                       NUMBER 13-17-00710-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DEL SOL HOMES, LLC AND JOSE
DE LA FUENTE,                                                      Appellants,

                                     v.

HIDALGO COUNTY HEAD START
PROGRAM BY AND THROUGH
HIDALGO COUNTY,                                                      Appellee.


             On appeal from the County Court at Law No. 1
                      of Hidalgo County, Texas.


                      MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
              Memorandum Opinion by Justice Tijerina

      Appellee Hidalgo County Head Start (HCH) sued appellants Del Sol Homes, LLC

and Jose De La Fuente (collectively, Del Sol) for breach of contract, and Del Sol

counterclaimed for the same.   The trial court granted HCH’s motion for summary
judgment in opposition to Del Sol’s counterclaim and its motion for summary judgment on

its breach of contract claim. By two issues, Del Sol contends that the trial court erred in

granting both summary judgments. We affirm.

                                   I.     BACKGROUND

A.     HCH’s Original Petition and Del Sol’s Counterclaim

       On or about October 24, 2012, HCH and Del Sol entered into a contract for the

relocation of a building, which Del Sol was to complete by December 31, 2012. Del Sol

substantially completed the project on April 12, 2013, four months after the contract

deadline.   On September 12, 2013, HCH filed its original petition against Del Sol,

asserting it breached the contract by failing to timely relocate the building. Del Sol filed

an answer and counterclaim alleging HCH breached the contract by “changing the terms

of the contract and requesting extra work without following proper procedures.” According

to Del Sol, HCH Program Director Teresa Flores changed the plans of relocation after its

bid had been accepted and approved by a board of directors, which resulted in delays.

B.     HCH’s Motion for Summary Judgment in Opposition to Del Sol’s
       Counterclaim

       On May 23, 2014, HCH moved for a traditional and no evidence summary

judgment asserting there was no evidence to substantiate Del Sol’s counterclaim that

HCH breached the contract by: altering the terms of the contract; requesting extra work

without following proper construction procedures; authorizing any plans which required

approval by the commissioner’s court or policy council board; or threatening appellants.

To support its motion, HCH attached the affidavits of Flores and Assistant Director Steven

McGarraugh along with the contract in question and Del Sol’s original bid sheet.

C.     Del Sol’s Response to HCH’s Motion for Summary Judgment

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        On June 25, 2014, Del Sol filed a response to HCH’s no evidence summary

judgment motion, arguing that summary judgment should be denied “because [HCH] has

not provided any summary judgment proof . . . .” To support its response, Del Sol

attached De La Fuente’s affidavit, in which he averred: “The project was not completed

by December 31, 2012, mainly because of the fault of [HCH] in changing the plans after

[HCH] had approved the bids submitted by [Del Sol].” According to De La Fuente, this

“raises a genuine issue of material fact as to whether [HCH] breached the contract by

changing the plans after [HCH] had accepted the bid from [appellants].” After reviewing

the pleadings, the trial court granted HCH’s motion for summary judgment in opposition

to Del Sol’s counterclaim. On June 20, 2017, Del Sol asked the trial court to reconsider

its February 11, 2015 order granting HCH’s no evidence summary judgment as to Del

Sol’s counterclaim.

D.     HCH’s Traditional Motion for Summary Judgment

       On February 12, 2015, HCH filed a traditional motion for summary judgment on its

claim for breach of contract, claiming that as a matter of law, Del Sol breached the

contract, and HCH incurred the following damages: delay damages provided for in the

contract; costs for a lease agreement with another entity; costs of electrician services;

and attorney fees. As evidence to support its summary judgment motion, HCH attached

the contract, the affidavit of the Assistant Program Director, the electrician’s bill of

services, and its attorney’s affidavit.

       Del Sol responded by asserting that there were genuine issues of material fact as

to: whether HCH breached the contract; whether HCH threatened Del Sol; whether HCH

failed to provide necessary water meters; whether HCH approved the changes after



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December 31, 2012; whether HCH provided electrical plans in May; whether rain delays

prevented Del Sol from completing the work; and whether HCH failed to pay Del Sol. It

attached another affidavit from De La Fuente to support its response.

E.    Trial Court’s Ruling

      On December 1, 2017, the trial court denied Del Sol’s motion for reconsideration

on granting HCH’s no evidence summary judgment. It subsequently granted HCH’s

traditional motion for summary judgment on December 5, 2017, issued a judgment

against Del Sol for consequential damages and attorney’s fees, and disposed of all

claims. This appeal followed.

                        II.     NO EVIDENCE SUMMARY JUDGMENT

      By its first issue, Del Sol contends the trial court erred by granting HCH’s no

evidence summary judgment in opposition of Del Sol’s counterclaim.

A.    Standard of Review

      We review the grant of summary judgment de novo. Ortega v. City Nat’l Bank, 97

S.W.3d 765, 771–72 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (op. on reh’g).

We will affirm a summary judgment “if any of the theories presented to the trial court and

preserved for appellate review are meritorious.” Joe v. Two Thirty-Nine J.V., 145 S.W.3d

150, 157 (Tex. 2004).

      A motion for summary judgment may be brought on no evidence or traditional

grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no evidence summary judgment

is equivalent to a motion for pretrial directed verdict. Mack Trucks, lnc. v. Tamez, 206

S.W.3d 572, 581 (Tex. 2006); Ortega, 97 S.W.3d at 772. Such a motion should be

granted if there is no evidence of at least one essential element of the claimant’s cause



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of action. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). The burden

of producing evidence is entirely on the non-movant; the movant has no burden to attach

any evidence to the motion, and if the non-movant produces evidence raising a genuine

issue of material fact, summary judgment is improper. See TEX. R. CIV. P. 166a(i). All

that is required of the non-movant is to produce a scintilla of probative evidence to raise

a genuine issue of material fact on the challenged element. Forbes, lnc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Ortega, 97 S.W.3d at 772. “Less

than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than

create a mere surmise or suspicion of a fact.’” Ortega, 97 S.W.3d at 772 (quoting Kindred

v. Con/Chem, lnc., 650 S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172.

Conversely, more than a scintilla of evidence exists when reasonable and fair-minded

individuals could differ in their conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97

S.W.3d at 772 (citing Transp. lns. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). ln

determining whether the non-movant has produced more than a scintilla of evidence, we

review the evidence in the light most favorable to the non-movant, crediting such evidence

if reasonable jurors could and disregarding contrary evidence unless reasonable jurors

could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 825, 827

(Tex. 2005).

B.    Discussion

      HCH moved for summary judgment on Del Sol’s counterclaim in part on the basis

that there was no evidence that HCH breached the contract. Thus, the burden was

entirely on Del Sol to produce evidence on the challenged element of its breach of

contract claim. See TEX. R. CIV. P. 166a(i). Such a claim requires proof of the following



                                            5
elements: (1) the existence of a valid contract; (2) performance or tendered performance

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

resulting from the breach. Doss v. Homecoming Fin. Network, Inc., 210 S.W.3d 706,

713 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied); Abraxas Petroleum Corp.

v. Hornburg, 20 S.W.3d 741, 758 (Tex. App.—El Paso 2000, no pet.). 1

       In its response to HCH’s no evidence summary judgment motion, Del Sol argued

that HCH’s motion “should be denied because [HCH] has not provided any summary

judgment proof to support its Motion for Summary Judgment . . . .” However, HCH was

not required to provide any summary judgment proof to support its no evidence summary

judgment motion. See TEX. R. CIV. P. 166a(i). Rather, Del Sol was required to produce

at least a scintilla of probative evidence to raise a genuine issue of material fact on each

element of its breach of contract claim. See Forbes, 124 S.W.3d at 172.

       Del Sol’s response was one sentence long:                    the affidavit attached “raises a

genuine issue of material fact as to whether [HCH] breached the contract by changing the

plans after [HCH] had accepted the bid from [Del Sol].” Del Sol, however, did not

elaborate how the alleged change in plans resulted in a breach. Del Sol attached De La

Fuente’s affidavit in which De La Fuente stated: “Director, Teresa Flores, changed the

original plans after the bid submitted by [Del Sol] had been approved by [HCH],” but Del

Sol did not provide any proof or evidence of how the change in plans resulted in HCH

breaching the contract. Del Sol did not identify any contract term violated by Flores’s

alleged actions. Although De La Fuente claims that the alleged change was a breach

resulting in “more work, costs, and expenses” to Del Sol, it provided no proof that the



       1   The only element in dispute is who allegedly breached the contract.

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change caused more work or expenses. To have raised a fact issue, Del Sol needed to

identify what provision of the contract HCH allegedly breached and explain the

significance of its evidence in relation to its claim. Instead, De La Fuente’s affidavit

contains conclusory assertions that Del Sol did not complete the project on time “mainly

because of the fault of [HCH].” Affidavits consisting only of conclusions are insufficient to

raise an issue of fact. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)

(per curiam) (stating that “conclusory affidavits are not enough to raise fact issues”);

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). The affidavit must set forth

such facts as would be admissible at a conventional trial on the merits, see TEX. R. CIV.

P. 166a(f) (“affidavits . . . shall set forth such facts as would be admissible in evidence”),

and must be direct, unequivocal, and controvertible. Brownlee, 665 S.W.2d at 112.

       On appeal, Del Sol also claims HCH’s change resulted in the need for Del Sol to

perform additional work; HCH did not follow proper construction procedures in altering

the contract; and it was HCH’s fault that Del Sol failed to timely comply with deadlines.

However, in the trial court, Del Sol failed to raise these contentions in response to HCH’s

no evidence summary judgment motion. The extent of Del Sol’s argument to defeat

HCH’s no evidence summary judgment motion was that HCH “breached the contract by

changing the plans after [HCH] had accepted the bid from [Del Sol].” We may not

consider grounds for reversal of a summary judgment that were not expressly presented

to the trial court by written response to the motion. See TEX. R. CIV. P. 166a(c) (“Issues

not expressly presented to the trial court by written motion, answer or other response

shall not be considered on appeal as grounds for reversal.”); McConnell v. Southside

Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). Thus, the trial court did not err in



                                              7
granting HCH’s no evidence summary judgment on Del Sol’s claim for breach of contract.

Del Sol’s first issue is overruled.

                          III.   TRADITIONAL SUMMARY JUDGMENT

       By its second issue, Del Sol contends the trial court erred by granting HCH’s

motion for summary judgment on HCH’s breach of contract claim.

A.     Standard of Review

       When reviewing a traditional motion for summary judgment, we must determine

whether the movant met its burden to establish that no genuine issue of material fact

exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant

bears the burden of proof, and all doubts about the existence of a genuine issue of

material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at

215. We take as true all evidence favorable to the non-movant, and we indulge every

reasonable inference and resolve any doubts in the non-movant’s favor.             Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions

in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes,

236 S.W.3d 754, 755 (Tex. 2007) (per curiam). When, as in this case, the trial court does

not specify in the order granting summary judgment the grounds upon which the trial court

relied, we must affirm the summary judgment if any of the independent summary

judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d

868, 872 (Tex. 2000).

B.     Discussion



                                             8
       In its motion, HCH argued that as a matter of law Del Sol breached the contract by

not timely completing construction, and Del Sol concedes this fact. As evidence, HCH

attached the duly executed contract which incorporated Del Sol’s original bid. The

contract provided that Del Sol was to complete the project by December 31, 2012 and

“no amendment, modification or alteration of terms shall be binding unless the same is in

writing, and duly executed by the parties.” Furthermore, because Del Sol did not complete

the project on time, HCH had to enter into a lease agreement with another entity, resulting

in damages. Moreover, the summary judgment evidence provided that HCH engaged the

services of an electrician to finish the project. HCH presented the contract, Del Sol’s bid,

bills, invoices, and affidavits, purportedly showing Del Sol breached the contract. Del Sol

does not contend that this evidence is insufficient to prove HCH’s breach of contract claim.

After reviewing HCH’s summary judgment evidence, we conclude HCH met its initial

summary judgment burden of showing that that it is entitled to judgment as a matter of

law on its breach of contract claim because Del Sol did not complete the project by

December 31, 2012 as the contract required. See TEX. R. CIV. P. 166a. Accordingly, the

burden shifted to Del Sol to raise a fact issue sufficient to defeat summary judgment. See

id.

       In response to HCH’s traditional motion for summary judgment and on appeal, Del

Sol, again, makes the bare assertion that a genuine issue of material fact exists on HCH’s

breach of contract claim. Like its response to HCH’s no evidence summary judgment

motion, Del Sol generally refers to De La Fuente’s affidavit. By one sentence, it continues

to assert that Del La Fuente’s affidavit “raise[s] genuine issues of material fact,” and that

is the extend of its argument. Other than the general summary judgment standards, Del



                                             9
Sol cited no authority, does not specifically state the elements of the claim being attacked,

or provide any analysis as to why De La Fuente’s affidavit raises a fact issue as to HCH’s

claim. By failing to make any substantive analysis or argument, Del Sol waived its

contention that there is a fact issue as to who breached the contract. See TEX. R. APP.

P. 38.1(i) (providing that appellant’s brief must contain a clear and concise argument for

the contentions made, with appropriate citations to authorities and the record); Sunnyside

Feedyard, L.C. v. Metropo. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.—Amarillo 2003,

no pet.) (recognizing that the failure to either cite authority or advance substantive

analysis waives an issue on appeal). Accordingly, we overrule Del Sol’s second issue.

C.     Summary

       Because Del Sol failed to present evidence of HCH’s alleged breach in its breach

of contract counterclaim, we affirm the trial court’s grant of no evidence summary

judgment in favor of HCH on Del Sol’s counterclaim. Further, because HCH met its

burden of conclusively establishing its breach of contract claim as a matter of law and Del

Sol failed to present evidence raising a fact issue on any element of the claim, we affirm

the trial court’s grant of summary judgment in favor of HCH on its claim.

                                    IV.    CONCLUSION

       We affirm the final summary judgment of the trial court.


                                                                JAIME TIJERINA,
                                                                Justice


Delivered and filed the
7th day of November, 2019.




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