                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00289-CV


DAVID SCOT LYND                                                     APPELLANT

                                       V.

LEA COX                                                              APPELLEE


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            FROM THE PROBATE COURT OF DENTON COUNTY
                   TRIAL COURT NO. PR-2011-00093

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Pro se appellant David Scot Lynd2 appeals the trial court’s summary

judgment in favor of appellee Lea Cox. In thirty-two issues, Lynd argues that the



      1
       See Tex. R. App. P. 47.4.
      2
       At trial, Lynd was represented by counsel.
trial court erred by granting summary judgment.        Lynd’s brief and reply brief

contain numerous allegations that Cox perjured herself during the course of this

case; that Cox submitted fraudulent documents in support of her summary

judgment motion; that the attorneys in this case reached agreements behind his

back out of fear of Cox’s influence over the trial court’s ability to impose

sanctions if Lynd’s attorney defended this suit correctly; that Cox illegally avoided

the probate of her father’s will to falsify title closure on the property involved in

this case; and that due to Cox’s “back room interference,” the trial court assisted

Cox at trial because it needed “a way to ignore” the law and evidence applicable

to this case. At one point in his briefing, Lynd contends that Cox’s initial attorney

in this case was a “criminal attorney” that Cox hired specifically because of her

own “criminal activity” and “felony acts.” Lynd directs us to no record evidence

for any of these allegations. We will affirm.

                                 II. BACKGROUND

      Lynd filed this suit in February 2011. In his amended petition, the live

pleading at the time of summary judgment, Lynd sought damages under the

theories of breach of contract, quantum meruit, and judicial foreclosure of

constitutional liens. As described in his petition, these causes of action relate to

“construction of improvements to property” alleged to be owned by Cox when

Lynd performed the construction. The damages Lynd sought specifically relate

to a “deck and patio cover, storage building, and gutters.” As can be gleaned



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from the record, Cox once owned a mobile home situated on a lot in Lewisville. 3

The record indicates that Cox never owned the real property but at one time

owned the mobile home. It is not disputed that Lynd made these improvements

to the mobile home.

      After discovery, Cox filed her motion for summary judgment, claiming the

affirmative defenses of accord and satisfaction and res judicata.       She also

asserted that Lynd failed to establish his right to judicial foreclosure based on

constitutional liens.

      As to her defense of accord and satisfaction, Cox attached an affidavit to

her motion in which she stated that she had personal knowledge that a receipt,

which she also attached to her motion, was a true and correct receipt signed by

Lynd in which he agreed to forego collection for the work on the deck and patio

cover, storage building, and gutters in lieu of past rent that he owed Cox for the

months of March, April, and May 2007. Cox also attached Lynd’s deposition

testimony in which he admits that he signed the receipt acknowledging Cox’s

payment in full for the services. She further attached a purported “abandonment

notice” signed by Lynd in August 2007, wherein Lynd “voluntarily vacate[d Cox’s

mobile home]” and wherein he “recind[ed] any claim through notice of

abandonment, or any other notice, or right known or unknown.” Moreover, Cox



      3
         The real property is located at 402 E. Highway 121, Lot 500, Lewisville,
Texas.

                                        3
attached Lynd’s deposition testimony in which he stated that he drafted and

signed this document.

      As to her defense of res judicata, Cox averred that Lynd had already

sought damages for the work he performed on the deck and patio cover, storage

building, and gutters in an earlier action in justice court.      In support of this

position, Cox attached petitions, notices, and orders for dismissals with prejudice

on claims that Lynd had asserted in a previous action in justice court relating to

work performed on the deck and patio cover, storage building, and gutters.4

      Cox also attacked Lynd’s constitutional-lien claims in her motion.         Cox

averred that she never owned the real property on which the mobile home she

once owned was situated and that the bank repossessed the mobile home

sometime after Lynd voluntarily abandoned it in August 2007.

      In his response, Lynd argued that “all purported agreements were based

on duress.”    In support of this position, Lynd attached portions of his own

deposition testimony in which he stated that he signed the receipt “Pretty much.

Under duress.” When asked what duress he was speaking of, Lynd testified that

Cox had given him the ultimatum to “[e]ither give [the receipt] to her or move out.”



      4
        There is also evidence in the record that Lynd filed a different suit alleging
a marriage between him and Cox. In that suit, Lynd attempted to have the
alleged couple’s estate divided. According to an order attached to Cox’s motion,
the trial judge in that case sanctioned Lynd and ordered him to pay Cox’s
attorney’s fees and court expenses. In her motion, Cox averred that Lynd has
not paid her any of the monies ordered.

                                          4
      Although Lynd responded to Cox’s res judicata argument with the position

that “foreclosure of mechanic’s and constitutional lien[s]” could not have been

part of the previous action in justice court, Lynd did not provide any evidence to

contradict Cox’s position and evidence that she never owned the real property

that the mobile home was situated on, nor did Lynd present any evidence

contrary to Cox’s position that the mobile home had been repossessed.

      At the summary judgment hearing, Lynd objected to Cox’s summary

judgment evidence, asserting that her affidavit and supporting documents did not

rise to the level of competent summary judgment evidence. While overruling

Lynd’s objection, the trial court noted that Cox’s affidavit recited that she had

personal knowledge of the facts stated within her affidavit and supporting

documents and that she knew the facts asserted to be true and correct.

Furthermore, Lynd ultimately conceded that he was unaware of who owned the

property or that the mobile home had been repossessed, but he did not bring

forward any evidence at that time to contradict Cox’s position that she did not

own the real property or that the mobile home had been repossessed. At the

conclusion of the hearing, the trial court granted Cox’s summary judgment

motion. This appeal followed.

                                 III. DISCUSSION

      Because we conclude that the trial court’s summary judgment is valid

under at least one theory of law asserted in Cox’s summary judgment motion

regarding Lynd’s breach of contract and quantum meruit claims—namely, her

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affirmative defense of accord and satisfaction—we will address Lynd’s issue on

appeal regarding accord and satisfaction. Further, because we conclude that the

trial court properly granted summary judgment as to Lynd’s constitutional-lien

claims based on Cox’s uncontroverted evidence that she never owned the real

property and that the mobile home was repossessed by the bank, we will

address Lynd’s issue on this subject as well. We need not address Lynd’s other

thirty issues because our resolution of these two issues is dispositive of all relief

that Lynd requests. See Tex. R. App. P. 47.1.

      A.     Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

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

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). When, as here, a trial court’s

order granting summary judgment does not specify the ground or grounds relied

on for its ruling, summary judgment will be affirmed on appeal if any of the

theories presented to the trial court and preserved for appellate review are

meritorious. Knott, 128 S.W.3d at 216; Star-Telegram, Inc. v. Doe, 915 S.W.2d

471, 473 (Tex. 1995).

                                         6
      A defendant is entitled to summary judgment on an affirmative defense if

the defendant conclusively proves all the elements of the affirmative defense.

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

denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish

this, the defendant-movant must present summary judgment evidence that

conclusively establishes each element of the affirmative defense. See Chau v.

Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

      B.    Accord and Satisfaction

      Accord and satisfaction is a defense that rests upon a new contract,

express or implied, in which the parties agree to the discharge of an existing

obligation in a manner other than originally agreed. Smith–Hamm, Inc. v. Equip.

Connection, 946 S.W.2d 458, 462 (Tex. App.—Houston [14th Dist.] 1997, no

writ). The accord is merely a new agreement whereby one party agrees to give

or perform and the other to accept something other than or different from what

she is, or considers herself to be, entitled. City of Houston v. First City, 827

S.W.2d 462, 472 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Satisfaction

is then the performance of the agreement. Melendez v. Padilla, 304 S.W.3d 850,

852–53 (Tex. App.—El Paso 2010, no pet.).

      Here, Cox provided summary judgment evidence via her affidavit and an

attached receipt that demonstrated that Lynd had entered into an agreement to

discharge Cox’s obligations to pay for the construction of the deck and patio

cover, storage building, and gutters in lieu of past rent owed by Lynd to Cox.

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See Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (holding that photocopy

of note attached to affidavit of holder, who swore it was true and correct copy,

was proper summary judgment evidence and was sufficient as matter of law to

prove status of owners and holders of note absent controverting summary

judgment proof).    To her motion, Cox further attached excerpts of Lynd’s

deposition testimony wherein he admitted that he had written and signed the

receipt and that the purpose of the receipt was to discharge Cox’s debt in relation

to these improvements to the mobile home so that Cox would forgive his past

rent arrearage and allow him to continue to live in the mobile home. See Tex. R.

Civ. P. 166a(c) (providing for trial court to rule on summary judgment motion

based on, among other evidence, deposition transcripts referenced or set forth in

motion or response).

      On appeal, Lynd argues that the receipt is a “false, untrue, and ingenuous

(sic)” document, but Lynd failed to specifically present this issue in his response

to Cox’s summary judgment motion at trial. See McConnell v. Southside Indep.

Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (holding that unless the issue is

specifically presented in the response, courts cannot look to the nonmovant’s

brief or evidence to determine whether that issue precludes summary judgment).

Thus, Lynd has failed to preserve this issue for review.

      In his summary judgment response at trial and at the hearing, Lynd did

argue that he entered the agreement to forego payment for his services in lieu of

past rent owed “[u]nder duress.” As evidence of duress, Lynd pointed to his own

                                         8
deposition testimony in which he testified that the reason he signed the receipt is

because Cox had said that if he did not, then she would force him to move out.

But the trial court properly determined that as a matter of law, Cox’s having

threatened eviction for Lynd’s failure to pay rent was her legal right, and duress

does not exist when a person threatens to do what she has the legal right to do.

See Matthews v. Matthews, 725 S.W.2d 275, 279 (Tex. App.—Houston [1st Dist.]

1986, writ ref’d n.r.e.) (reasoning that threatening to do what person has legal

right to do cannot form basis of duress).

      In fact, in his deposition testimony, Lynd agreed that Cox had the right to

force him to leave the premises. Viewing the evidence in light most favorable to

Lynd, we hold that Cox established, via competent summary judgment evidence,

that she and Lynd had entered into an agreement whereby she agreed to forgive

Lynd’s past rent debt in return for his forgiving any monies he was entitled to for

the construction he performed on the deck and patio cover, storage building, and

gutters. See First City, 827 S.W.2d at 472. In short, we conclude that the trial

court’s summary judgment as to Lynd’s breach of contract and quantum meruit

claims is supported by Cox’s affirmative defense of accord and satisfaction,

which she presented in her motion for summary judgment.

      C.    Constitutional Liens

      Woven throughout the initial thirty-two issues he briefed and again in his

lengthy reply brief, Lynd argues that Cox failed to provide competent summary



                                            9
judgment evidence that she did not own the property that he seeks judicial

foreclosure against based on constitutional liens.5

      Lynd argues that Cox perjured herself, failed to provide documents to

prove that she was not the owner of the property, and otherwise engaged in

“blatant word games and false statements to avoid responsibility.” It seems that

Lynd is arguing that Cox’s affidavit is insufficient as summary judgment evidence

because he perceives a contradiction in Cox’s statements regarding the property.

Cox averred that she never owned the real property and that although she once

owned the mobile home, it had been repossessed and thus she no longer owned

it. Lynd argues that Cox’s position that she never owned the real property and

her position that she once owned the mobile home that was later repossessed

are at odds with each other. We fail to see Lynd’s point. The real property that

the mobile home sat upon at one time is distinct from the mobile home itself.

      A defendant who conclusively negates at least one essential element of a

cause of action is entitled to summary judgment on that claim. Fernandez, 315

S.W.3d at 508. Once the defendant produces sufficient evidence to establish the

right to summary judgment, the burden shifts to the plaintiff to come forward with



      5
       In his briefing, Lynd provides what appear to be three perfected mechanic
and constitutional liens against the property involved in this suit. But these
documents are outside of the summary judgment evidence, and we can consider
only the material on file with the trial court as of the time the summary judgment
was granted. Brookshire v. Longhorn Chevrolet Co., 788 S.W.2d 209, 213 (Tex.
App.—Fort Worth 1990, no writ).

                                        10
competent controverting evidence that raises a fact issue. Van v. Peña, 990

S.W.2d 751, 753 (Tex. 1999).

      Here, Cox provided competent summary judgment evidence that she

never owned the real property that Lynd seeks to foreclose upon, and she also

provided competent summary judgment evidence that the mobile home that she

once owned that sat upon the real property had been repossessed.             This

evidence conclusively negated an essential element to Lynd’s constitutional-lien

claim, and Lynd failed to provide any controverting evidence. In fact, rather than

presenting evidence to the contrary, Lynd’s attorney admitted at the summary

judgment hearing that he was unaware that Cox no longer had any property

interest in the land or mobile home and that the reason that this claim had

“progressed . . . without any knowledge that [Cox] no longer [had] any property

interest” was because of her alleged “failure to notify” Lynd.    See Gibson v.

Bostick Roofing & Sheet Metal Co., 148 S.W.3d 482, 495 (Tex. App.—El Paso

2004, no pet.) (“While the lien could have attached to Brown’s equitable

ownership interest, the lien was extinguished when Brown defaulted on his

payments and Gibson repossessed the property.”); see also S. Tex. Truss Co.,

LLC v. Lara, No. 13-11-00199-CV, 2011 WL 3855464, at *7 (Tex. App.—Corpus

Christi Aug. 31, 2011, no pet.) (“where the contract for labor, materials or

construction is not made with the owner or his duly-authorized agent,” a lien may

not be fixed on his property.) (mem op., not designated for publication) (citing

Gibson, 148 S.W.3d at 494). We conclude that Cox conclusively negated an

                                       11
essential element of Lynd’s constitutional-lien claim and that the trial court did not

err by granting summary judgment as to this claim based on Cox’s motion.

                                  IV. CONCLUSION

      Because we conclude that Cox established that she was entitled to

summary judgment as to Lynd’s claims for breach of contract and quantum

meruit based on the affirmative defense of accord and satisfaction, and because

we hold that Cox conclusively negated an essential element of Lynd’s

constitutional-lien claim, we affirm the trial court’s judgment.


                                               PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DELIVERED: August 25, 2014




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