014,

CBM and Wells “tendered a cashier’s check in the amount of $3,171.00, which

constituted full payment for the overtime hours worked by [Camarillo] (or

$1,585.50) plus 100% of those payments as liquidated damages under the

[FLSA] (or $1,585.50).” CBM and Wells argue this testimony was competent

summary judgment evidence that Camarillo worked a total of 317.1 hours of

                                        15
overtime since it was undisputed that Camarillo was only seeking his half-time

hourly rate of $5.00. Given Wells’s testimony that $1,585.50 of the payment

represented full payment for the overtime hours Camarillo worked, and given the

undisputed fact that Camarillo only sought $5.00 for every hour of overtime

worked, CBM and Wells argue that by dividing $1,585.50 by Camarillo’s $5.00

per hour half-time rate shows that Camarillo worked 317.1 hours of overtime.

But insofar as paragraph 9 supports an inference that Camarillo worked 317.1

hours of overtime, it nevertheless fails to provide a factual basis for that

calculation, rendering it conclusory. See Padilla v. Metro. Transit Auth. of Harris

Cty., 497 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

                     2. Camarillo’s Deposition Testimony

      Camarillo also argues that the excerpt from his deposition did not establish

that he worked 317.1 hours of overtime from July 5, 2009, through July 5, 2012.

CBM and Wells rely on the following deposition excerpt, arguing it supports the

trial court’s finding that Camarillo worked a total of 317.1 hours of overtime from

July 5, 2009, to July 5, 2012:

      Q.     Mr. Camarillo, do the time cards that -- are the copies of the
             time cards that are in front of you, do they appear to be
             correct?

      A.     Yes.

      Q.     So if the time cards show that you were owed 317.1 hours of
             overtime, would that be correct?

      A.     Yes.


                                        16
In this excerpt, Camarillo testified that the time records that were in front of him

were accurate and that if those records reflected he worked a total of 317.1 hours

of overtime, then that number would be correct.          This testimony does not

establish that Camarillo worked a total of 317.1 hours of overtime. And given

that the question is based upon an unsupported assumption, this testimony also

does not establish that the time records in front of him—records which are not in

the summary judgment record—reflected that he worked 317.1 hours of

overtime.

                    3. The January 29, 2014 Tender Letter

      CBM and Wells contend that their January 29, 2014 tender letter, which

was attached to Wells’s affidavit, constituted independent and competent

summary judgment evidence establishing that Camarillo worked a total of 317.1

hours of overtime from July 5, 2009, through July 5, 2012.          This, like their

arguments concerning paragraph 2 and paragraph 9 of Wells’s affidavit, is an

assertion they make for the first time on appeal, for the record shows they did not

rely on this letter to establish the number of overtime hours Camarillo worked in

either their motion for summary judgment or their limited motion to reconsider.

      With regard to the amount of Camarillo’s overtime, the tender letter tells

Camarillo’s counsel that “[b]ased upon Company records (previously provided to

[him]) [Camarillo] was entitled to receive a total of 317.1 hours of overtime.” Like

Wells’s essentially identical affidavit testimony, this statement asserts that the

factual basis for the 317.1-hour overtime calculation is CBM’s company records.

                                        17
And as with Wells’s affidavit testimony, the failure to provide the records upon

which that 317.1-hour calculation was based leaves that calculation without a

factual basis. Cf. Acrey, 2017 WL 1173830, at *3 (“[I]f records referenced in an

affidavit are what provides the affidavit with a factual basis, the absence of such

records will render the affidavit conclusory.”). Since CBM’s records are what

provides the tender letter with a factual basis for its assertion that Camarillo

worked 317.1 hours of overtime, the failure to provide those records renders that

assertion conclusory.8     Cf. id.   Moreover, even assuming the tender letter

contained competent summary judgment evidence of the number of overtime

hours Camarillo worked, as we noted above, the records Camarillo attached to

his response to the limited motion to reconsider raised a genuine issue of

material fact regarding the total number of overtime hours Camarillo worked.

      We conclude that CBM and Wells failed to carry their burden to establish

with competent summary judgment evidence that as a matter of law, Camarillo

worked exactly 317.1 hours of overtime from July 5, 2009, through July 5, 2012.

      8
        CBM and Wells suggest the tender letter is sufficient to support the trial
court’s order granting the limited motion to reconsider notwithstanding the fact
that the letter does not have the referenced records attached to it. They cite our
decision in Albright v. Good Samaritan Soc’y-Denton Village, No. 02-16-00090-
CV, 2017 WL 1428724, at *3 (Tex. App.—Fort Worth Apr. 20, 2017, no pet.)
(mem. op.), stating that in that case we held rule of civil procedure 166a(f) does
not require a party to attach copies of records that are referenced in a document
that is not an affidavit. But the issue with respect to the tender letter here is not
whether rule 166a(f) requires documents referenced in an attachment to an
affidavit to be attached to or served with the affidavit; rather, the issue is whether
the statement CBM and Wells attempt to rely upon to establish the amount of
Camarillo’s overtime is conclusory.

                                         18
Thus, the trial court erred by granting CBM’s and Wells’s limited motion to

reconsider and by finding pursuant to rule of civil procedure 166a(e) that

Camarillo worked exactly 317.1 hours of overtime from July 5, 2009, through

July 5, 2012.9

      III. THE SWORN PETITION IN CONFESSION OF JUDGMENT AND
                 INTERLOCUTORY PARTIAL JUDGMENT

      Camarillo also contends that the trial court erred by granting CBM’s and

Wells’s sworn petition to confess judgment and by rendering the partial judgment.

We agree. In their sworn petition, CBM and Wells relied upon the trial court’s

317.1-hour finding to establish the amount upon which they were confessing

judgment with respect to Camarillo’s overtime claim, and the trial court rendered

its partial judgment based upon that 317.1-hour calculation. Thus, because the

trial court erred by finding, pursuant to rule of civil procedure 166a(e), that as a

matter of law Camarillo worked exactly 317.1 hours of overtime from July 5,

2009, through July 5, 2012, it likewise erred by granting the sworn petition to

confess judgment and rendering the partial judgment, both of which were

grounded on that erroneous finding.




      9
       In granting the limited motion to reconsider, the trial court found that
Camarillo’s hourly wage at all times during the relevant period was $10.00 per
hour. Camarillo has not disputed that finding in the trial court or his briefing in
this court.

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                             IV. THE FINAL JUDGMENT

         Finally, Camarillo argues that the trial court erred by rendering its final

judgment. In the final judgment, the trial court disposed of Camarillo’s overtime

claim by expressly incorporating its order on the limited motion to reconsider and

its interlocutory partial judgment. Thus, because the trial court’s disposition of

Camarillo’s overtime claim was based on the trial court’s erroneous order

granting CBM’s and Wells’s limited motion to reconsider and its erroneous

interlocutory partial judgment, it necessarily follows that the trial court’s final

judgment is erroneous to the extent it rendered judgment on Camarillo’s overtime

claim.

         In sum, we sustain Camarillo’s issues to the extent he argues the trial court

erred by granting CBM’s and Wells’s limited motion to reconsider, by granting

their sworn petition to confess judgment, by rendering its partial judgment, and by

incorporating the partial judgment into the final judgment.           To the extent

Camarillo’s brief raises additional issues, we need not and do not address them.

See Tex. R. App. P. 47.1.

         CBM’s and Wells’s cross-appeal challenges the amount of attorney’s fees

and costs the trial court awarded to Camarillo. All of those fees and costs were

awarded to Camarillo as the prevailing party on his overtime claim. Because our

holdings necessitate that we reverse the trial court’s judgment as to Camarillo’s

overtime claim and remand for further proceedings on that claim, and because

the premise of the award of attorney’s fees and costs to Camarillo was the

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rendition of judgment in his favor on the overtime claim, we must also reverse the

award of attorney’s fees and costs. Therefore, the issues CBM and Wells raised

in their cross-appeal are moot.10

                                V. CONCLUSION

      Because neither party has challenged the disposition of Camarillo’s

retaliation claim, we affirm the trial court’s judgment as to that claim. Tex. R.

App. P. 43.2(a). Having concluded the trial court erred by rendering judgment on

Camarillo’s overtime claim, we reverse the trial court’s judgment as to that claim

and the award of attorney’s fees and costs to Camarillo and remand the overtime

claim for further proceedings.      Tex. R. App. P. 43.2(d).      And given our

disposition, we dismiss CBM’s and Wells’s cross-appeal as moot. Tex. R. App.

P. 43.2(f).




      10
         In the third issue of their cross-appeal, CBM and Wells requested that if
we remand this case, we limit the trial court’s determination of Camarillo’s claim
for attorney’s fees and costs to the evidence already presented on those issues
“without re-opening the case and evidence and without allowing an improper
second trial on the issue of attorneys’ fees and costs.” That request is premised
on our affirming the trial court’s disposition of Camarillo’s overtime claim and
reversing only its award of attorney’s fees and costs. But we have reversed the
trial court’s disposition of Camarillo’s overtime claim based on the trial court’s
erroneous granting of CBM’s and Well’s limited motion to reconsider and,
consequently, that claim remains pending. That disposition necessitates a
reversal of the trial court’s award of attorney’s fees and costs. This case is
remanded for a determination of Camarillo’s overtime claim as well as any award
of attorney’s fees and costs attributable to that claim. Given that posture, CBM’s
and Well’s request that we limit the scope of remand as to the trial court’s
attorney’s fees and costs award is moot.

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                                              /s/ Lee Gabriel

                                              LEE GABRIEL
                                              JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

SUDDERTH, C.J., filed a concurring opinion.

DELIVERED: June 28, 2018




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