                                 NO. 07-08-0291-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL D

                              SEPTEMBER 24, 2009
                        ______________________________

                   NICHOLAS FARHOOD, a/k/a NICK FARHOOD,
                  individually and d/b/a CAMEO CUSTOM HOMES,

                                                           Appellant

                                          v.

                                KEVIN CLEMENTS,

                                                    Appellee
                      _________________________________

           FROM THE 393rd DISTRICT COURT OF DENTON COUNTY;

             NO. 2007-60155-393; HON. VICKI ISAACKS, PRESIDING
                      _______________________________

                             Memorandum Opinion
                       _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Pending before the court is an appeal by Nicholas Farhood, individually and doing

business as Cameo Custom Homes, from a summary judgment awarding Kevin Clements

$251,757.98 against Farhood. The dispute between the two litigants arose from a

construction contract under which Farhood agreed to build a home for Clements. They

executed a contract specifying the construction price to be $750,000. According to

Clements, Farhood demanded other monies in excess of that sum to complete the work,
contrary to the terms of their agreement. Farhood purportedly demanded the additional

sums to cover deviations from the contract as requested by Clements. The dispute

resulted in Clements suing Farhood under various causes of action and seeking a partial

summary judgment. The trial court granted the aforementioned summary judgment and

severed the claims encompassed by the decree from those necessitating further

adjudication. We reverse the judgment and remand the cause.

        The motion for summary judgment filed with the court was rather global and vague.

Yet, it is clear that Clements sought to recover the difference between what he allegedly

thought the actual contract price was ($750,000) and the amount he actually paid. Yet, in

the attachments to his motion, he included a document entitled “Change Order

Confirmation Agreement.”1 Per that item, the signatories, which included Farhood and

Clements, alluded to “certain alterations and extras in the improvements contemplated by”

a mechanics lien contract involving the construction at issue.2 So too did the parties

represent, via the document, that “the extra work done and materials furnished as a result

of said alterations cost $90,000, which sum is a part of the Contract Price secured by said”

mechanics lien contract. Elsewhere in the same writing, the parties stated that the

“Contract Price stated in and secured by [the lien contract] has increased from $192,000

to $292,500 . . . .” Other attachments to the motion indicate that the mechanics lien



        1
           Clem ents prefaced his written tender of the attachm ents with the following: “Plaintiff attaches an
affidavit hereto and incorporates it by reference to establish facts not apparent from the record. Plaintiff also
attaches and incorporates docum entary evidence thereto as follows: . . . .” (Em phasis added). From this, we
conclude that he proffered each attachm ent as evidence for consideration by the trial court when determ ining
whether to grant sum m ary judgm ent.

        2
        The initial construction contract included a provision entitling Clem ents to change the hom e’s plans
and specifications via subsequent agreem ent specifying the changes and additional sum s to be paid.

                                                       2
contract for $292,500 constituted a lien second to a $900,000 first lien. Finally, the total

loan amount obtained by Clements apparently exceeded $1,192,000.

       Authority obligates us to construe the summary judgment evidence in a light most

favorable to the non-movant, i.e. Farhood. Johnson County Sheriff's Posse Inc. v.

Endsley, 926 S.W.2d 284, 285 (Tex.1996) (holding that summary judgment evidence must

be construed in favor of the non-movant). And, in so construing the evidence appended

by Clements to his motion, we hold that there exists a material issue of fact regarding the

price that he contractually agreed to pay for the construction of his house. Simply put, he

said it was only $750,000. Yet, other evidence reveals that he secured a loan for over

$1,192,000, and signed a “Change Order Confirmation Agreement” increasing his financial

obligation by an additional $292,500. Given the material issue of fact regarding the extent

of Clements’ obligation, he was not entitled, as a matter of law, to recover $251,757.98

from Farhood. See TEX . R. CIV. P. 166a(c) (permitting entry of a summary judgment when

the movant is entitled to it as a matter of law).

       Accordingly, we reverse the summary judgment and remand the cause for further

proceedings.



                                                    Brian Quinn
                                                    Chief Justice




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