                                         NO. 12-14-00134-CV

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

AMERICAN IDOL, GENERAL, LP                                 §       APPEAL FROM THE 188TH
D/B/A THE REO, AND RANDY
HANSON A/K/A RANDALL HANSON,
APPELLANTS
                                                           §       JUDICIAL DISTRICT COURT
V.

PITHER PLUMBING CO., INC.,
APPELLEE                                                   §       GREGG COUNTY, TEXAS

                                         MEMORANDUM OPINION
         American Idol General, LP and Randy Hanson appeal the trial court’s summary judgment
rendered in favor of Pither Plumbing Co., Inc. In one issue, Appellants argue that the trial court
erred in granting summary judgment in Pither’s favor and awarding it damages and attorney’s
fees. We reverse and remand.


                                                  BACKGROUND
         On September 14, 2012, Pither filed the instant lawsuit against Appellants alleging that
they were liable to him for breach of contract based on their failure to pay for plumbing services
performed by Pither at the Reo Palm Isle nightclub. Sometime later, Pither took Hanson’s
deposition. Subsequently, Pither filed its Second Motion for Summary Judgment. Appellants
responded, and in support, relied on an affidavit made by Hanson. Pither filed a reply, in which
it moved to strike Hanson’s affidavit under the “sham affidavit” doctrine1 because it contained

          1
            The “sham affidavit” doctrine has not been universally adopted by the intermediate appellate courts of this
state, nor has it been embraced by the Texas Supreme Court. Under the “sham affidavit” doctrine, a party cannot
file an affidavit to contradict his own deposition testimony without any explanation for the change in the testimony,
for the purpose of creating a fact issue to avoid summary judgment. See Farroux v. Denny’s Rests., Inc., 962
S.W.2d 108, 111 (Tex. App.–Houston [1st Dist.] 1997, no pet.). If a party's own affidavit contradicts his earlier
testimony, the affidavit must explain the reason for the change. See id. Without an explanation of the change in the
numerous statements that contradicted his prior deposition testimony. Appellants filed a sur
reply, in which they argued that the trial court should decline to apply the “sham affidavit”
doctrine.
         On February 6, 2014, the trial court conducted a hearing on Pither’s motion, and at the
conclusion of the hearing, it took the matter under advisement. On February 21, 2014, the trial
court signed an order granting Pither’s motion on its claims for breach of contract, suit on a
sworn account, and quantum meruit, and awarded Pither $17,169.48 in damages. The trial court
also awarded Pither $7,847.00 in attorney’s fees. This appeal followed.


                                            SUMMARY JUDGMENT
         In their sole issue, Appellants argue that the trial court erred in granting summary
judgment for Pither and awarding it damages and attorney’s fees.
Standard of Review
         We review de novo the trial court's determination on a party’s motion for summary
judgment. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The
standard of review for a traditional summary judgment motion pursuant to Texas Rule of Civil
Procedure 166a(c) is threefold: (1) the movant must show there is no genuine issue of material
fact and it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed
material fact issue precluding summary judgment, the court must take as true evidence favorable
to the nonmovant; and (3) the court must indulge every reasonable inference from the evidence
in favor of the nonmovant and resolve any doubts in the nonmovant's favor. See TEX. R. CIV. P.
166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); Palestine
Herald–Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.–Tyler 2008, pet. denied). Once
the movant has established a right to summary judgment, the burden shifts to the nonmovant to
respond to the motion and present to the trial court any issues that would preclude summary
judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.
1979). The scope of our review is limited to the summary judgment record upon which the trial
court’s ruling was based. Chappell v. Allen, 414 S.W.3d 316, 321 (Tex. App.–El Paso 2013, no
pet.).

testimony, the court assumes the sole purpose of the affidavit was to avoid summary judgment, thereby presenting
merely a “sham” fact issue. See id. This court has not yet applied the “sham affidavit” doctrine under facts similar
to those of the instant case.


                                                         2
Hanson’s Affidavit
       Before we address the propriety of the trial court’s granting summary judgment, we must
determine whether Hanson’s affidavit is part of the summary judgment record on which that
ruling was based. Defects in the substance of a summary judgment affidavit may be addressed
by an appellate court without regard to whether the matter was addressed in the trial court. See
Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.–Dallas 2014, pet. denied). But with regard to
a defect in form of a summary judgment affidavit, a party is required to object and obtain a
ruling on that objection to preserve error. See id. Whether an affidavit constitutes a “sham
affidavit” is a contention that there is a defect in form. See Wolfe v. Devon Energy Prod. Co.,
LP, 382 S.W.3d 434, 452 (Tex. App.–Waco 2012, pet. denied) (citing Hogan v. J. Higgins
Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.–Dallas 2006, no pet.)).
       In the instant case, Pither objected to Hanson’s affidavit as a “sham” and moved to strike
it. However, Pither never obtained a ruling on its motion to strike. But Pither urges this court to
imply a ruling by the trial court striking the affidavit. See, e.g., Frazier v. Yu, 987 S.W.2d 607,
610 (Tex. App.–Fort Worth 1999, pet. denied).
       In Frazier, the Fort Worth court of appeals held that because the trial court granted
summary judgment and “stated that it reviewed all competent summary judgment evidence, this
create[d] an inference that the court implicitly sustained [the defendant's] objections” to the
summary judgment evidence. Id. Thus, the court concluded that the defendant’s objections had
been preserved by an implicit ruling. See id.; see also TEX. R. APP. P. 33.1(a)(2)(A). But the
Fort Worth court of appeals has also held that when a trial court grants summary judgment, this
“creates an inference that it implicitly reviewed and overruled [the defendant’s] objections” to
the summary judgment evidence. Blum v. Julian, 977 S.W.2d 819, 823–24 (Tex. App.–Fort
Worth 1998, no pet.).
       The San Antonio court recognized the divergence in the Fort Worth court’s holdings on
this issue, and elaborated on the subject as follows:


       [A] ruling on a motion for summary judgment and objections to summary judgment evidence are
       not alternatives; nor are they concomitants. Neither implies a ruling––or any particular ruling––on
       the other. In short, a trial court's ruling on an objection to summary judgment evidence is not
       implicit in its ruling on the motion for summary judgment; a ruling on an objection is simply not
       “capable of being understood” from the ruling on the motion for summary judgment. We
       therefore reject the reasoning in Blum and Frazier. We instead align ourselves with the
       Fourteenth Court of Appeals. See Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.–



                                                       3
        Houston [14th Dist.] 2000, [pet. denied]) (“Unlike other courts faced with similar situations, we
        cannot infer from the record in this case that the trial court implicitly overruled or implicitly
        sustained appellants' objections.”).


Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.–San Antonio 2000, no pet.).
        We agree that the granting of a summary judgment motion, without more, does not
provide an implicit ruling that either sustains or overrules objections to the summary judgment
evidence. See also Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 783 (Tex. App.–Dallas
2013, no pet.); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex. App.–Waco 2002, no pet.).
Moreover, we agree with the following statement from Dolcefino concerning the “better
practice” for trial courts when ruling on summary judgment motions and objections to summary
judgment evidence:


        We believe the better practice is for the trial court to disclose, in writing, its rulings on all
        objections to summary judgment evidence at or before the time it enters the order granting or
        denying summary judgment. Practitioners should facilitate this procedure by incorporating all
        parties' objections to summary-judgment evidence in proposed orders granting or denying
        summary judgment and including a “Mother Hubbard” recitation to encompass any objections not
        otherwise addressed in the proposed orders . . . . In any context, however, it is incumbent upon
        the party asserting objections to obtain a written ruling at, before, or very near the time the trial
        court rules on the motion for summary judgment or risk waiver. See TEX. R. APP. P. 33.1(a).


Dolcefino, 19 S.W.3d at 926; Albin, 97 S.W.3d at 663; see Mitchell v. Baylor Univ. Med. Ctr.,
109 S.W.3d 838, 842 (Tex. App.–Dallas 2003, no pet.) (“Evidence that has been objected to
remains part of the summary judgment record unless an order sustaining the objection is reduced
to writing, signed, and entered of record.”). But the “better practice” described in Dolcefino was
not followed in the instant case, and we cannot conclude from the record before us that the trial
court implicitly ruled on Pither’s objections.2 Thus, we hold that Pither failed to preserve error
on its objection to Hanson’s affidavit. Therefore, the affidavit is subject to consideration as part
of the summary judgment record.3


        2
           To the contrary, the trial court’s order granting summary judgment states that the trial court considered
Appellant’s response to Pither’s motion for summary judgment. Appellant’s response relied, in part, on Hanson’s
affidavit.
           3
             Pither further argues that in our de novo review of the trial court’s summary judgment, this court may
independently disregard Hanson’s affidavit under the “sham affidavit” doctrine. We disagree. We may address
defects in the substance of a summary judgment affidavit without regard to whether such matters were addressed by
the trial court. See Brown, 145 S.W.3d at 751. But we may not address alleged defects in form where the party has
failed to preserve its objection thereon. See Wolfe, 382 S.W.3d at 452; Hogan, 197 S.W.3d at 883.


                                                         4
Issues of Fact Precluding Summary Judgment
       In its motion, Pither made a prima facie showing that it was entitled to judgment as a
matter of law on its claims for breach of contract, suit on a sworn account, and, alternatively,
quantum meruit. Pither concedes in its brief that if Hanson’s affidavit is admitted, summary
judgment is not proper. Nonetheless, we must consider whether the summary judgment record
contains evidence indicating that there is a genuine issue of material fact.
       Breach of Contract
       The elements for breach of contract are (1) the existence of a valid contract, (2) the
plaintiff's performance or tendered performance, (3) the defendant's breach of the contract, and
(4) damages as a result of the breach. Paragon Gen. Contractors, Inc. v. Larco Const., Inc.,
227 S.W.3d 876, 882 (Tex. App.–Dallas 2007, no pet.). The following elements are required for
the formation of a valid and binding contract: (1) an offer; (2) acceptance in strict compliance
with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and
(5) execution and delivery of the contract with the intent that it be mutual and binding.
Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.–Tyler 2004, pet. denied). Consideration
is also a fundamental element of every valid contract. Id. “In determining the existence of an
oral contract, the court looks to the communications between the parties and to the acts and
circumstances surrounding those communications.” Id.
       In its motion for summary judgment, Pither argued that it had an oral agreement with
Appellants whereby it would provide plumbing services and Appellants would pay for those
services. Specifically, Pither contended as follows:


       These agreements primarily arose based on conversations between agents for [Pither] and agents
       for [Appellants]. C.J. Broers, an employee of the Reo, and Randy Hanson would call to have
       work done at The Reo, for which [Pither] would provide an estimate. Subsequently, once the
       work was completed, [Pither] would send the invoices to [Appellants], giving Randy Hanson or
       anyone else associated with The Reo the opportunity to dispute the charges. Finally, Randy
       Hanson received monthly reports regarding expenses and income of the business and payments
       made by The Reo to its creditors and never inquired or contested the invoices sent by [Pither].


To the contrary, Hanson states in his affidavit as follows:
                 The club commonly known as[] “The Reo” was a tenant of Max Singleton during the
       relevant time period.

               American Idol General, LP has never owned the property called “the Reo Palm Isle
       Club” located at 4716 W. Loop 281, Longview, Texas.




                                                     5
                   American Idol General, LP did not operate the club known as “The Reo” during the
         relevant time period from January 18, 2010 through January 12, 2012.

                 American Idol General, LP was not affiliated with the property called “The Reo Palm Isle
         Club” located at 4716 W. Loop 281, Longview, Texas.

                  American Idol General, LP had no employees during the relevant time period from
         January 18, 2010 through January 12, 2012.

               American Idol General, LP existed solely to hold the liquor license for the club
         commonly known as “The Reo.”

                 ....

                 American Idol General, LP never received services from Pither Plumbing Co., Inc. It
         could not have requested or received services[] as it only held a liquor license.

                 C.J. BROERS was not an employee of American Idol General, LP.

                 C.J. BROERS had no authority to enter into construction contracts on behalf of American
         Idol General, L.P.

                  American Idol General, LP, nor any agent of American Idol General, LP, including
         RANDALL HANSON or C.J. BROERS, ever entered into an agreement with Pither Plumbing
         Co., Inc. regarding plumbing services that were purported to be performed at “Reo Palm Isle
         Club” [] located at 4716 W. Loop 281, Longview, Texas.

                  American Idol General, LP never received invoices from [Pither] regarding the plumbing
         services that were purported to be performed at “Reo Palm Isle Club”[] located at 4716 W. Loop
         281, Longview, Texas.

                 ....

                 BRKA, INC[.] is a contracting company, and C.J. Broers was an agent of BKRA, Inc.


         Having taken as true the statements made in Hanson’s affidavit, having indulged every
reasonable inference from the evidence in Appellants’ favor, and having resolved any doubts in
Appellants’ favor, we conclude that there is a genuine issue of material fact concerning whether
there existed a valid contract between the parties.
         Suit on a Sworn Account
         The elements necessary to prove Pither’s suit on sworn account against Appellants are (1)
a sale and delivery of goods or services, (2) the charges on the account are just, i.e., the prices are
charged in accordance with an agreement or, in the absence of an agreement, are the usual,
customary and reasonable prices for that good or service, and (3) the amount remains unpaid.
See Andrews v. E. Texas Med. Ctr.-Athens, 885 S.W.2d 264, 266 (Tex. App.–Tyler 1994, no
writ).



                                                        6
        In the instant case, Pither argued in its motion for summary judgment that on certain
specified dates between January 18, 2010, and January 12, 2012, it rendered professional
plumbing services and furnished materials in connection therewith for and to “The Reo.” Pither
further argued that, typically, Hanson or Broers would call and ask for work to be completed, the
plumbers would complete the work, and Pither would send the invoices for the work done.
However, as set forth previously, Hanson’s affidavit states that American Idol did not operate the
club known as “The Reo” during the relevant time period and was not affiliated with the property
called “The Reo Palm Isle Club.”             His affidavit further states that American Idol had no
employees during this time period and existed solely to hold the liquor license for “The Reo.”
Finally, Hanson states in his affidavit that American Idol never received services from Pither,
and neither American Idol, nor any agent thereof, including Hanson or Broers, entered into an
agreement with Pither regarding plumbing services that were purportedly performed at “Reo
Palm Isle Club.”
        Having considered Hanson’s statements in his affidavit in the requisite manner, we
conclude that there is a genuine issue of material fact concerning whether there was a sale and
delivery of plumbing services to an entity connected to Appellants.4
        Quantum Meruit
        Quantum meruit is an equitable remedy based upon an implied promise to pay for
benefits received. Wohlfahrt v. Holloway, 172 S.W.3d 630, 634 (Tex. App.–Houston [14th
Dist.] 2005, pet. denied); Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41
(Tex. 1992); see Myrex Indus., Inc. v. Ortolon, 126 S.W.3d 548, 550 (Tex. App.–Houston [14th
Dist.] 2003, pet. denied). In order to prove quantum meruit, a party must show 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 and used and enjoyed
by him; (4) under such circumstances as reasonably 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. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990);
Clear Lake City Water Auth. v. Kirby Lake Dev., Ltd., 123 S.W.3d 735, 753 (Tex. App.–
Houston [14th Dist.] 2003, pet. denied).

        4
          Appellants also argue that Pither failed to properly plead this issue. Because we have determined that
Appellants’ summary judgment evidence creates a genuine issue of material fact, we do not address their argument
concerning Pither’s allegedly inadequate pleadings.


                                                       7
         Here, Pither argued in its motion for summary judgment that it rendered valuable services
to Appellants in the form of plumbing services performed at “The Reo.” Having considered
Hanson’s aforementioned statements in his affidavit in the requisite manner, we conclude that
there is a genuine issue of material fact concerning whether Pither rendered valuable plumbing
services to an entity connected to Appellants. Moreover, Hanson’s affidavit creates a genuine
issue of material fact with regard to whether Appellants accepted any such services.5
Summation
         We have determined that Appellants’ summary judgment evidence raised a genuine issue
of material fact with regard to one or more elements of each of the causes of action upon which
Pither sought summary judgment. Therefore, we hold that the trial court erred in rendering
summary judgment in Pither’s favor. Furthermore, because the trial court erred in granting
summary judgment on liability, it further erred in awarding damages and attorney’s fees to
Pither. Appellants’ sole issue is sustained.


                                                   DISPOSITION
         Having sustained Appellants’ sole issue, we reverse the trial court’s judgment and
remand the matter to the trial court for further proceedings consistent with this opinion.


                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered April 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




         5
             See n.4.


                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2015


                                         NO. 12-14-00134-CV


                AMERICAN IDOL, GENERAL, LP D/B/A THE REO, AND
                   RANDY HANSON A/K/A RANDALL HANSON,
                                  Appellants
                                     V.
                         PITHER PLUMBING CO., INC.,
                                  Appellee


                                Appeal from the 188th District Court
                        of Gregg County, Texas (Tr.Ct.No. 2012-1842-A)

                       THIS CAUSE came to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and
DECREED by this court that the judgment be reversed and the cause remanded to the trial
court for further proceedings and that all costs of this appeal are hereby adjudged against the
Appellee, PITHER PLUMBING CO., INC., in accordance with the opinion of this court; and
that this decision be certified to the court below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
