                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00096-CV



BLACKSTOCK FEDERAL CONSTRUCTORS, LLC, Appellant

                           V.

          ULTIMATE GROUP, LLP, Appellee



        On Appeal from the 202nd District Court
                Bowie County, Texas
            Trial Court No. 16C1748-202




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                         MEMORANDUM OPINION
        In Bowie County, Texas, Ultimate Group, LLP, filed suit against Blackstock Federal

Constructors, LLC, for breach of contract, quantum meruit, and unjust enrichment seeking monies

allegedly owed for work performed in connection with “the Tex Americas Center project” in New

Boston, Texas. Blackstock entered a general and verified denial. The trial court granted Ultimate’s

motion for summary judgment, awarded $46,114.70 in damages, $2,275.00 in attorney fees, and

court costs of $573.30.

        On appeal, Blackstock contends that the trial court erred in granting summary judgment in

favor of Ultimate because (1) there is a genuine issue of material fact as to the existence of the

contract and (2) the trial court relied on improper summary judgment evidence in reaching its

decicion.

        We reverse the trial court’s judgment and remand the case for further proceedings because

a genuine issue of fact exists regarding the existence of a contract between Ultimate and

Blackstock.

I.      Procedural and Factual Background

        Ultimate’s petition alleged, in pertinent part, that it entered into a valid contract with

Blackstock to provide labor and services “in connection with the Tex Americas Center project

located at 228 Texas Avenue, New Boston, Texas 75570” and that Ultimate worked on the project

under the direction of Anthony & Gordon Construction Company (A&G).1 Ultimate alleged it



1
 Based on the same work Ultimate allegedly performed, the petition also raised causes of action for quantum meruit
and unjust enrichment, but Ultimate only moved for summary judgment on its breach of contract claim.

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fulfilled its obligations under the contract and that Blackstock breached the contract by failing to

pay the $46,114.70 “due and owing for labor and services [Ultimate] supplied on the project.” In

its verified answer, Blackstock made a general denial, specifically denied “the execution of any

instrument” forming the basis of Ultimate’s claims and asserted that any such instrument lacked

consideration. The affidavit of Stanley McChesney, the president of Blackstock, was attached to

the answer, and it stated that Blackstock “did not contract with Anthony and Gordon Construction

Company, Inc. or Ultimate Group, LLP to perform work at the TexAmericas Center project located

at 228 Texas Avenue, New Boston, Bowie County, Texas in 2015.”

            On April, 7, 2017, Ultimate moved for summary judgment on its breach of contract claim.

In support of its motion,2 Ultimate attached the affidavit of George Brophy,3 Ultimate’s managing

partner, which stated, in pertinent part:

            At the request of Blackstock Federal Constructors, LLC, Ultimate Group, LLP
            furnished labor on the TexAmericas Center project in New Boston, Bowie County,
            Texas during 2015. Ultimate Group fulfilled all of its contractual obligations to
            Blackstock.

            At this time, Blackstock, Federal Constructors, LLC owes Ultimate Group, LLP a
            total of $46,114.70 for labor provided in the Fall of 2015. All just payments, credits
            and offsets have been allowed.

Blackstock’s response denied that it contracted with Ultimate to perform the work described in the

petition and motion for summary judgment. In support of its response, Blackstock attached an

affidavit from McChesney, again stating that Blackstock “did not contract with Anthony & Gordon



2
    An affidavit of counsel proving attorney fees was also attached to the motion.
3
 The motion for summary judgment also relied upon requests for admission that had been deemed admitted; however,
the trial court later granted Blackstock’s motion to undeem the admissions.
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Construction Company, Inc. or Ultimate Group, LLP to perform work at the TexAmericas Center

project located at 228 Texas Avenue, New Boston, Bowie County, Texas in 2015,” as well as an

affidavit from Richard Justice, president of A&G, which stated that “A&G has never undertaken

or performed work on a construction project identified or known as the “Tex Americas Project”

located at “228 Texas Avenue, New Boston, Bowie County, Texas 75570.”

       On June 8, 2017, Ultimate filed a supplemental motion for summary judgment, arguing

that the evidence attached to its motions “conclusively establishe[d] the existence of a valid and

binding agreement between the parties[,] . . . conclusively establishe[d] that [Ultimate] performed

[its] obligations under the agreement [and] . . . establishe[d] that Blackstock breached the

agreement by failing to pay the amount due.” Again, an affidavit of Brophy was attached to the

motion, but it differed from his previous affidavit in that it contained the more generalized

statement that Ultimate “furnished labor on a construction project in New Boston, Bowie County,

Texas during 2015.” (Emphasis added). The affidavit also stated,

       Attached hereto are true and correct copies of the following invoices, which are
       kept by Ultimate Group, LLP in the normal course of its business:

       Invoice No.            Date                   Amount
       50742                  12/14/2015             $ 549.50
       50727                  12/7/2015              $ 4,181.00
       50714                  11/30/2015             $ 2,765.00
       50702                  11/23/2015             $ 7,345.00
       50691                  11/16/2015             $ 4,835.50
       50689                  11/9/2015              $ 3,414.50
       50671                  11/2/2015              $ 5,875.90
       50670                  10/26/2015             $ 4,794.00
       50660                  10/19/2015             $ 4,192.50
       50633                  10/12/2015             $ 8,161.80
       TOTAL[]                                       $ 46,114.70

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Copies of ten invoices listed were attached to Brophy’s affidavit. Blackstock filed a motion to

strike Ultimate’s summary judgment evidence, objecting to Brophy’s affidavit and the invoices

attached to it because: (1) Brophy’s affidavit was controverted by Blackstock’s response and

verified answer; (2) the affidavit contained “information that was not shown to be in Brophy’s

personal knowledge”; (3) the affidavit failed to meet the legal requirements for summary judgment

evidence; (4) the affidavit consisted of little more than legal and factual conclusions; and (5) the

invoices attached to the affidavit were not competent summary judgment evidence because they

and Brophy’s sponsoring affidavit failed to meet the standards of Rules 803 and 901 of the Texas

Rules of Evidence.

          Ultimate’s motion for summary judgment and Blackstock’s motion to strike were heard

together on June 29, 2017. After hearing the arguments of counsel, the trial court denied

Blackstock’s motion to strike and granted Ultimate’s motion for summary judgment, awarding

Ultimate $46,114.70 in damages, $2,275.00 in attorney fees, and court costs of $573.30.

Blackstock timely filed this appeal.

II.       Did Blackstock Raise a Genuine Issue of Material Fact?

          In its first point of error, Blackstock contends that the trial court erred in granting

Ultimate’s motion for summary judgment because a genuine issue of material fact exists regarding

the existence of the contract between Blackstock and Ultimate that forms the basis of Ultimate’s

claims.

          The trial court’s grant of a summary judgment is subject to de novo review by appellate

courts. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In making

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the required review, we deem as true all evidence which is favorable to the nonmovant, we indulge

every reasonable inference to be drawn from the evidence, and we resolve any doubts in the

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When

the trial court does not specify the basis for its ruling, we must affirm a summary judgment if any

of the grounds on which judgment is sought are meritorious. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013).

       To be entitled to summary judgment, the movant has the burden of proving that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). Once the movant produces evidence entitling it to summary judgment, the burden shifts to

the nonmovant to present evidence raising a genuine issue of material fact. Walker v. Harris, 924

S.W.2d 375, 377 (Tex. 1996). A defendant who conclusively negates a single essential element

of a cause of action or conclusively establishes an affirmative defense is entitled to summary

judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010).

       To be entitled to summary judgment, Ultimate had to show that it was entitled to judgment

as a matter of law and no genuine issue of material fact existed regarding each element of a breach

of contract claim: “(1) the existence of a valid contract, (2) the plaintiff’s performance or tendered

performance, (3) the defendant’s breach of the contract, and (4) damages as a result of the breach.”

Jespersen v. Sweetwater Ranch Apts., 390 S.W.3d 644, 658 (Tex. App.—Dallas 2012, no pet.).

Blackstock contends that it raised an issue of material fact regarding the existence of the contract

identified in Ultimate’s pleadings.

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        Here, Ultimate’s petition and motions for summary judgment uniformly assert that it

entered into a valid contract with Blackstock to provide Blackstock labor and services “in

connection with the Tex Americas Center project located at 228 Texas Avenue, New Boston,

Texas 75570” and that Ultimate worked on the project under the direction of A&G. That contract

is the basis of the summary judgment granted in Ultimate’s favor. However, McChesney’s

affidavit denies that Blackstock entered into such a contract, and Justice’s affidavit denies that

A&G performed any work on the project described in Ultimate’s pleadings. 4 Even though

Brophy’s second affidavit makes a more general assertion of a construction project in New Boston,

Texas, the pleadings were not amended to reflect the change in evidence. Therefore, viewing the

evidence in the light most favorable to Blackstock, the nonmovant, we find that Blackstock has

raised a genuine issue of material fact regarding the existence of the contract described in

Ultimate’s petition and motions for summary judgment. Accordingly, we sustain this point of

error. Because the ruling on this issue is dispositive, we need not address Blackstock’s remaining

point of error.




4
 Ultimate argues that during the hearing, Blackstock admitted that Ultimate furnished labor to Blackstock on the Red
River Army Depot DDRT construction project in New Boston, Texas. However, the unsworn statements of counsel
made during a summary judgment hearing are not evidence. See TEX. R. CIV. P. 166a(c) (no oral testimony shall be
received at a summary judgment hearing); see also In re Brown, 277 S.W.3d 474, 478 n.3 (Tex. App.—Houston [14th
Dist.] 2009, orig. proceeding) (arguments of counsel are not evidence); Daugherty v. Jacobs, 187 S.W.3d 607, 619
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (unsworn statements by counsel are not evidence); Tanksley v.
CitiCapital Commercial Corp., 145 S.W.3d 760, 764 (Tex. App.—Dallas 2004, pet. denied) (statements by counsel
at summary judgment hearing are not evidence).
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      We reverse the trial court’s judgment and remand this case for further proceedings.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:     January 24, 2018
Date Decided:       February 15, 2018




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