                                                                                            ACCEPTED
                                                                                        03-15-00034-CV
                                                                                                5080535
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  4/29/2015 12:08:27 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK

                                    NO. 03- 1s-00034-cv
                                                                       FILED IN
                                                                3rd COURT OF APPEALS
                               IN run Truno Counr op Apppals         AUSTIN, TEXAS
                                        AusttN, TBxRs           4/29/2015 12:08:27 PM
                                                                    JEFFREY D. KYLE
                                                                         Clerk




                      JUAN O. LOPEZ dlblaJ.L. CONSTRUCTION CO.,
                                       Appellant

                                              V


                      DAVE H. BUCHHOLZ and MARY A. BUCHHOLZ,
                                          Appellees



            On Appeal from the 274th Judicial District Court of Comal County, Texas
                                   Cause No. C2014-0259C



Bnrnr on Appnr,LANT
Appnr,r,¡.Nr RneuESTs      On¡l AncuvrnNr
         Richard C. McSwain
         Texas Bar No. 24002588
         Adam J. Richie
         Texas Bar No. 24064164
         Ryan T. Kinder
         Texas Bar No. 24065560
         Jamie Cohen
         Texas Bar No. 24054524
         Coars lRosn
         1020 Northeast Loop 410, Suite 800
         San Antonio, Texas 7 8209
         (2 1 0) 224-7 098 Telephone
         (21 0) 2 12- 5 69 8 F acsimi le
         ATTORNEYS FOR APPELLANT


485 I -8480-4643.v1
                         IDENTITY OF PARTIES AND COUNSEL

          In compliance with Rule 38.1(a), Appellant provides the following list of the

parties to the trial court judgment and order at issue, and the names and addresses

of trial and appellate counsel for the parties:

          Appellants:              Juan O. Lopez dlblaJ.L. Construction Co.



          Represented by:          Coars I Rosn
                                   Richard C. McSwain
                                   Adam J. Richie
                                   Ryan T. Kinder
                                   Jaime Cohen
                                   1020 Northeast Loop 410, Suite 800
                                   San Antonio, Texas 78209
                                   (2 I 0) 224 -7 09 8 Telephone
                                   (21 0) 212-5698 Facsimile



         Appellees:                Dave H. Buchholz
                                   Mary A. Buchholz


         Represented by:           VBTHaN Law Fnv, PC
                                   Charles M.R. Vethan
                                   Joseph L. Lanza
                                   J. Seth Grove
                                   8700 Crownhill Blvd, Suite 302
                                   San Antonio, Texas 78217
                                   Telephone: (210) 824-2220
                                   Facsimile: (210)   826-2223




                                             1




485 I -8480-4643.v1
                                   TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL                                                           i

INDEX OF AUTHORITIES                                                                     IV

APPENDIX                                                                                 X

STATEMENT OF TI{E CASE                                                                    I

DESIGNATION OF RECORD REFERENCES                                                          4

STATEMENT REGARDING ORAL ARGUMENT                                                         5


ISSUES PRESENTED                                                                          6

STATEMENT OF FACTS                                                                        7

SUMMARY               OF' THE   ARGTIMENT                                                72

ARGIJMENT AND AUTHORITIES                                                                14

    I            The Trial Court Erred In Sustaining the Buchholzes' Objections to
                 the Affidavits of Lopez and Preiss..............                  14
                A.     Standard of Review                                                T4

                B.     The affidavits, even   if   selÊserving, were competent summary
                       judgment evidence                                                 15

                C.     The Lopez affidavit was admissible as evidence that Dave H.
                       Buchholz made a $5,000 payment.                                   T7

                D.     The Lopez afftdavit is not conclusory                             20
                E.     The Preiss affidavit was not conclusory                           26
                F.     The trial court's error in the exclusion of the Lopez and Preiss
                       affidavits probably caused the rendition of an improper
                       summary judgment award.                                          28
   il            The Trial Court Erred in Granting Summary Judgment                      28
                A.     Standard of Review                                                29
                B.     The trial court erred in granting summary judgment on Lopez's
                       breach of contract claim because Lopez presented evidence of


                                                   l1


485 I -8480-4643.v1
                         an agreement with the Bucchholzes for the driveway, sidewalk,
                         and flagstone work raising genuine issues of material fact...........   3l
                C.       Lopez presented evidence showing that he provided valuable
                         services for the Buchholzes, that the Buchholzes accepted these
                         services without payment, such that the trial court erred in
                         granting summary judgment on Lopez's quantum meruit claim... 39
                D.       The evidence presents a genuine issue of fact as to whether
                         Lopez has a constitutional lien, and the trial court erred in
                         granting summary judgment on Lopez's lien foreclosure claim
                         and the Buchholzes' declaratory judgment claim                          43
                E.       Alternatively, even if this Court affirms the trial court's ruling
                         on the objections to Lopez's summary judgment evidence, the
                         summary judgment record still contains conflicting evidence
                         raising genuine issues of material fact as to Lopez's claims......... 45
   III.          The trial court erred in awarding attorneys' fees on this affirmative
                 claim for relief because the Buchholzes failed to meet their burden
                 of showing how their declaratory judgment claim involved an issue
                 not already at issue inLopez's original claims                        47
CONCLUSION                                                                                       49

PRAYER                                                                                           49

CERTIFICATE OF COMPLIANCE                                                                        51

CERTIFICATE OF SERVICE                                                                           52




                                                    111



485 I -8480-4643.v   I
                            INDEX OF AUTHORITIES

Cases

I00l McKínney Ltd. v. Credit Suisse First Boston   Mortgage Capital, 192 S.W.3d

   20 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)                    2l

Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd.,249 S.W.3d 380 n.32

   (Tex.2008).                                                              2t

Bastida v. Aznqran, 444 S.\M.3d 98 (Tex. App.-Dallas 2014, no pet.)         2I

Behr Southerland Construction, Inc. v. H.W. Wahlers,Izc., No. 04-00-00679-CY,

   2001WL 729292 (Tex. App.-San Antonio       June 29,2001)                 24

BHP Petroleum Co. v, Millard,800 S.W.2d 838 (Tex. 1990)                     47

Boswell v. Farm & Home Savings Ass'n,894 S.W.2d76l (Tex. App.-Fort Worth

    1994,    writ denied)                                                   22

Bradþrd Partners II, L.P. v. Føhning, 231 S.\M.3d 513 (Tex. App.-Dallas 2007,

   no pet.)                                                                  t4

Breitenfeld v. SAS Institute, Inc., 147 S.W.3d 672 (Tex. App.-Dallas 2004, no

   pet.)                                                                    48

Brooks v, Excellence Mortgage, Ltd., No. 04-13-00106-CY,2075 WL 1523067, at

   *8 (Tex. App.-San Antonio Apr. 1 ,2015)                                   I6

Campbell v. Nw. Nat'l Lífe Ins. Co., 573 S.W.2d 496 (Tex. 1978)              39


                                       1V


485 I -8480-4643.v I
Casso v. Brand,776 S.W.2d 551 (Tex. 1989)                                              24

Cessna       Aírcraft Co. v. Aircraft Network, L,L.C.,273 S.W.3d 455 (Tex. App.-

   Dallas 2006,pet. denied)                                                            32

City of Ingleside v. Stewart, 554 S.W.2d 939 (Tex. Civ. App.-Corpus Christi

    1977,    writ refd n.r.e.)                                                         39

Cíty of Keller v. Wilson,l68 S.W.3d 802 (Tex. 2005)                                    31


Coats v. Ruiz,198 S.W.3d 863 (Tex.          App.-Dallas 2006, no pet.)                  l8

Cockrell v. Republic Mortgage Ins. Co., 8I7 S.W.2d 106 (Tex. App.-Dallas

    1991, no      writ)                                                                 I9

CVN Group, Inc. v. Delgado,95 S.W.3d234 (Tex.2002)                                     44

Da-Col Paint WS. Co. v. Amerícan Indem. Co., 5 I 7 S.W. 2d 27 0 (Tex. 197 4) ..... 44

De La Morena v. Ignenieria E Maquinaria De Guadalupe, 5.A., 56 S.W.3d 652

   (Tex. App.-Waco 2001, no pet.)                                                   .... 16

Delí/oody v. Rippley, g5l S.W.2d 935 (Tex. App.-Fort Worth 1997, writ dism'd)

                                                                                    .... 16

Downer v. Aquamarine Operators, Inc.,70I S.W.2d 238 (Tex. 1985)                         15


Earle v. Ratlffi 998 S.W.2d 882 (Tex. 1999)                                            2l

Fieldtech Avionics        &      Instruments, Inc.   v.   ComponentControl.com, Inc., 262

   S.W.3d 813 (Tex.       App.-Fort Worth 2008, no pet                                  I6

FM Props. Operating Co. v. Cíty of Austin,22 S.W.3d 868 (Tex. 2000)                    3l
                                                V

485 I -8480-4643.v I
Gee v. Liberty Mut. Fire Ins. Co.,765 S.W.2d 394 (Tex. 1989)                    15


Gerstacker v. Blum Consulting Eners,   [nc.,884 S.W.2d 845 (Tex. App.-Dallas

    1994,    writ denied)                                                       37

Haase v. Glazner,62 S.W.3d 795 (Tex.2001)                                       36

HECI Exploration Co. v. Clajon Gas Co., 843 S.W.2d 622 (Tex. App.-Austin

    1992,    writ denied)                                                       47

Heldenfels Bros. v. City of Corpus Christi,832 S.V/.2d39 (Tex. 1992)            40

Heritage Lrf" r. Heritage Grp. Holding,751 S.\M.2d 229 (Tex.App.-Dallas 1988,

   writ denied)                                                                 47

Horan v. Frank,5l Tex. 401 (1879)                                               44

In re J.P.B., 180 S.\M.3d 570 (Tex. 2005)                                       t4

In re Kellogg Brown & Root, [nc.,766 S.W.3d 732 (Tex. 2005)                     39

Jackman v. Jackman, 533 S.W.2d 361 (Tex. Civ. App.-San Antonio 1975, no

   writ)                                                                        t9

Johnston v. Kruse,261 S.V/.3d 895 (Tex. App.-Dallas 2008, no pet.).      24,40

Kalmus v. Oliver,390 S.W.3d 586 (Tex. App.-Dallas2012, no pet.)                 37

Krishnan v. Lqw ffices of Preston Henrichson, P.C.,83 S.W.3d 295 (Tex.   App.-
   Corpus Christi 2002, pet. denied)                                            45

Landers v. State Farm Lloyds,257 S.W.3d 740 (Tex. App.-Houston         [st   dist.]

   2008, no pet.)                                                               48

                                        VI

485 I -8480-4643.v   I
Lennar Corp. v. Great Am. Ins. Co.,200 S.W.3d 651 (Tex. App.-Houston ll4th

   Dist.l 2006, no pet.)                                                                   31


McCraw v. Maris,828 S.IV.2d756 (Tex. 1992)                                                 15


McMahan v. Greenwood, 108 S.W.3d 467 (Tex. App.-Houston [14th Dist.] 2003,

   pet. denied)                                                                   ......   3   1




Melody Home AIfg. Co. v. Barnes,T4l S.W.2d 349 (Tex. 1987)                                 23


Miller     v. Riatq Cadilla   Co.,5l7 S.W.2d 773 (Tex. 1974)                               37

Moore v. K Mart Corp.,98l S.\M.2d 266 (Tex.App.-San Antonio 1998, pet

   denied)                                                                                 30

Niday v. Niday,643 S,W,zd919 (Tex. 1982) þer curiam)                               .....37

Owens v. Ousey,24l S.\M.3d 124 (Tex.        App.-Austin   2007, pet. denied)               47

PGP Gas Products, Inc. v. Reserve Equip., Inc., 667 S.W.2d 604 (Tex.             App.-
   Austin 1984, writ refd n.r.e.)                                                          32

Powell v. Stover, 165 S.W.3 d 322 (Tex. 2005)                                              15


Provident Ltfe & Accident Ins. Co. v. Knott, 128 S.V/.3   d2II   (Tex. 2003)........... 30

Renteria v. Trevino, Tg S.W.3d 240 (Tex. App.-Houston            [4th Dist.] 2002, no
   pet.)                                                                           32,38

Resídential Dynamics, LLC v. Loveless, 186 S.\M.3d I92 (Tex.        App.-Fort Worth

   2006, no pet.)                                                         27,33,40,41

Ryland Group v. Hood,924 S.W.zd 120 (Tex. 1996)                                            21


                                             v1l

485 I -8480-4643.v   I
Stør-Telegram, Inc. v. Doe,9l5 S.W.2d 471 (Tex. 1995)                                        48

Thomas v. Thomas, 902 S.W.2d 621 (Tex.                 App.-Austin   1995,   writ denied).47,48

Triland Investment Group. v. Tiseo Paving Co.,748 S.W.2d 282 (Tex.                      App.-
   Dallas 1988, no writ)                                                                     22

Vortt Exploration Co. v. Chevron USA, (nc.,787 S.W.2d 942 (Tex. 1990) ....39,40

Walker v. Harrís,924 S.\M.zd375 (Tex. 1996)                                                  3t

Young v. Ward,917 S.W.2d 506 (Tex.              App.-Waco      1996, no   writ)              37




Statutes

RBsrRrBvENr(SECoND)oFCoNrnacrs $ 131 cmt. c (1981)                                           36

Tnx. Bus. & Covttr¿. ConB $ 26.01(a)                                                         36

TBx. Bus. &              Cow. Corn   $ 26.01(bX6)                                            37

Tsx. CoNsr. art. XVI, $ 37                                                               43 44

TBx. Pnop. ConB $ 53.001                                                                     43




Other Authorities

BLRcr<'s Law DrcuoNeRy 308 (8th ed. 2004)                                                    2T




Rules
                                                    v111


485 I -8480-4643.v   I
TBx. R. App. P. 38.1(e)              5


Tpx. R. App. P.39.1(c)               5


Tpx. R. App. P. 39.1(d)              5


TBx. R. App. P.44.1(a)(1)           15


TBx. R. Ctv. P. 166a(c)          15,30

TBx. R. Cry. P. 166a(i)             30

Tex. R. Evn. 1002                   l8

TBx. R. Evn. 801(e)(2)(A)          27




                            IX

485 I -8480-4643.v   I
                                         APPENDIX


Tab

      1) Affidavit of Juan O.Lopez (C.R. 189-190).

     2) Invoices for unpaid work (C.R.   191).

     3) Affidavit of Scott Preiss (C.R. 192-193).

     4) Order Granting Defendants Dave H. Buchholz and Mary A. Buchholz's
          Motion for Summary Judgment dated December 72,2074 (C.R. 216-217).

     5) Final Judgment   dated January 14,2015 (C.R. 240-241).




                                           X

485 I -8480-4643.v   I
                                       STATEMENT OF THE CASE

          Nature of the Case: Appellant Juan O. Lopez dlbla J.L. Construction Co

("Lopez") brought suit against Appellees Dave H. Buchholz and Mary A.

Buchholz (the "Buchholzes") for payment in the amount of $27,584.80 for the

construction of a driveway, sidewalk, and flagstone walkway at the Buchholzes'

home. (C.R.            l-I2).   Lopez asserted claims for suit on a sworn account, breach of

oral contract, quantum meruit, and foreclosure of constitutional lien, and sought

the recovery of attorneys' fees. Id. The Buchholzes filed a counterclaim, seeking a

declaratory judgment that Lopez was not entitled                to a constitutional lien and
recovery of the attorneys' fees they incurred in prosecuting that claim. (C.R. 40*

41). The Buchholzes also filed third-party claims against the general contractor,

Scott Preiss (ooPreiss"), and another subcontractor for breach              of contract and
declaratory judgment, respectively. (C.R.           3941).

          Course        of   Proceedings and Disposition: On October 17, 2014, the

Buchholzes moved on traditional and no-evidence grounds for summary judgment

on all of Lopez's claims on the basis that (1) there was no agreement between the

parties, (2) the work Lopez performed was done pursuant to the Buchholzes'

contract with the Preiss, the general contractor, and not directly for the Buchholzes,

and (3) there was no evidence supporting one or more elements of each of Lopez's

claims. (C.R. 105-166). Lopez filed a Response on November 5, 2014, attaching

                                                   I

485 I -8480-4643.v I
his own affidavit and that of Preiss, showing that the work for which Lopez sought

payment was extra work outside of his duties as a subcontractor to Preiss and was

performed directly for the Buchholzes. (C.R. I78-I93). The Buchholzes objected

to portions of these affidavits on the basis that some of the statements were
conclusory and selÊserving. (C.R. 197-200). The Buchholzes specifically objected

that the Lopez affidavit made references to a check was not produced in response

to a request for production, and was not the "best evidence." (C.R. 197). OraI

hearing on the summary judgment motion was held on November 12, 2014. (2

R.R. 4:2-12:8).

          On December 12, 2014, the trial court sustained all of the Buchholzes'

objections to Lopez's summary judgment evidence and granted the Buchholzes'

motion for summary judgment. (APP. 4; C.R. 216-217). The trial court's order
                                             ooJuan
also entered a declaratory judgment that              O. Lopez is not entitled to   a

constitutional mechanics and materialman ,S           lien pursuant to the   Texas

Constitution, Article 16, Section 37" and awarded the Buchholzes attorneys' fees

in the amount of $20,853.84, plus costs and interest.Id.

          Lopez filed a motion for rehearing and reconsideration of the summary

judgment and the sustaining of the Buchholzes' objections to the affrdavits of

Lopez and Preiss. (C.R. 218-221). The trial court denied this motion on January

14, 2015. (C.R. 237). The trial court then severed all claims from and against

                                         2

485 I -8480-4643.v I
Lopez (C.R. 242143), and entered a final judgment against Lopez mirroring the

December 12,2014 summary judgment order. (APP. 5; C.R. 240-2.41).

          Lopez filed his notice of appeal of the order granting summary judgment and

sustaining the objections to summary judgment evidence on January 12, 2015.

(C.R. 229130).Lopez filed his amended notice of appeal on February 1I,2015.

(c.R. 2s0-2s1)




                                           J

485 I -8480-4643.v   I
                            DESIGNATION OF             ORD REF'ERENCES

          The record in this appeal consists of the clerk's record filed on March 30,

2015 and the reporter's record filed on February 27,2015. This appellate brief uses

the following conventions in citing the record and appendix:

                      Clerk's Record

                      C.R. [page]

                      Reporter's Record:

                      [volume] R.R. fpage]:[ine]

                      Appendix

                      APP. [tab number]




                                                   4

485 I -8480-4643.v1
                         STATEMENT REGARDING ORAL ARGUMENT

          Oral argument has been requested for the following reasons:

               1. Oral argument would give the Court a more complete understanding
                     of the facts presented on this appeal. See Tnx. R. App. P. 39.1(c).

              2. Oral argument would allow the Court to better        analyze the legal issues
                     presented. See TBx. R. App. P. 39.1(c).

              3. Oral argument would signifìcantly aid the Court in deciding this case.
                     See Tnx. R. App. P. 38.1(e), Tnx. R. App. P. 39.1(d).




                                                  5

485 l-8480-4643.v1
                                   ISSUES PRESENTED

l.   Did the trial court abuse its discretion in sustaining the Buchholzes' objections
     to Lopez's summary judgment evidence?

2. Did the trial court err in granting summary judgment on Lopez's suit on a
   sworn account, breach of contract, quantum meruit, and constitutional lien
     claims where Lopez presented affidavits and evidence that the Buchholzes
     requested him to construct a driveway, sidewalk and flagstone at their home,
     but failed to pay him for such work?

3. Alternatively, notwithstanding the fact the trial court sustained Buchholzes'
     objections to the affìdavits of Lopez and Preiss, did Lopez nevertheless present
     sufficient evidence in support of his claims such that the trial court erred in
     granting summary judgment?

4. Did the trial court improperly award the Buchholzes attorneys' fees for their
      declaratory judgment counterclaim when the declaratory judgment involved
      issues already raised by Lopez in his claims and Texas law precludes the
     recovery of attorneys' fees on such mirror-image counterclaims for declaratory
     judgment?




                                           6

485 l -8480-4643.v I
                                      STATEMENT OF FACTS

A.       The Buchholzes failed to pay Lopez for the drivewayo sidewalk and
         flagstone work that was performed directly for the Buchholzes and was
         not part of the original subcontracting work on the Buchhholzeso home.

         The Buchholzes hired Scott Preiss ("Preiss") to build the Buchholzes' home

at 840 Haven Point Loop, New Braunfels, Texas, and the parties entered into              a


contract for this construction on November 30, 2012 ("Original Contract"). (C.R.

35); (C.R. 108); (C.R. 127-131). Preiss in turn hired Lopez as a subcontractor on

the project to construct the slab for the Buchholzes' home. (C.R. 36); (C.R. 108);

(C.R. 132); (C.R. 138). Lopez invoiced Preiss for the slab work on February 16,

2013. (C.R. 132). Preiss then took a draw on the Buchholzes' construction loan to

pay Lopezfor the slab work. (C.R. 137-140). Preiss paid Lopez on March 1, 2013,

for this slab work. (C.R. 149).

         After the slab was completed, Lopez performed framing as well as stone and

stucco work on the Buchholzes' home, also as a subcontractor through Preiss.

(C.R. 136). Lopez invoiced Preiss for this work by May 28,2013.1d. Preiss paid

Lopez for this work with a check on April 15,2013, and two more checks on May

31, 20t3. (C.R.       15   1-156). The April 15 check noted that it was for framing labor.

(C.R. 151-152). The May 31 checks noted that they were for "rock/stucco." (C.R.

1s3-1s6).



                                                7

485 l-8480-4643.v I
          By July      l, 2013, approximately eighty-four     percent (84%) of the home was

completed. (C.R. 38).         It was after most of the home was completed         and months

after Lopez had finished and been paid for his work as a subcontractor of Preiss,

that Dave H. Buchholz directly requested Lopez to construct a drivewãV, sidewalk

and some flagstone work at the Buchholzes' home. (APP. 1 and 2; C.R. 189-191);

(APP. 3; C.R. 192-193). The Original Contract between the Buchholzes and Preiss

for the construction of the home did not include the installation of a driveway,

sidewalk, or flagstone work in the scope of work. (APP. 3; C.R. 192-193); (C.R.

127-131). The driveway, sidewalk and flagstone work were additional work the

Buchholzes hired Lopez directly             to perform. (APP. l-3; C.R. 189-193).        This

additional work was not requested through Preiss, and Preiss did not agree to pay

Lopez for this work. (APP. 3; C.R. 192-193). There was no agreement between

Preiss and Lopezfor this work. 1d.

          Lopez constructed the driveway and sidewalk and performed flagstone work

for the Buchholzes in accordance with the instructions received from Dave H.

Buchholz. (APP. 1; C.R. 190). Lopez invoiced the Buchholzes for the amounts

owed for this work. (APP.            I   and 2; C.R. 189-l9l). Lopez's invoices for this

additional work reflected that it was performed for "840 Haven Point Loop"-the

Buchholzes' home. (C.R. 162); (APP. 2; C.R. 191). The first invoice was undated

and the second invoice was dated October             7   , 2013. Id. The first invoice was for
                                                 8

485 I -8480-4643.v I
"Flagstone in the porch and steps, cover with flagstone bench2.07 x 9.00." Id. The

total amount of the first invoice was $11,388.00. Id.The second invoice was for

"Driveway 6178' x. 3.00" and "seventeen Steps (75.00 each), steel pipe, remove

steel pipe to adjacent land..."   Id. The total amount for the work identified in the

second invoice was $21,196.80.       Id. However, prior to   issuance   of the invoices,

Dave H. BuchholzpaidLopez $5,000 on August22,2013 as apartial payment for

this work. (APP. 1 and 2; C.R. 190-191). Accordingly, the second invoice reflects

a $5,000.00 credit conesponding to this payment by Mr. Buchholz, resulting in a

total balance due of $16,196.80. Id. The total amount charged for the flagstone and

driveway work on these two invoices was $27,584.80. Id. The invoices were

submitted to the Buchholzes for payment on or about October 7 , 2013. (APP.           1;


C.R. 190). The Buchholzes did not pay the amounts owed for the additional work

performed by Lopez.

         B. Procedural History

         Lopez sent   a demand letter to the Buchholzes on January 30, 2014,
                                                                  oodriveway
requesting immediate payment of the 527,584.80 still owed for the            and

porch flagstone" work performed for the Bucchholzes' home. (C.R. 163). After the

Buchholzes refused to pay the amount owed, Lopez filed suit alleging claims for

suit on a sworn account, breach of the parties' oral contract for the drivewây,



                                            9

485 I -8480-4643.v1
sidewalk and flagstone work, quantum meruit, and seeking to foreclose on his

constitutional lien. (C.R. 5-12).

          The Buchholzes answered and later brought third-party claims against Preiss

and another subcontractor.r (C.R. 3248). The Buchholzes also asserted a

counterclaim against Lopez, seeking             a   declaratory judgment that Lopez's

constitutional lien was void.1d.

          On October 17,2014, the Buchholzes filed a Traditional and No-Evidence

Motion for Summary Judgment on each of Lopez's claims. (C.R. 105-166). The

Buchholzes also filed       a motion for      summary judgment on their declaratory

judgment claim that Lopez's constitutional lien was void and sought attorneys'

fees. (C.R.123-124).

          Lopez filed his Response on November 5, 2074,2 attaching as evidence

affidavits from Lopez and Preiss and the invoice for the drivewày, sidewalk and

flagstone work. (C.R. 178-193). The day before the oral hearing, the Buchholzes

filed objections to some of the statements in the affidavits of Lopez and               Preiss

alleging that they were conclusory and self-serving, and for failure to produce the

S5,000 check from Dave H. Buchholz referenced inLopez's affidavit. (C.R. 197-




1
  The Buchholzes later non-suited the claims against the other subcontractor. (C.R. 194-195).
2
  The Response was filed three (3) days after undersigned counsel appeared as counsel for Lopez
following his prior counsel's withdrawal. (C.R. 17l-I77).
                                               10

485 I -8480-4643.v   I
200). Counsel argued the merits of the objections at the oral hearing before the trial

court on November 12,2014. (2 R.R. 4:2-12:8).

          The trial court signed an order on December 12, 2074, sustaining the

Buchholzes' objections to Lopez's summary judgment evidence and entering             a


general order granting the Buchholzes' summary judgment motion. (APP. 4; C.R.

216-217). The trial court did not specifl'the basis for the summary judgment. Id.

The trial court's order included a declaration that Lopez was not entitled to        a


constitutional lien and awarded the Buchholzes attorneys' fees in the amount of

$20,853.84, plus interest.   Id




                                          11

485 I -8480-4643.v1
                              SUMMARY OF THE ARGUMENT

          Lopez presented the trial court with affidavits by himself and Preiss

supporting his claims           by showing the existence of an agreement with        the

Buchholzes for the driveway, sidewalk, and flagstone work that Lopez performed

on the Buchholzes' home and for which he has not been paid. These affidavits,

along with Lopez's invoices for the work and the remainder of the summary

judgment record, present a genuine issue of material fact as to whether an express

or implied            agreement existed between Lopez and the Buchholzes such that

summary judgment could not be granted as to Lopez's breach of contract, quantum

meruit, and/or constitutional lien claims. However, the trial court erroneously

sustained the Buchholzes' objections to Lopez's and Preiss' affidavits, excluding

much of their testimony from the summary judgment record. This error led to

rendition of an improper summary judgment. The trial court's error in excluding

this evidence and in granting summary judgment should therefore be reversed.

         Alternatively, the trial court erred in granting summary judgment despite

sustaining the Buchholzes' objections        to the Lopez and Preiss affidavits.   The

statements of Lopezthat were not objected to, Lopez's invoices, and the evidence

presented by the Buchholzes, create        a fact issue on their own as to whether   an

implied agreement existed between the parties that would support Lopez's

quantum meruit claim

                                             t2
485 I -8480-4643.v1
          Finally, regardless of any other issue on appeal, the trial court's award of

attorneys' fees to the Buchholzes on their declaratory judgment claim must be

reversed. This counterclaim       for a   declaratory judgment   is a mirror-image of
Lopez's constitutional lien claim, and the Buchholzes cannot recover their

attorneys' fees for such a claim as a matter of law.




                                            l3
485 I -8480-4643.v1
                                                  AND AUTH RITIES

I.       The Trial Court Erred In Sustaining the Buchholzes' Objections to the
         Affidavits of Lopez and Preiss.

         The Buchholzes objected to certain statements contained in the Lopez and

Preiss affidavits, arguing that they were selÊserving and conclusory and made

reference        to      documents   not produced during discovery. Contrary to            the

Buchholzes' objections, however, each of the statements constituted competent

summary judgment evidence. The                 trial court therefore abused its discretion by

sustaining all of the Buchholzes' objections and excluding the affidavit testimony

proffered by Lopez and Preiss. As is further explained in Section              II   below, the

testimony was sufficient to raise a fact issue on each element of Lopez's claims

and thus, its exclusion resulted in the improper rendition of summary judgment in

favor of the Buchholzes.

         A. Standard of Review

         A trial court's decision to admit or exclude evidence is reviewed under an

abuse     of discretion standard. In re J.P.B., 180 S.W.3d 570,575 (Tex. 2005). A

decision sustaining objections            to   summary judgment evidence         is   similarly

reviewed for an abuse of discretion. Bradþrd Partners II, L.P. v, Fahning, 237

S.\M.3d 513,521 (Tex. App.-Dallas 2007, no pet.). The test for an abuse of

discretion is whether the trial court acted without reference to any guiding rules


                                                  l4
485 l -8480-4643.v   I
and principles. Downer v. Aquamarine Operators,          Inc.,70l S.W.2d 238,24142

(Tex. 1985). A trial court abuses its discretion if it fails to analyze or apply the law

correctly. Powell v, Stover, 165 S.W.3 d 322,324 (Tex. 2005). To obtain reversal        of

a   judgment based on effor in the admission or exclusion of evidence, Lopez must

show the trial court's error probably caused the rendition of an improper judgment.

TBx. R. App. P.44.1(a)(1); McCraw v. Møris,828 S.W.2d756,758 (Tex.1992);

Gee v. Liberty Mut. Fire Ins. Co.,765 S.W.2d 394,396 (Tex. 1989).

          B. The affidavits, even     if   self-servingo were competent summary
             judgment evidence.

          The Buchholzes objected to the Lopez and Preiss affidavits as "self-serving"

because       the affìdavits were made by 'ointerested witnesses." (C.R.         198-200).

Pursuant       to Rule 166a(c) of the Texas Rules of Civil Procedure, the authority

relied upon by the Buchholzes         in   support   of their objections, "[a]   summary

judgment may be based on uncontroverted testimonial evidence of an interested

witness...if the evidence is clear, positive and direct, otherwise credible and free

from contradictions and inconsistencies, and could have been                       readily

controverted." TBx.       R. Ctv. P. 166a(c). As the Buchholzes correctly noted,
testimony that does not meet these requirements cannot support              a    summary

judgment. (C.R. 198). However, the testimony of Lopez and Preiss was not

offered to supporl a motion for summary judgment and thus, the propriety of the


                                             15

485 l -8480-4643.v I
Lopez and Preiss affidavits was not subject to the requirements of Rule 166a(c).

De La Morena v. Ignenieria E Maquinaria De Guadølupe, 5.A., 56 S.W '3d 652,

658 (Tex. App.-Waco 2001, no pet.) (holding that Rule 166a(c) refers to the

evidence on which a summary judgment "may be based" and does not apply to a

non-movant's affidavit); Brooks v. Excellence Mortgage, Ltd., No. 04-13-00106-

cv,2075        wL        1523067, at *8 (Tex.   App.-San Antonio Apr. 1 ,2015) (stating that

affidavits made by self-interested non-movant witnesses need not meet the

requirements of Rule 166a(c)).

         According to established Texas law, "while testimony from an interested

witness cannot serve as a basis for granting summary judgment..., it is enough to

create afactissue that justifies denying summary judgment." Fieldtech Avionícs &

Instruments, Inc.           v. ComponentControl.com, Inc., 262 S.\M.3d 813, 827 (Tex'

App.-Fort Worth 2008, no pet.); see also Dewoody v. Rippley, g5I                S.\M.2d 935,

945-46 (Tex. App.-Fort Worth 7997, writ dism'd) ("Although insufficient to

establish a right to judgment as            a matter of law, testimony from an interested

witness submitted as controverting evidence by a non-movant may raise a facl

issue precluding Summary judgment."). Where, as here, Lopez'osought only to

raise a fact issue and defeat summary judgment, rather than negate a fact' issue and

obtain summary judgment," the Lopez and Preiss affidavits were competent

summary judgment evidence. Fieldtech,262 S.\M.3d at 827. Accordingly, the trial

                                                    16

485 I -8480-4643.v   I
court abused its discretion by sustaining the Buchholzes' "selÊserving" objections

and excluding the statements made by Lopez and Preiss from evidence on this

basis

        C. The Lopez affidavit was admissible        as evidence that l)ave H.
           Buchholz made a $50000 PaYment.

        Paragraphs   5 and 6 of the Lopez affidavit stated that Dave H. Buchholz

made a pafüa| payment of $5,000.00 for certain construction work and that the

payment "was paid directly by Dave H. Buchholz on August 22,2013, underhis

personal bank account." (APP. 1; C.R. 189-190). The Buchholzes objected to

these statements pursuant to Rule 193.6    of the Texas Rules of Civil   Procedure,

which provides that when a party fails to respond or supplement his response to   a


discovery request, the trial court may exclude any evidence that he was under a

duty to provide. TBx. R. Cry. P. 193.6(a). The Buccholzes argued that Lopez's

failure to produce     a $5,000.00 check in    response to   a previous request for

production of "[a]ll documents reflecting payments from Defendant to Plaintiff,"

precluded him from introducing into evidence any testimony related to such check.

(c.R. 1e7-1e8).

         The Buchholzes mischaracterizedthe statements in the Lopez afflrdavit. The

statements referred   to a $5,000 payment and not a 55,000 check. (APP. 1; C.R.

139-190). Lopez timely produced an invoice for the construction work at issue,


                                          T7

485 l-8480-4643.v1
which showed a $5,000 line item deduction from the total amount charged. (APP.

2; C.R. 191). The invoice-a document reflecting a $5,000 payment from Dave H.

Buchholz to Lopez-was responsive to the referenced request for production, and

the statements in the Lopez affidavit were offered as evidence of that $5,000

payment. (APP. 1 and 2; C.R. 189-191). The purported failure to produce a $5,000

check in response to discovery was irrelevant because Lopez did not seek to

introduce evidence of a $5,000 check. Under these circumstances, Rule 193.6,

which concerns only the admissibility          of evidence that was not previously
identified, simply does not apply. The trial court therefore abused its discretion in

sustaining the Buchholzes' Rule 193.6 objection and strikingLopez's testimony

pertaining to the $5,000 payment.

         Although couched as an objection under Texas Rule of Civil Procedure

193.6, the Buchholzes essentially complained that any testimony concerning the

$5,000 payment would violate the best evidence rule because the $5,000 check was

the best evidence of such payment. Under the best evidence rule, the original

writing is required to prove the contents of a document. TBx. R. Evn. 1002.

However, the rule does not apply where a parly is not attempting to prove the

contents of a document, but seeks only to establish the existence of a document.

Coats v. Ruiz, 198 S.W.3d 863, 875 (Tex.        App.-Dallas 2006, no pet.) (affidavit

stating that adjuster wrote letters to inform insureds that he would be handling their

                                          18

485 I -8480-4643.v I
claims did not violate best evidence rule because            it   showed that adjuster

communicated with insureds and was not offered to prove the letters' contents).

         Further, Texas courts have consistently held that "[e]vidence to the effect

that a payment has been made is admissible without introduction of the check

given in payment." Coclcrell v. Republic Mortgage Ins. Co.,817 S.W.2d 106,          II2
(Tex. App.-Dallas 1991, no writ) (citing Jackman v. Jaclcrnan,533 S.W.2d 361,

362 (Tex. Civ.       App.-San Antonio 1975, no writ)). In Jaclvnen,    a suit seeking an

upward modification of child support payments, the plaintifÊmother testified as to

the monthly expenses of "keeping" each of her four children. Jackman,53 S.W.2d

at 362. The defendant-father objected thaf her testimony should have been
excluded under the best evidence rule, arguing that the bills and cancelled checks

concerning such expenses were the best evidence of the amounts incurred for the

upkeep of the children.      Id. The court rejected his contention, explaining that the

best evidence rule did not apply since the mother's testimony was not offered to

prove the contents of the bills and checks referenced therein. Id. Because the

mother o.was a participant in all of the transactions to which her testimony related,

and her testimony was not based on records or memoranda prepared by another,"

the Court held that her testimony was admissible evidence of the payments made

on behalf of her children.    Id


                                            t9
485 l-8480-4643.v1
         Consistent with the foregoing case law, Lopez's statement that Dave H.

Buchholz paid $5,000 directly from his personal bank account should have been

admitted. Lopez was the recipient of the payment and his testimony was offered

solely as evidence that the payment came directly from Dave H. Buchholz, not to

prove the contents of the check constituting such payment. For this reason, too, the

trial court's exclusion of all      references   to the 55,000 payment in the Lopez

Affidavit was an abuse of discretion.

         D. The Lopez affidavit is not conclusory.

         The Buchholzes objected that the following statements in the Lopez affidavit

were conclusory, complaining that they lacked factual support,           represented

Lopez's "subjective belief," were not easily controverted by the Buchholzes, or

constitute d a "legal conclusion"   :




         Paragraoh 4:       The work for which J.L. Construction Co. seeks payment
                            was performed in a good and workmanlike manner at the
                            direct request of Dave H. Buchholz.

         Paragraph    5:    Dave H. Buchholz approved the work.

         ParagraphT         The work was performed          in
                                                             accordance with the
                            instruction given by Dave H. Buchholz to me fl-opezf on
                            behalf of J.L. Construction Co.

         Paragraph    8     The prices charged were the reasonable and necessary
                            value of the work performed.




                                            20

485 l -8480-4643.v1
(C.R. 193-199); (APP. 1; C.R. 189-190). Contrary to the Buchholzes' objections,

these statements are not conclusory.

         A    conclusory statement    is one o'expressing a factual inference   without

stating the underlying facts on which the inference is based." Arkomq Basin

Exploration Co. v. FMF Assocs. 1990-A, Ltd.,249 S.W.3d 380, 389 n. 32 (Tex.

2003) (citing BLACr's Law DlcuoNaRy 308 (8th ed. 200Ð);           I00I McKinney Ltd.

v. Credit      Suisse    First Boston Mortg. Capital, 192 S.W.3d 20, 27 (Tex. App.-

Houston [14th Dist.] 2005, pet. denied); Earle v. Ratlffi 998 S.W.2d 882, 890

(Tex. 1999) (a witness's affidavit is conclusory if it fails to explain the basis of the

witness' statements to link his conclusions to the facts). Conclusory statements in

affidavits are not sufficient to raise      a fact issue so as to preclude summary
judgment because they are             not credible or   susceptible   to   being readily

controverted. Ryland Group v. Hood,924 S.W.zd 120,122 (Tex. 1996). However,

logical conclusions based on stated underlying facts are proper. Bastida              v.


Aznaran,444 S.W.3d 98, 105 (Tex. App.-DaIlas 2014, no pet.) (distinguishing

between facts and conclusions).

         Lopezaverred that the statements in his affidavit were based on the personal

knowledge he obtained in his capacity as the sole proprietor of J.L. Construction

Co., a role which required him to perform all of the company's administrative and

operations activities. (APP. 1; C.R. 189). Based on this personal knowledge,Lopez

                                             2I

485 l -8480-4643.v   I
attested that the work      for which he sought payment from the Buchholzes was

performed at the direct request of Dave H. Buchholz,       in accordance with the

instructions given       to him by Dave H. Buchholz, and    approved     by Dave H.

Buchholz. Id. These statements were neither conclusions nor subjective opinions,

as the Buchholzes asserted. They were direct and unequivocal statements       of fact

founded upon Lopez's personal knowledge          of the work and his personal
interactions with Dave H. Buchholz. See Boswell v. Farm & Home Savings Ass'n,

894 S.W.2d 761,768 (Tex. App.-Fort Worth 1994, writ denied)              ("4 person's

position or job responsibilities can peculiarly qualiff him to have personal

knowledge concerning each of the facts in the supporting affidavit.").

         The Dallas Court of Appeals considered analogous statements made by a

paving company's project administrator in a summary judgment affidavit. Tríland

Investment Group. v. Tiseo Paving Co.,748 S.W.2d 282,284 (Tex. App.-Dallas

1988, no writ). The affidavit in that case described the occurrences leading to the

litigation, stating that the defendant-customer entered into a contract for paving

services, the work was completed, and5297,717.60 became due but was unpaid.

Id. The Court held that the statements were "neither     conclusions, nor unilateral

subjective opinions," but rather "constitute a factual account of events which are

proper summary judgment proof ." Id.



                                          22

485 l -8480-4643.v   I
         Like the statements made by the project administrator in Triland,      the

statements made by Lopez also constitute a factual account of events to which he

was a party and, thus, are competent summary judgment evidence. Contrary to the

Buchholzes' unsupported argument, the fact that Lopez did not also testifu as to

the time, method, and manner of Dave H. Buchholz's request, the substance of his

instructions, or the form of his ooapproval" did not make the factual statements

contained in his affidavit conclusory and was immaterial to the admissibility of

such statements. (C.R. 199)

         Lopez's statement that the work was done in a good and workmanlike

manner also was not conclusory. The Texas Supreme Court has defined "good and

workmanlike as that quality of work performed by one who has the knowledge,

training,      or experience   necessary   for the successful practice of a trade   or

occupation and performed in a manner generally considered proficient by those

capable of judging such work." Melody Home Mfg. Co. v. Barnes, 741 S.W.2d

349,354-55 (Tex. 1987). As the sole proprietor of his construction company, and

the person charged with performing all of the company's administrative and

operations activities, Lopez was capable of judging whether the work at issue was

generally proficient and as such, his statement that it was performed in a "good and

workmanlike manner" is a fact, not merely a conclusion. See Behr Southerland

Construction, Inc. v. H.W. Wahlers, Inc., No. 04-00-00679-CV, 2001 WL 729292,

                                             23

485 I -8480-4643.v1
at *2 (Tex. App.-San Antonio June 29, 2001) (holding                   plaintiff-general

contractor's assertion that defendant-subcontractor did not complete the work in a

good or workmanlike way to be a fact rather than a conclusion).

          Similarly,Lopez's statement that the prices charged were representative of
                                                                                  o'legal
the reasonable and necessary value of the work performed was not a

conclusion," as alleged by Appellees. Lay testimony like that proffered by Lopez

                                  ooreasonable
is   admissible evidence     of                  value" and was, therefore, improperly

excluded by the trial court. See Johnston v. Kruse,26l S.\M.3d 895,902 (Tex.

App.-Dallas 2008, no pet.) (recognizing that the measure of damages for                 a


quantum meruit claim is the reasonable value of the work performed, which may

be established through lay testimony)

          Furthermore,   all of the complained-of statements in the Lopez affidavit
could have been readily controverted by the Buchholzes, particularly by Dave H.

Buchholz. As recognized by the Texas Supreme Court, the phrase'o ocould have

been readily controverted' does not simply mean that the movant's summary

judgment proof could have been easily and conveniently rebutted," but rather "that

[the] testimony at issue is of a nature which can be effectively countered by

opposing evidence." Casso v. Brand,776 S.W.2d 551, 558 (Tex. 1989)

         Here, the Buchholzes specifically objected         to the statement that Mr.
Buchholz'oapproved the work" on the grounds that it "is not easily controverted,"

                                             24

485 I -8480-4643.v   I
but failed to show that such statement cannot be effectively countered by opposing

evidence. Indeed, this factual statement and all of the complained-of statements are

of a nature which can be effectively                   countered   by opposing   evidence. The

Buchholzes               in fact attempted to controvert Lopez's statement that Lopez
performed the work at the direct request                   of Dave H. Buchholz by offering
opposing testimony from Dave H. Buchholzthatthe alleged contract governing the

work was with Preiss. They admitted, moreover , that the statements in Paragraph                7


concerning Dave               H. Buchholz's instructions were controverted,          effectively

establishing that those statements were factual, not conclusory. (C.R. 199)

Likewise, the statements related to the good and workmanlike manner of the work

and the reasonable value charged for the same could have been rebutted with

contrary evidence that the work was deficient or of improper charges, further

negating the conclusory nature of such statements.

         Because Paragraph s 4, 5,       7   ,   and 8 of the Lopez affidavit were statements   of

facts that were uniquely within Lopez's personal knowledge and of a nature that

could have been readily controverted by the Buchholzes, they were not conclusory.

Accordingly, the trial court abused its discretion by sustaining the Buchholzes'

objections       to each of      these paragraphs and the improper exclusion        of Lopez's

statements led, in turn, to an improper award of summary judgment on his claims.



                                                      25

485 I -8480-4643.v   I
         E. The Preiss affidavit was not conclusory.

         The Buchholzes objected to the following paragraphs of the Preiss affidavit

as improper legal and/or factual conclusions:

         Paragraph 4       The written agreement I had with Dave   H. Buchholz and
                           Mary A. Buchholz did not include the installation of    a
                           new drivewây, sidewalk and flagstone.

         Paragraph 5:      The installation    of a new driveway, sidewalk      and
                           flagstone at the Buchholzes' residence was extra work
                           performed by Juan O. Lopez (the "Extra Work").

         Paragraph 6       The Extra Work performed by Juan O. Lopez was not
                           performed subject to the written agreement between me
                            and the Buchholzes.

         Paragraph 7       The Extra Work performed by Juan O. Lopez was not
                           performed under aîy agreement between me and Juan O.
                           Lopez.

         Paragraph 8        I had no involvement in directing or agreeing to pay for
                            the Extra Work performed by Juan O. Lopez.

         Paragraoh 9:       The Buchholzes directed Juan O. Lopez to perform the
                            Extra Work.

(C.R. 199-200); (APP. 3; C.R. t92-193).

         The Buchholzes' objections to the Preiss affidavit also were unfounded and

improperly sustained. As a party to a written agreement with the Buchholzes for

the construction of the Buchholzes' home, Preiss had personal knowledge of the

work covered by that agreement. Preiss also had personal knowledge of the slab,

framing, stone, and stucco work that he hired and paid Lopez to perform on the

                                          26

485 I -8480-4643.v   I
Buchholzes' home. By virtue of such knowledge, Preiss' statements in Paragraphs

4 through 7 were statements of fact concerning the scope of the written agreement

to which he was a party and the specific tasks that he assigned to Lopez under that

agreement.           As such, these statements provided the basic underlying facts    to

support Preiss' conclusion that the installation          of the driveway, sidewalk, and

flagstone were not included in his written agreement with the Buchholzes or any

agreement that he had with Lopez. See Residential          þnamics, LLC v. Loveless, 186

S.W.3d 192, 198 (Tex. App.-Fort Worth 2006, no pet.) (holding that statements

listing the basic terms of agreement provided the basic facts to support conclusions

c   oncernin g thal agreement).

         There also was nothing conclusory about Paragraph 8 or Paragraph 9 of the

affidavit, which the trial court nevertheless excluded from evidence. Preiss'

testimony that he did not direct or agree to pay Lopez for the installation of the

additional items, and that the Buchholzes directed Lopezto perform such work was

specific      to         facts within his personal knowledge. Preiss' statement that the

Buchholzes directedLopez to perform the work for which he sought payment also

was not oohearsay," as the Buchholzes contended, because Preiss was not testifuing

to anything he heard the Buchholzes say fo Lopez. Even if hearsay, this statement

was nevertheless admissible because it was offered against the Buchholzes and

made by the Buchholzes. Tsx. R. Evrn. 801(e)(2)(A) (u statement is not hearsay         if
                                                 27

485 I -8480-4643.v   I
it is offered            against an opposing party and was made by the party). Accordingly,

the trial court funher abused its discretion in sustaining the Buccholzes' conclusory

and hearsay objections to Paragraphs 8 and 9 of Preiss' affidavit.

          F. The trial courtos error in the exclusion of the Lopez and Preiss
             affidavits probably caused the rendition of an improper summary
              judgment award.

         For each of the separate and independent reasons set forth above, the trial

court abused its discretion by sustaining all of the Buchholzes' objections to the

Lopez and Preiss affidavits. The statements contained therein were competent

summary judgment evidence. Had they been admitted, such statements would

have been sufficient to raise a fact issue on each element of Lopez's claims and

thus, to require denial of the Buccholzes' motion for summary judgment. As such,

the trial court's enoneous exclusion of Lopez's and Preiss' affidavit testimony

probably caused the rendition of an improper summary judgment award in favor of

the Buccholzes. Lopez is therefore entitled to a reversal of such judgment.

U.       The Trial Court Erred in Granting Summary Judgment

         The trial court's December 12, 2014 order granted the Buchholzs'

Traditional and No-Evidence Summary Judgment, dismissed all of Lopez's claims,

and entered a declarutory judgment and award of attorneys' fees in favor of the

Buchholzes. (C.R. 216-217). As shown above, the trial court improperly excluded

portions of the affidavits of Lopez and Preiss from the summary judgment record.

                                                   28

485 I -8480-4643.v   I
As such, the trial court erred in granting summary judgment under either                  the


traditional          or   no-evidence standard because Lopez presented admissible

evidence-through the affidavits of himself and Preiss and the invoices for the

work performed-that presented more than a scintilla of evidence in support of

each    of his claims and created genuine issues of fact to be resolved aI triaI.

Alternatively, even          if   the trial court's ruling on the objections to the summary

judgment evidence is affirmed by this Court, the trial court still erred in granting

summary judgment. The Buchholzes only objected                 to certain statements in   the

affidavits. The remaining statements and other evidence in the summary judgment

record create genuine issues of material fact as to each of Lopez's claims. Finally,

regardless of this Court's determination onLopez's claims, the trial court erred in

awarding the Buchholzes attorneys' fees because the Buchholzes failed to carry

their burden that they were entitled to such relief on their affirmative claim for

declaratory judgment.

         A. Standard of Review

         Appellate courts review            a trtal court's decision to grant a motion    for

summary judgment de               novo. Travelers Ins. Co. v, Joachim, 315 S.W.3d 860,862

(Tex.2010).

         The Buchholzes were granted summary judgment on both no-evidence and

traditional grounds. As such, the Court must first review the trial court's summary

                                                   29

485 I -8480-4643.v   I
judgment under the no-evidence standard                      of   Texas Rule   of Civil    Procedure

166a(i). Ford Motor Co. v. Rídgway, 135 S.W.3d 598, 600 (Tex. 2004). In

reviewing a trial court's order granting a no-evidence summary judgment, this

Court msut consider the evidence in the light most favorable to the respondent and

disregard all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003).                  A no-evidence       summary judgment is properly

granted only             if the respondent fails to bring forth more than a scintilla of probative

evidence to raise a genuine issue of material fact. Id.; see Tsx. R. Cry. P. 166a(i).

More than a scintilla of evidence exists when the evidence rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.

Moore v. K Mart Corp.,981 S.W.zd266,269 (Tex. App.-San Antonio 1998, pet.

denied). Less than a scintilla exists when the evidence is so weak as to do no more

than create a mere surmise or suspicion of afact. Id.

         Under a traditional motion, summary judgment must be affirmed if the

movant shows, as a matter of law, that no genuine issue of material fact exists as to

the non-movant's causes of action and that                 it is entitled to judgment   as a matter   of

law. Tex. R. Crv. P. l66a(c); Provident                 Lfe & Accident Ins. Co. v. Knott, 128
                                            'Where
S.W.3d 211,215 (Tex. 2003).                          the movant has conclusively established the

absence      of an issue of material fact on an element of the non-movant's claim for

relief, the non-movant must present evidence that raises some fact issue. Walker                      v.


                                                      30

485 I -8480-4643.v   I
Harrís,924 S.\M.2d375,377 (Tex. 1996). To determine if the non-movant raises          a


fact issue, the court must review the evidence in the light most favorable to the

non-movant, crediting favorable evidence        if reasonable   jurors could do so, and

disregarding contrary evidence unless reasonable jurors could not. City of Keller    v.


Wilson,168 S.W.3d 802, 827 (Tex.2005).

         Finally, when a trial court grants summary judgment without speciffing the

reasons, the appellate court may affirm the judgment on any theory that has merit.

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000);

Lennar Corp. v. Great Am. Ins. Co.,200 S.W.3d 651,661 (Tex. App.-Houston

[14th Dist.] 2006, no pet.); McMahan v. Greenwood,708 S.W.3d 467,477 (Tex.

App.-Houston [14th Dist.] 2003, pet. denied) (where defendant moved on

traditional and no-evidence grounds and order granting summary judgment did not

speciff grounds, both motions could be basis for affirming judgment on appeal).

         B. The trial court erred in granting summary judgment on Lopez's
            breach of contract claim because Lopez presented evidence of an
            agreement with the Bucchholzes for the drivewayo sidewalk, and
            flagstone work raising genuine issues of material fact.

         In support of their traditional motion, the Buchholzes argued that no contract

existed between the Buchholzes and Lopez. The Buchholzes also moved that there

was no evidence as to each element of Lopez's breach of contract claim. But the

affidavits of Lopez and Preiss, along with the evidence and admissions of the


                                           31

485 1 -8480-4643.v   I
Buchholzes, show that there are genuine issues of fact as to whether a contract

exists for the driveway, sidewalk and flagstone work.

                     i.   Issues of fact exist on whether there was an asreement between the
                          Buchholzes and Looez for the additional dri vewav^ sidewalk- and
                          flagstone work.

          In order to prove a breach of contract, a plaintiff must demonstrate: (1) the

existence of a valid contract; (2) performance or tendered performance by plaintiff;

(3) breach of contract by the defendant; and (4) damages sustained by the plaintiff

as a result of the breach. Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex.             App.-
Houston ll4th Dist.l 2002, no pet.).

          In this case, Lopez alleged he had an oral agreement with the Buchholzes for

the additional driveway, sidewalk and flagstone work. (C.R. 5-12). "In
determining               the   existence   of an oral contract, the court looks to      the

communications between the parties and to the acts and circumstances sulrounding

the communications." Cessna Aircraft Co. v. Aircraft l{etwork, L.L.C.,213 S.W.3d

455, 465 (Tex.             App.-Dallas 2006, pet. denied). The existence of an oral contract

may be proved by circumstantial evidence as well as by direct evidence. PGP Gas

Products, Inc. v. Reserve Equip., Inc., 667 S.W.2d 604,607 (Tex. App.-Austin

1984,     writ refd n.r.e.). An affidavit that lists the basic terms of an agreement,

states that      plaintiff performed its obligations, and states the amount of     expenses

that plaintiff incurred in performing, specifring at least what some of the expenses

                                                   32

485 I -8480-4643.v   I
were, is sufficient to raise               a fact issue as to whether the parties formed     an


agreement, whether the agreement was breached, and whether the plaintiff

sustained damages as a resulf. Residential Dynamics, LLC,186 S.\M.3d at 198.

         In this case, Lopez states in his affidavit that:

               a         he performed   work atthe Buchholzes' residence;

               o         the work was performed at the direct request of Dave H. Buchholz;

               a         the work was performed in accordance with the instructions given by
                         Dave H. Buchholz;

               O         the work was approved by Dave H. Buchholz;

               a         the prices charged were reasonable and necessary;

               o         invoices were submitted to Dave H. Buchholz for payment for the
                         work on or about October 7,2013; and

               o         that Dave H. Buchholz made a partial payment of $5,000 from his
                         personal bank account for the work, leaving a balance due of
                         $27,584.80.

(APP.1; C.R. 139-190). The invoices attached to the Lopez affidavit described the

work performed, which included "flag stone in the porch and steps" as well                   as


labor and materials for the "driveway." (APP. 2; C.R. 191). The invoices further

reference the address of the Buchholzes' residence-84O Haven Loop                     Point-

showing that this work was performed for the Buchholzes, Id. The Buchholzes

argue that no written contract exists between Lopez and the Buchholzes, but this is



                                                     JJ

485 I -8480-4643.v   I
irrelevant in this case because Lopez's affidavit raises a genuine dispute as to

whether the parties had an oral agreement for the additional work.

          The Buchholzes also argue that this additional work was within the scope         of

their contract with Preiss for the construction of the home, and that because Lopez

performed some work as a subcontractor under Preiss, all of Lopez's work on the

home must therefore have been performed as a subcontractor to this original

contract. But this is the entire factual dispute in this case-whether the Buchholzes

separately hired Lopez to construct the driveway, sidewalk and flagstone at their

home. The Buchholzes contend that they did not hire Lopez direcfly. However,

Lopez's affidavit states that he performed this work at the direct request of Dave

H. Buchholz, and Preiss' affidavit             states that   his Original Contract with the

Buchholzes did not include this work. (APP. 1-3; C.R. 189-193). Preiss' affidavit

further states that:

              a      the installation of the new driveway, sidewalk and flagstone at the
                     Buchholzes' home was extra work performed by Lopez;

              o      this extra work was not performed under any agreement          between
                     Preiss andLopez;

              a      Preiss had no involvement in directing or agreeing to pay for this extra
                     work; and

              o      the Buchholzes directed Lopez to perform this extra work




                                                 34

485 l-8480-4643.v1
(APP. 3; C.R. 192-193). This evidence conflicts with the Buchholzes' contention,

and therefore raises an issue for the factfinder.

         The Buchholzes also admitted in their pleadings that Lopez was hired to

pour the slab for the Buchholzes' home and to be the framer. (C.R. 36). They did

not allege that Lopezwas hired by Preiss to construct the driveway, sidewalk or

any flagstone work. None of the evidence submitted by the Buchholzes shows that

the drivew&y, sidewalk or flagstone work at issue was within the scope of their

Original Contract with Preiss. The Original Contract does not specifr this work.

(C.R. I27-I3l). Lopez's prior invoices to Preiss, the proofs of payment, and the

Draw Disclosure only show that Lopez performed and was paid for the slab and

framing work that the Buchholzes admit he was hired to perform. (C.R. 132); (C.R.

136-140); (C.R. 149-156). Evidence that Lopez performed some work on the

Buchholzes' home as a subcontractor of Preiss does not establish as a matter of law

that   all work Lopez performed on the property was as a subcontractor. This is
particularly true when Lopez's and Preiss' affidavits contradict this assertion by

the Buchholzes and therefore raise a genuine issue of fact as to the ultimate

question       in this lawsuit-whether   there was   a   separate contract between the

Buchholzes and Lopez for the driveway, sidewalk, and flagstone work at issue.

Accordingly, the trial court erred in granting summary judgment on this point.



                                           35

485 I -8480-4643.v1
                ii.     The statute ot        is inaoolicable.

         The Buchholzes mentioned in the introduction of their summary judgment

motion that Lopez's claim for oral contract violates the statute of frauds. (C.R.

105). The Buchholzes never argue this point in the body of the motion or present

any legal or evidentiary support to their statement, but summary judgment could

not have been granted on this ground either because the statute of frauds does not

bar enforcement of the oral contract between the parties

         The statute of frauds exists to prevent fraud and perjury in certain kinds of

transactions by requiring agreements to be              in writing and signed by the parties.

Haase v. Glazner,62 S.W.3d 795,799 (Tex. 2001); RrsrarEMENr (SncoNn) or

CoNrRRcrs g 131 cmt. c (1981). TexasBusiness andCommerce Code $ 26.01(a)

provides that:

                      A promise or agreement described in Subsection (b) to this section ts
                      not enforceable unless the promise or agreemenl, or a memorandum
                      of it, is
                              a.     In writing; and
                              b.     Signed by the person to be charged with the promise or
                                     agreement or by someone lawfully authorized to sign for
                                     him.

TBx. Bus.        & Covnr. Cors $ 26.01(a). Section 26.01(bX6)            provides that, to be

enforceable, promises or agreements o'which are not to be performed within one

year from the date                 of making the agreement" must be in writing. Id. at      $


26.01(bX6). When a promise or agreement, either by its terms or by the nature of

                                                   36

485 I -8480-4643.v1
the required acts, cannot be completed within one year, it falls within the statute      of

frauds and is not enforceable unless       it is in writing and signed by the person to be

charged. Id.; Niday v. Niday,643 S.W.2d 919,920 (Tex. 1982) (per curiam).             If the

agreement is capable of being performed within one year,          it is not precluded by the

statute of frauds. See Gerstacker v. Blum Consulting Eng'rs, [nc.,884 S.W.2d 845,

849 (Tex.      App.-DaIIas   1994,   writ denied).

         Courts use two points of reference in determining whether an agreement is

capable of being performed within one year:          (l)   the time of making the contract

and (2) the time when performance is to be completed. Young           v. I4/ard,9l7 S.W.2d

506, 508 (Tex. App.-Waco 7996, no writ) (to measure contract duration for

statute-of-frauds pu{poses, the oocourt simply compares the date of the agreement to

the date when the perfoffnance under the agreement is to be completed"); Kalmus

v. Oliver,390 S.W.3d 586, 589 (Tex. App.-Dallas 2012, no pet.) If there is a year

or more between those the two reference points, a writing is required to render the

agreement enforceable. Young, 917 S.W.2d at 508.            A contract thal could possibly

be performed within a year does not fall within the statute of frauds. Kalmus,390

S.W.3d at 590; Miller v. Riata Cadilla Co.,517 S.W.2d 773,775 (Tex. 1974).

         The oral agreement between Lopez and the Buchholzes was for                    the

performance of a defined scope of driveway, sidewalk and flagstone work. This

work was performable within a year because it actually was performed within one

                                               37

485 1-8480-4643.v1
year. The Original Contract for the construction              of the home was not even
executed until November 30, 2012, less than a year before Lopez invoiced the

work at issue. (C.R. 127-L31). Thus, the entire home was constructed within              a


year. Accordingly, the oral agreement between Lopez and the Buchholzes falls

outside the statute of frauds, and the summary judgment could not be granted on

this basis as a matter of law.

               iii.      More than a scintilla of evidence wâs nresented in sunoort of the
                         other elements ofLopez's breach of cqqtraqt!þix0.

          Lopez also presented sufficient evidence as to the other elements of his

breach of contract claim to satisff his burden under Rule 166a(i). Renteria, 79

S.W.3d at242. There is no dispute that the driveway, sidewalk, and flagstone work

was actually performed by Lopez, and Lopez's afftdavit, Preiss' affidavit, and the

attached invoices are evidence that           it was performed. (APP. 1-3; C.R. 189-193)

There is also no dispute that the Buchholzes have not paid for this work. Lopez's

affidavit and the attached invoices show that the Buchholzes paid $5,000 as partial

payment for this work, but that 527,584.80 is still owed. (APP. 1 and 2; C.R. 189-

191). Lopez's damages resulting from the Buchholzes' breach is the $27,584.80

unpaid amount. Id. Lopez presented the trial court with more than a scintilla of

evidence of each element of his breach of contract claim, and therefore summary

judgment on this claim could not have been granted under Rule 166a(i).


                                                 38

485 l -8480-4643.v   I
         C. Lopez presented evidence showing that he provided valuable services
            for the Buchholzes and the Buchholzes accepted these services
            without payment, such that the trial court erred in granting
            summary judgment on Lopezts quantum meruit claim.

         Quantum meruit is an equitable remedy that is intended to prevent unjust

enrichment when there is an implied agreement to pay for benefits received. In re

Kellogg Brown & Root, Inc., 166 S.\M.3d 732,740 (Tex. 2005). Quantum meruit

does not arise out    of a contract but is independent of it. Vortt Exploration Co. v

Chevron USA, Inc., 787 S.W.2d 942, 944 (Tex. 1990). Generally, a party may

recover under quantum meruit only when no express contract covering the services

or materials furnished exists. In re Kellogg Brown & Root, Inc., 166 S.W.3d at

740. This remedy "is based upon the promise implied by law to pay for beneficial

services rendered and knowingly accepted." Campbell v. Nw.        Nat'l Lifu Ins, Co.,

573 S.W.2d 496,498 (Tex. 1978). Recovery in quantum meruit is available when

nonpayment for the services rendered would "result in an unjust enrichment to the

party benefitted by the work." City of Ingleside v. Stewart, 554 S.W.2d 939,943

(Tex. Civ. App.-Corpus Christi 1977, writ refd n.r.e.).

         To recover under quantum meruit a claimant must prove that: (1) valuable

services were rendered or materials furnished; (2) for the person sought to be

charged; (3) which services and materials were accepted by the person sought to be

charged, used and enjoyed by him; (a) under such circumstances as reasonably


                                           39

485 I -8480-4643.v1
notified the person sought to be charged that the plaintiff in performing such

services was expecting to be paid by the person sought to be charged. Heldenfels

Bros. v. City of Corpus Christi,832 S.W.2d39,41 (Tex. 1992); Vortt Exploration

Co.,787 S.W.2d at 944.

         Affidavits similar to Lopez's have been held by other courts to constitute

more than a mere scintilla of evidence that the appellant rendered valuable services

so as to supporf      a   claim for quantum meruit. Johnston, 261 S.W.3d at 901;

Residential þnamics, 186 S.W.3d            aI    198-200.   In Johnston, the plaintiffs
affìdavit stated the hours of work that he put in and the "reasonable" pay rate he

charged for such work. Johnston,26l S.W.3d at 901. The affidavit further stated

that the defendant knew that the work was being performed for a parlicular entity

and consented to the plaintiff s work on such entity's behalf, but failed to pay the

plaintiff for this    sarne work.   Id. The court   construed the   plaintifls affidavit   as


providing "alayman's estimate" of the reasonable value of his services and found

that it was sufficient evidence that the plaintiff provided services for the particular

entity alleged. Id. Accordingly, the court held that the trial court erred in rendering

a no-evidence summary judgment on the plaintifPs claim for quantum meruit

against that particular entity. Id.

         Similarly, in Residential þnamics, the plaintiff s affidavit stated that (a)

plaintiff performed its obligations under agreement with the defendants, which
                                            40

485 l -8480-4643.v1
included putting a manufactured home on a lot owned by the defendants and

adding other improvements thereto, including a driveway and concrete work; (b)

the improvements were still on the defendants' property; and (c) plaintiff and the

defendants had agreed         to a specific payment   scheme   for the   improvements.

Residential       þnamics,   186 S.W.3d at 198-200. The court held that statements (a)

and (b) were sufficient to raise a fact issue as to whether                   valuable

services/materials were fumished by the plaintiff for the benefit of the defendants,

the person to be charged. Id. In addition, statement (b) raised a fact issue as to

whether the services/materials were accepted by the defendants, and whether the

defendants enjoyed the benefits       of the improved lots. Id. Further, statement (c)

"clearly raised       a fact issue" about whether the defendants should have been
reasonably notified that the plaintiff expected        to be paid by the defendants
following the completion of the improvements to thelot.Id.

         As in Johnston and Residentíal þnamics, Lopez's affidavit           presented

evidence as to each quantum meruit element. There is no dispute that the driveway,

sidewalk, and flagstone work was performed by Lopez or that it was for the benefit

of the Buchholzes and accepted by the Buchholzes. (APP. 1 and 2; C.R.189-191)

The driveway, sidewalk, and flagstone work is part of the Buchholzes' home

which they have used and enjoyed since it was completed in 2013



                                             4T

485 l -8480-4643.v1
          Lopez's affidavit also shows that the Buchholzes were reasonably notified

that they were to pay for the driveway, sidewalk, and flagstone work. (APP.          l;
C.R. 189-190). Lopez performed this work at the direct request and under the

instruction of Dave H. Buchholz. Id. The amounts charged for this work were

reasonable and necessary. 1d. Most importantly, Dave H. Buchholz made a partial

payment of $5,000.00 directly to Lopez on August 22,2013 for this work. Id. This

payment is reflected in the final invoice for this work as well. (APP. 2; C.R. 191).

The fact that the Buchholzes partially paid for the work is even greater evidence

than that presented in Residential of whether the Buchholzes were reasonably

notified of Lopez's expectation to be paid. It was reasonable for Lopez to expect

payment for the remainder of the amount owed for this work when the Buchholzes

had made apartial payment for    it

          The Buchholzes' traditional motion for summary judgment on Lopez's

quantum meruit argues there was no reasonable expectation of payment by the

Buchholzes because Lopez was          a   subcontractor   of   Preiss and the driveway,

sidewalk and flagstone work was performed under any contract with Preiss. The

Buchholzes' evidence in support of this argument is just the invoices and proof that

Lopez had previously provided other work on the home as a subcontractor of

Preiss. The Buchholzes presented no evidence that the drivewây, sidewalk, or

flagstone work that Lopez invoiced was done under any agreement between Lopez

                                            42

485 I -8480-4643.v1
and Preiss. Regardless, the evidence presented by Lopez directly conflicts with the

Buchholzes' argument. Preiss' affidavit disclaims any such agreement for the

driveway, sidewalk and flagstone work performed by Lopez and that this work was

performed by Lopez directly for the Buchholzes. (APP. 3; C.R. 192-193). Lopez's

affidavit states the same. (APP. 1; C.R. 189-190). Furthermore, it is incredulous

for the Buchholzes to argue that they were not on notice of Lopez's expectation to

be paid the remaining amounts owed when they had already partially paid Lopez.

Id. Finally, the Buchholzes would have had reasonable notice of                         Lopez's

expectation to be paid because this additional work was requested by Dave H.

Buchholz. Id. This evidence presents a genuine issue of material fact as to Lopez's

quantum meruit claim, and summary judgment cannot be affirmed on this claim.

          D. The evidence presents a genuine issue of fact as to whether Lopez has
             a constitutional lien, and the trial court erred in granting summary
             judgment on Lopez's lien foreclosure claim and the Buchholzeso
             declaratory j udgment claim.

          Texas law recognizes two types of mechanic's liens: (1) a constitutional lien;

and (2) a statutory lien. Tpx. CoNsr. art.                XVI, $ 37; Trx. Pnop. ConB $ 53.001.

The source of all mechanic's liens is the Texas Constitution, which states as

follows:

                         Mechanics, artisans and materialman, of every class, shall have
                         a lien upon the buildings and articles made or repaired by them
                         for the value of their labor done thereon, or materials furnished


                                                     43

485 I -8480-4643.v   I
                      therefore; and the Legislature shall provide by law for the
                      speedy and efficient enforcement of said liens.

TBx. CoNsr. art. XVI, $ 37. The case law in Texas holds generally that the

constitutional lien is available to a party who has contracted directly with the

owner. Da-Col Paint            Mfg   Co. v. American Indem.   Co.,5l7 S.W.2d 270,273
(Tex.ß7Q; Horan v. Frank,5l Tex. 401,405 (1879). The statutory lien under

Chapter 53 of the Texas Property Code differs from the constitutional lien in that it

protects both the original contractor and subcontractors. CVN Group, Inc.           v.


Delgado, 95 S.W.3 d 234,24647 (Tex. 2002). Thus, "[w]hether one is considered

an original contractor or a subcontractor is of fundamental importance." Da-Col

Paint Mfg. Co.,5I7 S.W.2d at273 (citations omitted)

          As stated above, the main dispute in this case is whether the Buchholzes

contracted directly with Lopez for the drivew&y, sidewalk and flagstone work at

issue. The summary judgment record contained evidence creating a dispute as to

whether Lopez contracted directly with the Buchholzes. (APP. 1-3; C.R. 189-193).

         Again, the Buchholzes' only argument on this claim was that Lopez had

previously performed some work on the home as a subcontractor of the original

contractor, Preiss. (C.R. 118-119). But the inference the Buchholzes make does

not defeat Lopez's claim as a matter of law. There is sufficient evidence in the

record creating a genuine issue of fact as to whether an express or implied contract


                                               44

485 I -8480-4643.v1
existed between the Buchholzes and Lopez that precludes this Court from

affîrming the trial court's summary judgment on this claim. For this same reason,

the trial court also erred in granting summary judgment on the Buchholzes'

declaratory judgment claim that Lopezwas not entitled to a constitutional lien.

         E. Alternativelyo even if this Court affirms the trial court's ruling on the
            objections to Lopezos summary judgment evidence, the summary
            judgment record still contains conflicting evidence raising genuine
            issues of material fact as to Lopez's claims.

         The fact that an affidavit contains both admissible and inadmissible matters

does not render       it entirely void. Krishnan   v. Law offices of Preston Henrichson,

P.C., 83 S.W.3d 295, 299-300 (Tex. App.-Corpus Christi 2002, Pet. denied)

(holding that remaining portions of affidavit not excluded as conclusory were

competent summary judgment evidence). The Buchholzes objected to a number             of

statements       in the Lopez and Priess affidavits. However, the Buchholzes did not

object to Paragraphg of Lopez's affrdavit or the invoices attached to his affidavit.

Thus, this statement and the invoices are part of the summary judgment record.

         Lopez states in Paragraph 9 of his affidavit that the "undated invoice and the

invoice dated October 7,2013... were submitted to Dave H. Buchholz for payment

on or about October 7,2013." (APP. 1; C.R. 190). The invoices reference              the

Buchholzs' þsrne-840 Haven Point Loop. (APP. 2; C.R. 191). They also identifu

the work performed as that the work was
                                        ooflagstone
                                                    in the porch and steps," o'cover


                                             45

485 l-8480-4643.v1
with flagstone bench", "driveway," and "seventeen steps." Id.Finally, the October

7, 2013 invoice referenced a $5,000.00 credit. Id. This evidence therefore shows

that Lopez performed the driveway and flagstone work for the benefit of the

Buchholzes with the reasonable expectation to be paid. This evidence, standing on

its own, presents more than a scintilla of evidence on Lopez's quantum meruit

claim. Additionally, the Buchholzes attached to their motion the draw requests by

Preiss, invoices, and checks from Preiss to Lopez which show Lopez provided

services only for the slab, framing and stucco on the home as Preiss' subcontractor.

The Buchholzes also admitted that Lopez was only hired by Priess to construct the

slab and perform framing          work. (C.R. 36). This evidence further demonstrates that

the drivewãy, sidewalk, and flagstone work were outside the scope of the work

originally performed by Lopezfor Preiss on the Buchholzes' home.

          In sum, even if portions of the Lopez and Preiss affidavits are inadmissible,

the remaining summaryjudgment evidence that was not excluded by the trial court

shows that Lopez performed the additional work for Buchholzes and that the

Buchholzes have received the benefits            of Lopez's labor for over a year now
without having to pay for it. Accordingly, there is sufficient evidence to create        a


genuine issue            of fact of unjust enrichment   such that this Court cannot affirm

summary judgment on Lopez's quantum meruit claim.




                                                46

485 I -8480-4643.v   I
UI.       The trial court erred in awarding attorneyso fees on this affirmative
          claim for relief because the Buchholzes failed to meet their burden of
          showing how their declaratory judgment claim involved an issue not
          already at issue in Lopezos original claims.

          The ooDeclaratory Judgment Act is not available to settle disputes already

pending before a court." BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841

(Tex. 1990) (citing Heritage Life v. Heritage Grp. Holding,75l S.\M.2d 229,235

(Tex. App.-Dallas 1988, writ denied)). A counterclaim based on the Declaratory

Judgment Act must state a claim for affirmative relief. Id. at 841, n. 8.    A claim for

affirmative relief is stated if the counterclaim alleges a cause of action independent

of the plaintiffs claim. Id. at 841. Thus, "â party cannot bring a counterclaim for

declaratory relief and recover attorney's fees when the counterclaim seeks

resolution of disputes already pending before the court." Thomas v. Thomas,902

S.W.2d 621, 626 (Tex. App.-Austin 1995, writ denied). The reason for this

prohibition is to prevent the use of a plea for declaratory relief "as a vehicle for

defendants         to obtain attorney's fees merely for resisting the plaintiffs right to

recover." Owens v. Ousey,241 S.W.3d 124, 132 (Tex. App.-Austin 2007, pet.

denied) (citing HECI Exploration Co. v. Clajon Gas Co.,843 S.W.2d 622,638-39

(Tex.    App.-Austin       1992, writ denied).

          Lopez's Original Petition alleged that he was entitled to a constitutional lien

pursuant to Article 16, Section 37 of the Texas Constitution by providing "valuable


                                                 47

485 I -8480-4643.v I
merchandise and services, namely the installation        of a driveway, sidewalk    and

flagstone," to the Buchholzes. (C.R. 7). Lopez sought foreclosure on this lien. 1d

The Buchholzes' Second Amended Answer and Third-Party Claim asserted a

counterclaim for declaratory judgment that Lopez is not entitled to a constitutional

lien pursuant to Article 16, Section 37 of the Texas Constitution. (C.R. 4041).

Both claims rest exclusively on whether Lopez is entitled to a constitutional lien in

this case. The Buchholzes' declaratory judgment claim is therefore a mirror image

of Lopez's constitutional lien claim. As a matter of law, the Buchholzes cannot

recover their attomeys' fees on their counterclaim          for   declaratory judgment.

Thomas,902 S.'W.2d at 626; Breitenfeld v. ,Sl,S Institute, Inc., 147 S.W.3d 672,

679-80 (Tex. App.-Dallas 2004, no pet.) ("attorney's fees are not authorized

where a counterclaim requests a declaratory judgment that is the mirror image of a

claim akeady asserted by an adversary in the suit").

         The Buchholzes had the burden to establish as a matter of law that they were

entitled to recover attomeys' fees on their declaratory judgment counterclaim.

Star-Telegram, Inc. v. Doe,915 S.W.2d471,474 (Tex. 1995); see also Landers           v.


State Farm Lloyds,257 S.V/.3d740,746        (Tex.App.-Houston [1st dist.] 2008, no

pet.) ("deficiencies in the movant's own proof or legal theories might defeat the

movant's right to judgment as a matter of law"). Because Texas law does not allow

recovery       of attorneys' fees for mirror-image   declaratory judgment claims, the

                                           48

485 I -8480-4643.v1
Buchholzes failed to establish that they were entitled to judgment as a matter       of

law on their claim for attorneys' fees. The trial court erred in awarding         the

Buchholzs' attorneys' fees and must be overruled on this point.

                                     CONCLUSION

         Based upon the foregoing, this Court should reverse the       trial   court's

December 12, 2014 order and Final Judgment. Lopez presented competent

summary judgment evidence creating issues of fact as to each of his claims. The

trial court erred in excluding much of this evidence, and this effor resulted in the

improper granting of the Buchholzes' summary judgment motion. The trial court's

summary judgment must also be reversed despite the exclusion             of   Lopez's

evidence because the remaining evidence presented fact issues on its own. But

regardless of any of these issues, this Court must reverse the trial court's award   of

attorneys' fees because the Buchholzes' mirror-image counterclaim cannot support

recovery of attorneys' fees as a matter of law.

                                         PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellant Juan O. Lopez dlbla

J.L. Construction Co. prays that this Court (1) REVERSE the trial court's order

sustaining Appellees Dave H. Buchholz and Mary         A. Buchholz's objections to

Appellant's summary judgment evidence; (2) REVERSE the trial court's order

granting summary judgment; (3) REVERSE, the trial court's Final Judgment

                                          49

485 l -8480-4643.v1
entered on January 14, 2015;   Ø) REMAND the case to the trial court for further
proceeding; and that Appellant be granted such other and further relief, at law or in

equity, to which it may show itselfjustly entitled.

                                       Re   spectfully submitted,

                                       Conrs lRosn

                                       By        Richard C. McSwain
                                       Richard C. McSwain
                                       Texas Bar No. 24002588
                                       Adam J. Richie
                                       Texas Bar No. 24064164
                                       Ryan T. Kinder
                                       Texas Bar No. 24065560
                                       Jamie Cohen
                                       Texas Bar No. 24054524
                                       1020 Northeast Loop 410, Suite 800
                                       San Antonio, Texas 78209
                                       (2 1 0) 224-7 098 Telephone
                                       (2 I 0) 212-5 698 Facsimile
                                       ATTORNEYS FOR APPELLANT




                                          50

485 I -8480-4643.v I
                               CERTIFICATE O F'COMPLIANCE

          As required by Texas Rule of Appellate Procedure 9.4, I HEREBY
CERTIFY that:

          1. This appellant's brief contains 9,824 words, as determined by the
             computer's word-count function, excluding the sections of the document
               listed in Texas Rule of Appellate Procedure 9.4(i)(1).

          2. This appellant's brief complies with the typeface requirements of Texas
             Rule of Appellate Procedure 9.5(e) because it has been prepared in a
             proportionally spaced typeface using Microsoft Word 2010 in 14-point
              Times New Roman font for the text and 12 point Times New Roman font
              for the footnotes.

                                              /s/ Richard C. McSwain
                                            Richard C. McSwain




                                              51

485 I -8480-4643.v1
                              CERTIFICATE OF SERVICE

          I
        HEREBY CERTIFY that a true and correct copy of the foregoing
instrument was delivered to all counsel of record in accordance with Rule 9.5 of
the Texas Rules of Appellate Procedure on this2grh day of April,2015.

          Charles M.R. Vethan
          Joseph L. Lanza
          J. Seth Grove
          VBrrmN Law FIRtr,t, PC
          8700 Crownhill Blvd, Suite 302
          San Antonio, Texas 78217
          Attorneys for Appellees
          Via Facsimile: (210) 826-2223



                                             /s/ Richard C. McSwaín
                                           Richard C. McSwain




                                            52

485 I -8480-4643.v1
                                                                                      ^ééÉää~åíDë=_êáÉÑ
                                                                                         ^ééÉåÇáñ=N
                       .,Ð
                                                                      Ð



                                     CAUSE NO. C2û1+{1259C

luÂhf o.l,oPEL                                                      INTHEDISTRICT COUff
DBA JJ- COI{STRUCTTON CO,
          tu;atit
YT


I'AVE ¡I. EUCTI¡IOT.Z AIÌD
M.âRY     À EUC!ÛTOLZ,                                              coltal.coLrNTY,TErAs
          IhÊnd.ût
vs
sccfrT PBErssA¡\¡D
ELECTn¡C Crrr, rJ.C,
       Itì¡¿Pa¡f Ocøøun                                             74TX ¡UDICI.AL DISTRICT



                                AFEm^YmOqJUllN (þ I OPr"r
S'IATE OF TEXAS                 $
                                $
COIJNTY OF BEXAR                $

      BHFORÊ ME, rhç ndcrsigrted authøity, on this day personalþ appcarcd Jun O. lppce,
lnown to me to be thc pgson u¡tro¡c n¡mc is sbscribcd lo thic afñdavil, who swoæ o¡ oalh thal
thc following   hct¡!¡ç ül¡c:

     l.   My name is J¡¡a¡r O. Lopee. I am ovcr 18 ycas of agc and I cn compËtoùt to makc this
          affidavit which is tnr ¡nd coÍcct, nnd which is bscd on ny pcnond lnowledgc, and is
          tnadc volunurily.

     2. t a¡n rhc Solc Proprietor of J. I.. Co¡rsrr¡¡rion Co. a¡rd in such capecity perform all
          admi¡risuative and operations üßtivitiæ of J. L. Constn¡ction Co, It rvas in my capac¡ty
          as Sole Propristor thåt I g¡inr:d pcr¡on¿l krcwtcdge of¡he farts ser foíb in thi¡ Amøvir


     3. ln my capacity as the Sole ltroprictor of J. L. Constn¡clion Co, I             oversaw thc
          consmrction wort performed at thc residcnce of Dave H. ¡nd Mary     ¡\   Buchholz, loe¡¡ed
          at E40 thven Point Loop, Ncw Bnunfels' lbxtu 7t132.

     4.   Thc work for wtrich J. L. Construstiorn Co, scckr payncnt was pcrfotmcd in a good and
          workmsnlike manncr at thc dircct rcqræsl of Devc H. Buclùol¿

     5.   Dave H. Buctrlnlz. approvod tlæ work a¡d paid omly a pårtiêl paymcnt of f5,000.00
          le¿vins a balancc dr¡e of $27Jt{.80.




                                            EXHIBIT A

                                              189
                            ,$                                                ,,;Ð




      6' F^p"rt{ nyr1:Lll'p                       wu   peid dirccrrv by Dave H. Buchhorz on Augr¡st 22,
         2013, urdcrhis personal            ba¡ù accorni.

      7'   Tlæ work was perfonnod in acco¡daæc wirh           fu   insnrcdon gvcn by Davc H. Buchholz
           ro rne on behalfofJ. L Consúr¡ctim Co.

      I'   Ihc pnicc clrrgcd weß the ressonable and nææsary v¡luc ofthe r¡orlc pcrfonncd-

      9.   Thc u¡daæd invoíce and ü¡c invoicc d¡rcd Octobsr 7,2013 (copics
                                                                           of which årc anachëd
           lçrcto),
                  r've¡e submittcdto D¡ve H. Buchhoþ rorpayreotoooíåÉr
                                                                              o.ruu. 7,2013.
           FURTI{I.R ÅFI.IANT'        S.d   NH NoT




           sutlscRttlF.t) ¡,¡\TD srsoRN BEF()RH yE bl t\ rcidl,en o. l.opcr
     Noveu¡lær 2014, ur  ccniï which re¡mcrs mv h¡nd a¡rdsc¡l of ofhcc.
                                                                            on thir              _1Ít,
'f

                                                                                                           L.(rg   )
                                                                    R¡blic in ¡nrl for'fhe Sntc of Bcxrr
                      r1rütcË{tnuilÉ16
                        ll¡rñlt,¡dh
                      ¡fmhbú$i!|r                           My comrrirsion expires on                lt




                                                      190
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                                                          EXT{'IBIT B
                                                                               ^ééÉää~åíDë=_êáÉÑ
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                         rþ


                                  CAUSE NO. C2014{2õ9C

 JUAN O. LOPEZ DBAJ.L.
                                                  s                 IN THE DISTRICTCOURT
 CONSTRUCTION CO.,
                                                  s
      Plaintifr
                                                  s
                                                  s
 v
                                                  s                 COMAL COUNTY. TEXAS
                                                  s
DAVE H. BUCHI{OI¿AND
                                                  s
MARYA. BUCHHOLZ
                                                  s
     Deføndants
                                                  $
                                                  s
v.
                                                  s
                                                  s
SCOTT PREISS, S BAR S
                                                  s
CONSTRUCTION, [I.G, and
                                                  s
ELECTRIC CITY, LLC
                                                  $
     Th¡rd-Pally Datendanß                        s                274T'r JUDICÚAL DISTRICT



STATE OF TEXAS                       s
                                     s
COUNTY OF COMAL
                                     s
        Before rne, the undeaþned authority, personally app€ared Robert                                I
                                                                        Scott preiss,                  I
                                                                                                       t
whd, b€¡ng by nre duþ surorn, deposed a¡ foltows:
                                                                                                       I
        '1'   þly nams ís Robert Scotl PreÍss. I arn of sound mind. capable
                                                                            of making rhis
                                                                                                       r
affidavit, and over the age of eighteen (18)          pars, I havs never been convbted ol a
felony o¡ a crime involving moralturpitude. I havo personal                                            I
                                                            knoadedge of the slatemenh             I

                                                                                                   I


ln thls affidavit, and the statemenls in this affldavit
                                                        are true and conest.                       i
       2'     I am the Sole Proprietor of Scott Preiss Construction and in such capacity           ¡

                                                                                                   I

perform all administrative and operations aclivities
                                                     of scott preiss Construction. lr was
                                                                                                   :
                                                                                                   t.

                                                                                                   I



ín my capacity as Sole Propdetor that I galned pcrsonal
                                                        knowledge of the facts sef forth
in this Afüdavit.




                                         EXTIIBIT C

                                            192
                       Ð                                            Ð


        3'   As sole Proprlêtor of   sco[ Preiss Const¡uglion, I entered    a written agreement
 wilh Dave H' Buchholz and MaryA. Buchholz to perbrm
                                                     a dcfined scope of vrprk at lhe
 Bucfrholz' residence located at 940 Haven Loop point,
                                                       New Braunfers, Texas Tg1g2.
       4'    The writlen agæement I hatt with Darre H. Buchhotz
                                                                and Mary A. Buchholz did
 not include the installation of a non driveway, sida¡alk
                                                          and flagstone.
       5'    The lnstaÛlatien ol a new driwwey, sldeuralt< and flagstone
                                                                         at ¡¡1e Buchholf
resldence was exFa work perfomed by Juan          o. Lopez (the .Extra work).
       6.    The Extra work performed by Juan o. Lopez was not performed
                                                                         subject to
the written agreement between me and the Buchholzes,,

       7.    The Extra work performed by Juan o. Lopez was not performed
                                                                         under any
agreement between me and Juan O. Lopez_

       L l had no involvement          in directing or agreeing to pry for the Extra work
peúormed by Joan O, Lopez

       9. The Buchholzes'dlrected Juan           Lopez   lo             Extra Work"
       10. Further Affiant sayeth naughl




        SUBSCRTBED AND SWORN ro me on the
certify which witness my hand and ofücial seal.           {}   - day of No¡ember, 20i4,    to


                                                               olqÂ €, LV

                                                                 ÊlûC+.¿0fl




                                           193
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                              ,.þ                                                 FILED
                                                                                  Susan Collier
                                                                            c2014{259C
                                                                            1011712014 4:34:03 PM
                                                                            Kalhy Faulkner
                                                                            Comal County
                                    CAUSE NO. C2014-0259C                   District Clerk


JUAN O. LOPEZ DBA J.L.                           $                IN TIIE DISTRICT CEMËî
CONSTRUCTION CO.,                                $
         PIoìntiff                               $
                                                 $
vs.                                              $
                                                                                                     (J


                                                 $
                                                                                                     (n
                                                                                                    x .¡.t-
                                                                                                            g-n
DAVE H. BUCHHOLZ AND                                                                              5 i Ct
                                                 $                                                          i--rr
MARY A. BUCHHOLZ                                                                                      fll
                                                                                                      (.'   r-j
                                                 s                 COMAL CO
       Defendants                                $
                                                                                                  3Ë
                                                                                                           cng
vs.
                                                 $
                                                 s                                                >l       3d
                                                                                                           çn3
                                                 $                                                3ñ (., Ð
SCOTT PREISS, and                                                                               - C:D
                                                                                                     gìÐ
                                                 $                                           'u
ELECTRIC CITY, LLC                               s
                                                                                             '¿ -t
    Third Pørty Defendants                       $                274Ih   JUDICIAL DISTRICT
      ORDER G,RASTëç
                                  PTTPNDANTi PAVE H. BUCHHOTZ AND MARY A.
                     "ucnHo..?s.
                                     Motton to*       tuM*^*tm
TO THE HONORABLE JUDGE OF SAID COURT:

         After considering Defendants, Dave H. Buchholz and Mary A. Buchholz's Motion             for
                                                                                                                  I
Summary Judgment. the pleadings, the resporrse, the affidavits, and other evidence
                                                                                   on file,       the ÑL)
court:   SWml ¡/5 Þ*r¿"\4*rï'                     oø-T€eã1   oNt ø?t*, un r,r, Shu*1g/er/
         J¿>&Ent?t ¡g.lt            bëa¡ Ue   ; A-N{                                                      IZÞEC   lf
         CRANTS Defendants' Motion for Summary Judgment.

         THE COURT FINDS, AND tT lS THEREFORE ORDERED that Plaintiff Juan                            O.

Lopez DBA J.L. Construction Co.'s Claims for Breach         of Contract, Suit on Swom account,
Quantum Meruit and foreclosure of a constitutional lien are hereby dismissed with prejudice.

         IT IS FURTHER ORDERED that the Court makes the following declarations:

          l.   Juan O. Lopez is not entitled to a constitutional mechanics and materialman's

               lien pursuant to the Texas constitution, Article 16, section 37.

         2. Any Affidavit for Constitutional Mechanic and Materialman's lien filecl               by

o_rder Grønring Defendønts, Døvîd rr. Buchholz and Mary A. Buchholz's,
                                                                            Motionfor
Summary Judgment
                                                216

                                                                                                                      .ç
                          @                                                {,Ð


           Juan O. Lopez.related to this case is hereby declared void.

       IT IS FURTHER ORDERED that Defendants recover the following from Juan O. Lopez

DBA J.L. Construction Co.,

              l.   Reasonable and necessary attorney fees   in the amount of Twenty Thousand,

                   Eight Hundred and Fifty-Three and 84/100 dotlars ($20,853.84) for

                   Defendants, Dave H, Buchholz and Mary       A. Buchholz's attorneys'     fees as

                   required under TEx. crv. pn¡c, & Rn"r.   coor   A¡¡r.r. $ 37.009 (vemon).'

              2.   Court costs.

              3.   Post judgment interest from Plaintiff Juan O. Lopez       DBA J.L. Construction

                   Co. at the rate of five percent (5%\ per annum, commencing from the date     of
                   this Judgment as provided in Tex. Fin, Code g 304.003(c).




      SIGNED    on lL-            day   of                         20t4.




order Grøntíng Deþndants, David II. Buchholz ønd Mary ,4. Buchholz,s, Motion
Summøry Judgment
                                                                             þr
                                             217
                                                                                       ^ééÉää~åíDë=_êáÉÑ
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                                                                                           ^ééÉåÇáñ=R
             I                        1@                                   .@

..@                                          CAUSE NO. C2014-0259C-B

       JUAN O. LOPEZ DBA J.L.                              $               IN THE DISTRICT COURT
       CONSTRUCTION CO.,                                   $                            JAN 1   4 2t15
                 Pluintiff                                 $
                                                           $
                                                                                                    NJ       kllan
       vs.                                                 $                                                  D(.

                                                           $
       DAVE H. BUCHHOLZ AND                                $                COMAL COUNTY, TEXAS
       MARY A. BUCHHOLZ                                    $
                 Defendunts                                $
                                                           $
                                                           $
                                                           $                27 4Th JIJDICIA     L   D   I   STRICT


                                                  FINAL JUDGMENT

                 On December 12, 2014, the Court Granted Defenclants' Dave [1. Buchholz and Mary A.

       Buchholz's Motion for Summary Judgment against Juan O. Lopez DBA J.L. Construction Co.
(þ               All   matters   in   controversy, legal and factual, were submitted   to the Court for             its

       determination. 'fhe Court, after reviewing all evidence and arguments of counsel, entered its

       decision for Plaintifï. Plaintitï filed a motion for entry of final judgment based on the Court's

       decision and theref'ore, the Court:

                 Hereby RENDERS fìnal judgment fbr Defèndants' Dave           H. Buchholz       and Mary A.

       Buchholz.

                 TI{E COURT FINDS, AND IT IS THEREFORE ORDERED that Plaintiff Juan O.

       Lopez DBA J'L. Construction Co.'s Clai¡ns f'or Breach of Contract, Suit on Swom account,

       Quantum Meruit and foreclosure of a constitutional lien are hereby dismissecl with prejudice.

                 IT IS FURTHER ORDERED that the Court makes the f'ollowing declarations:

                  1. Juan O. Lopez is not entitled to a constitutional    mechanics and materialman's
r:.3                   lien pursuant to the Texas constitution, Articre 16, section 37.


       Finil Juilgment
                                                         240

                                                                                                                          M
             Ì                                                                  ('Ð
      {                           '-@

,]Ð               2. Any Afftdavit for Constitutional            Mechanic ancl Materialman's lien lìled by

                       Juan O. Lopez related to this case is hereby declared void.

                 IT IS FURTFIER ORDERED that Defendants recover the following from Juan O, Lopez

          DBA J.L, Construction Co.,

                          L    Reasonable and necessary attomey lèes      in the amount of Twenty   Thousand,

                               Eight Flundred and Fifty-Three and 84/100 dollars ($20,853.84) for

                               Defenclants, Dave   H. Buchholz and Mary A. Buchholz's attomeys'       fees as

                               required under Tex, crv. Pn.qc. & REvr. cooa ANN. $ 37.009 (vemon),'

                          2. Court costs.
                          3.   Post judgment interest   fiom Plaintiff Juan O. Lopez DBA J.L, Construction

                               Co. at the rate of five percent (5%) per annum, commencing from the tlate   of
                               this Judgment as provided in Tex. Fin. Code g 30a.003(c).
í,Ð
          This judgment linally disposes of all slaims and all parries, and is appealable.

                  l.     The Court orders execution to issue tbr this judgment anrJ all other processes

          necessary to enforce this judgment.

                 2.      Allrelief not          sly granted herein is denied.




                 SIGNED on                  day   of                            0l 5.




                                                                   J




3
          Fìnnl Judgment
                                                           241
