




02-10-373-CV







 







 











COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH




 
 
NO. 02-10-00373-CV 
 
 




Law Office of David E. Williams, II, P.C.


 


APPELLANT




 
V.
 




Fort Worth Texas Magazine Venture, LP


 


APPELLEE 




 
 
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FROM THE 153rd
District Court OF Tarrant COUNTY
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MEMORANDUM
OPINION[1]
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I.  Introduction
          Appellee
Fort Worth Texas Magazine Venture, LP (FW Magazine) sued Appellant Law Office
of David E. Williams, II, P.C. alleging alternative claims for breach of
contract, suit on sworn account, and quantum meruit.  FW Magazine claimed that
it and Appellant had entered into an advertising agreement whereby FW Magazine
agreed to run a full-page profile advertisement for Appellant in the December
2007 issue of Fort Worth, Texas Magazine and in the 2007 “Top Attorney”
issue of the magazine.  FW Magazine attached a copy of the advertising
agreement to its original petition.  FW Magazine claimed that it billed
Appellee the agreed-upon price of $3,000 but that Appellant did not pay the
invoices.  Consequently, FW Magazine brought the instant suit and eventually filed
a traditional motion for summary judgment on its claims for breach of contract,
suit on sworn account, and quantum meruit.  The trial court granted summary
judgment for FW Magazine on each of its claims and awarded FW Magazine actual
damages in the amount of $3,000 and attorney’s fees in the amount of $5,000. 
Appellant perfected this appeal, complaining in its sole issue that the trial
court erred by granting summary judgment for FW Magazine.  For the reasons set
forth below, we will affirm the trial court’s summary judgment for FW Magazine;
we will reverse the trial court’s summary judgment on Appellant’s counterclaim
and remand in part for adjudication of Appellant’s counterclaim.
II.  Standard of Review
          We
review the trial court’s grant of summary judgment de novo.  Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004).  To prevail
on a traditional motion for summary judgment, the movant must show that there
is no genuine issue as to any material fact and that it is entitled to judgment
as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985); Aguirre v. Vasquez, 225 S.W.3d 744, 750
(Tex. App.––Houston [14th Dist.] 2007, no pet.).  We take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.  Joe, 145 S.W.3d at 157; Aguirre,
225 S.W.3d at 750.  We must affirm the summary judgment if any one of the
movant’s theories has merit.  See W. Invs., Inc. v. Urena, 162 S.W.3d
547, 550 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 216 (Tex. 2003).
III.  Summary Judgment Proper on Breach of Contract
To
recover for breach of contract, FW Magazine was required to show that there was
no genuine issue of fact and that as a matter of law it had proven (1) the
existence of a valid contract, (2) performance or tendered performance by FW
Magazine, (3) breach of the contract by Appellant, and (4) damages to FW
Magazine resulting from that breach.  See, e.g., Mercier v. Sw. Bell Yellow
Pages, Inc., 214 S.W.3d 770, 773 (Tex. App.—Corpus Christi 2007, no pet.)
(upholding summary judgment for Southwestern Bell on its breach of contract
claim against Mercier for nonpayment of advertisement).  As evidence in support
of its motion for summary judgment, FW Magazine provided copies of the advertising
agreement executed by Appellant.  The advertising agreement indicates that it
“is an agreement for the purchase of advertising space in Fort Worth, Texas
magazine between its Publisher and the Advertiser . . . placing this order. 
Advertiser acknowledges receipt of this agreement and the Publisher’s current rate
card . . . .”  The agreement also indicates that the $3,000 amount owed by
Appellant would be split into two payments of $1,500—one payment in January
2008 and one payment in February 2008.  FW Magazine’s summary judgment evidence
included copies of the advertisement that it ran featuring Appellant in two
2007 editions of the magazine, invoices that it mailed to Appellant, and affidavit
testimony that there remained an unpaid balance of $3,000.  Viewing this summary
judgment evidence in the light most favorable to Appellant, it conclusively
establishes Appellee’s entitlement to judgment as a matter of law on its breach
of contract claim.  We overrule the portion of Appellant’s sole issue
challenging the summary judgment on this basis.
Appellant’s
response to FW Magazine’s motion for summary judgment does not point to any
controverting summary judgment evidence but instead claims that Appellant had
no relationship with and signed no contract with Appellee Fort Worth Texas
Magazine Venture, LP; Appellant claims the agreement it signed was instead with
Fort Worth, Texas Magazine.  Appellant’s summary judgment response acknowledges
that Fort Worth, Texas Magazine was the assumed name of Magnolia Media Group,
Ltd. and explains that Magnolia Media’s assumed name certificate expired and
that Appellant is now the owner of that assumed name.  Consequently, Appellant argues
that FW Magazine does not have standing to sue Appellant because it was not a
named party to the advertising agreement and that Fort Worth, Texas Magazine (whom
Appellant claims it contracted with) cannot sue Appellant because the assumed
name certificate for that name has expired.  See Tex. Bus. & Com.
Code Ann. § 71.201 (West  2009) (stating that a person’s failure to comply
with chapter 71 does not impair validity of any contract, but the person may
not maintain an action arising out of a contract in which an assumed name was
used until an original, new, or renewed certificate has been filed).
Although
by virtue of section 71.201 capacity may not exist for prosecution of a suit in
the assumed name of Fort Worth, Texas Magazine, that fact does not affect Appellee’s
standing to bring suit, which it did.  See, e.g., Nootsie, Ltd. v.
Williamson County Appraisal Dist., 925 S.W.2d 659, 661–62 (Tex. 1996)
(explaining that a party has standing when it is personally aggrieved and has
capacity when it has the legal authority to act).  Moreover, the trial court
conducted a hearing on, and denied, Appellant’s plea to the jurisdiction
challenging FW Magazine’s standing; the parties agree that no reporter’s record
from that hearing exists.  Consequently, we must presume that the evidence
presented at that hearing supported the trial court’s ruling.[2] 
See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); see also
Gonzalez v. Wells Fargo Bank, NA, No. 05-09-01322-CV, 2011 WL 1549558, at
*1 (Tex. App.—Dallas Apr. 26, 2011, no pet.) (mem. op.).  We thus overrule the
portion of Appellant’s sole issue claiming that FW Magazine lacked standing to
obtain a summary judgment. 
Because
we conclude that summary judgment was appropriate on FW Magazine’s breach of
contract claim, we need not address whether summary judgment was proper on
sworn account or quantum meruit grounds.  See Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989); Jones v. Ray Ins. Agency, 59 S.W.3d 739,
744 (Tex. App.—Corpus Christi 2001), pet. denied, 92 S.W.3d 530 (Tex.
2002) (per curiam).
IV.  Brown’s Affidavit Was Not Defective
In a
portion of Appellant’s sole issue, it claims that the summary judgment
affidavit of Hal Brown, FW Magazine’s president, is defective.  Specifically,
Appellant complains that Brown’s affidavit is not based on personal knowledge,
contains hearsay, and is conclusory and that Brown was not a “qualified
witness” under Texas Rule of Evidence 803(6) so that the documents attached to
his affidavit do not fall within the business records exception to the hearsay
rule.  Appellant did not obtain a ruling on his objections to the Brown
affidavit, so all defects of form are waived.  See Tex. R. Civ. P.
166a(f) (providing that “[d]efects in the form of affidavits . . . will not be
grounds for reversal unless specifically pointed out by objection by an
opposing party with opportunity, but refusal, to amend”); see also, e.g.,
Grand Prairie ISD v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (lack of
personal knowledge objection must be raised and ruled on in trial court); Stewart
v. Sanmina Tex. L.P., 156 S.W.3d 198, 206–07 (Tex. App.—Dallas 2005, no
pet.) (holding hearsay objection asserts defect in form that must be ruled on
by trial court).  Objections that an affidavit fails to comply with the
business records exception to the hearsay rule likewise must be preserved in
the trial court via an objection and a ruling on the objection by the trial
court.  See Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 (Tex.
App.––Dallas 2008, no pet.).  Thus, the only alleged defect in Brown’s
affidavit that is preserved for our review is whether the affidavit is
conclusory.
Appellant
claims that Brown’s affidavit is conclusory because it does not show he was
employed by Fort Worth, Texas Magazine––the name appearing on Appellant’s
advertising agreement.  We previously addressed this contention by Appellant; by
its terms, Appellant’s advertising agreement is with the publisher of FW
Magazine, not with Fort Worth, Texas Magazine, and Brown’s affidavit swears
that the advertising agreement was between Appellant and Appellee FW Magazine.
We
overrule the portion of Appellant’s sole issue claiming that Brown’s affidavit
was substantively defective.
V.  Summary Judgment Proper on Attorney’s Fees
In
another portion of his sole issue, Appellant claims that FW Magazine was not entitled
to summary judgment on its claim for attorney’s fees because Appellant’s
counsel filed a controverting affidavit.  Having prevailed and conclusively
established $3,000 in damages on its claim for breach of contract, FW Magazine was
entitled to recover reasonable attorney’s fees and costs pursuant to chapter 38
of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac.
& Rem. Code Ann. § 38.001(8) (West 2008); Green Int’l, Inc. v. Solis,
951 S.W.2d 384, 390 (Tex. 1997) (holding that party prevailing and recovering damages
is entitled to attorney’s fees under section 38.001(8)).  To warrant recovery
under section 38.001 of the Texas Civil Practice and Remedies Code, attorney’s fees
must be “reasonable.”  See Tex. Civ. Prac. & Rem. Code Ann. §
38.001.  Well-settled law recognizes that an uncontroverted affidavit of the
attorney representing a claimant constitutes expert testimony on reasonableness
that will support an award of attorney’s fees in a summary judgment proceeding.
See Tesoro Petroleum Corp. v. Coastal Ref. & Mktg., Inc., 754 S.W.2d
764, 767 (Tex. App.—Houston [1st Dist.] 1988, writ denied).  
When
an attorney’s-fees-summary-judgment affidavit of the attorney representing a
claimant is properly controverted by an opposing attorney, a fact issue is
raised on reasonableness precluding summary judgment on the attorney’s fees
issue.  See, e.g., Ragsdale v. Progressive Voters League, 801 S.W.2d
880, 881–82 (Tex. 1990); Great Am. Reserve Ins. Co. v. Britton, 406
S.W.2d 901, 907 (Tex. 1966); Am. 10-Minute Oil Change, Inc. v. Metro. Nat’l
Bank—Farmers Branch, 783 S.W.2d 598, 602 (Tex. App.—Dallas 1989, no writ). 
To constitute a proper controverting summary judgment affidavit on the issue of
attorney’s fees, the affidavit must be made by an attorney, be based on
personal knowledge, set forth facts which would be admissible in evidence, and
show the affiant’s competence.  Cammack the Cook, L.L.C. v. Eastburn,
296 S.W.3d 884, 894–95 (Tex. App.—Texarkana 2009, pet. denied); Querner
Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 468–69 (Tex.
App.—San Antonio 1988, no writ) (holding controverting affidavit did not create
fact issue on attorney’s fees because affiant was not an attorney and affidavit
did not show that affiant was competent to give opinion testimony about
attorneys’ fees).  Conclusory statements or statements based purely on opinion
are not competent summary judgment evidence.  Cammack the Cook, 296
S.W.3d at 894.
Here,
the affidavit submitted by Appellant in an effort to controvert FW Magazine’s
attorney’s-fees-summary-judgment affidavit simply states, “It is my opinion
that the fee charged by [FW Magazine’s attorney] is neither reasonable nor
necessary, as he seeks payment for time spent unnecessarily.”  The affidavit
goes on to allege that FW Magazine’s attorney billed for time for a hearing
that had not occurred and that this billing was not segregated from necessary
billing.  But the summary judgment affidavit of FW Magazine’s attorney does not
indicate time was billed for a hearing; the affidavit explains the work
performed, the total time expended, and the hourly rate charged.  Additionally,
segregation is required only between time expended on a claim that allows
recovery of attorney’s fees and claims that do not allow recovery of attorney’s
fees.  See, e.g., Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73
(Tex. 1997).  Here, segregation was not required because attorney’s fees are
recoverable on FW Magazine’s claims for breach of contract, quantum meruit, and
sworn account.  See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(1), (7),
(8); Beard Family P’ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839,
850 (Tex. App.––Austin 2003, no pet.) (explaining segregation not required
between breach of contract and quantum meruit claims arising from same
transaction because claims were so interrelated that they essentially required
the same proof); Weitzul Constr., Inc. v. Outdoor Environs, 849 S.W.2d
359, 366 (Tex. App.––Dallas 1993, writ denied) (attorney’s fees recoverable on
breach of contract and quantum meruit).  Based on these facts, Appellant’s
attempted controverting attorney’s fees affidavit does not provide any factual
basis for its underlying opinion that FW Magazine’s requested attorney’s fees
are unreasonable or unnecessary.  See Cammack the Cook, 296 S.W.3d at
895.  Because Appellant’s affidavit does not provide any basis for the
statement made, the statement is simply conclusory.  See id.  
We
overrule the portion of Appellant’s sole issue challenging the summary judgment
granted to FW Magazine on its claim for attorney’s fees in the amount of
$5,000.
VI.  Summary Judgment Improper on Appellant’s Counterclaim
Appellant
filed an “Original Counterclaim” alleging in the alternative that FW Magazine
had engaged in unreasonable debt collection practices.  FW Magazine’s motion
for summary judgment does not mention this counterclaim or seek summary
judgment on it.  “[A] motion for summary judgment shall state the specific
grounds therefor.”  Tex. R. Civ. P. 166a(c); McConnell v. Southside ISD,
858 S.W.2d 337, 341 (Tex. 1993) (holding that “a motion for summary judgment
must itself expressly present the grounds upon which it is made.  A motion must
stand or fall on the grounds expressly presented in the motion.”).  When a
motion for summary judgment asserts grounds A and B, it cannot be upheld on
grounds C and D, which were not asserted, even if the summary judgment proof
supports them.  McConnell, 858 S.W.2d at 342. Here, FW Magazine did not
move for summary judgment on Appellant’s counterclaim.  Accordingly, the trial
court erred by granting summary judgment on Appellant’s counterclaim.  See
Cammack the Cook, 296 S.W.3d at 894 (reversing summary judgment granted on nonmovant’s
counterclaims because summary judgment on counterclaims not sought in summary
judgment motion).  We sustain the portion of Appellant’s issue challenging the
trial court’s summary judgment on Appellant’s counterclaim.
VII.  Conclusion
          We
affirm the trial court’s summary judgment for FW Magazine, including the attorney’s
fees award.  Because Appellant’s counterclaim was not properly before the trial
court by virtue of FW Magazine’s summary judgment motion, we reverse and remand
in part for further proceedings consistent with this opinion.
 
SUE WALKER
JUSTICE
 
PANEL: 
WALKER, MCCOY, and MEIER, JJ.
 
DELIVERED: 
July 7, 2011




 




[1]See Tex. R. App. P. 47.4.


[2]Appellant does not
challenge the trial court’s denial of Appellant’s plea to the jurisdiction in a
separate issue; Appellant simply argues under its sole issue challenging the
summary judgment granted for FW Magazine that it did not have standing.


