Reversed and Remanded and Memorandum Opinion filed May 15, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00260-CV


                NICOLE HILL A/K/A NICOLE HOLTZ, Appellant

                                           V.

                              TOOTSIES, INC., Appellee


                   On Appeal from the County Court at Law No. 4
                               Harris County, Texas
                          Trial Court Cause No. 969651


                   MEMORANDUM OPINION

       Appellee, Tootsies, Inc., sued appellant, Nicole Hill a/k/a Nicole Holtz, for breach
of contract based on her alleged failure to pay for merchandise purchased from Tootsies’s
store. Tootsies filed a motion for summary judgment, to which Hill responded. On
December 9, 2010, the trial court signed an order granting Tootsies’s motion for
summary judgment and awarding $12,510.62 in actual damages and pre- and post-
judgment interest but no attorney’s fees, despite Tootsies’s request. Hill timely filed a
motion for new trial, which the trial court denied by written order. In two appellate
issues, Hill challenges the summary judgment. We conclude the trial court erred by
granting summary judgment in favor of Tootsies. Accordingly, we reverse and remand.1

                                      STANDARD OF REVIEW

        A party moving for traditional summary judgment must establish there is no
genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex.
R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16
(Tex. 2003). A plaintiff moving for summary judgment must conclusively prove all
essential elements of its claim. Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60
(Tex. 1986)). We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We
take all evidence favorable to the nonmovant as true and indulge every reasonable
inference and resolve any doubts in her favor. Id.

                                              ANALYSIS

        To prevail on a breach-of-contract claim, a plaintiff must prove (1) a valid contract
existed between the plaintiff and the defendant, (2) the plaintiff tendered performance or
was excused from doing so, (3) the defendant breached the terms of the contract, and (4)
the plaintiff sustained damages as a result of the defendant’s breach. West v. Triple B
Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.] 2008, no pet.). In
its motion for summary judgment, Tootsies asserted that its summary-judgment evidence
established existence of a contract between Tootsies and Hill, she breached the contract
by failing to pay for merchandise purchased from Tootsies “in accordance with the terms
of the agreement,” and Tootsies incurred damages in the amount of $12,510.62. In
support, Tootsies presented only the affidavit of Norman Lewis, who averred as follows:


        1
           In a cross-issue, Tootsies challenges the trial court’s refusal to award attorney’s fees and
requests that we take judicial notice of reasonable and necessary attorney’s fees. This issue is rendered
moot by our conclusion that the trial court erred by granting Tootsies’s motion for summary judgment.
Nonetheless, we would lack jurisdiction to consider this issue because Tootsies seeks to alter the trial
court’s judgment but did not file a notice of appeal or argue any “just cause” for granting the requested
relief absent a notice of appeal. See Tex. R. App. P. 25.1(c).

                                                   2
              “My name is Norman Lewis. I am over the age of 18 years and fully
       competent to testify to the matter stated in this affidavit. I have personal
       knowledge of the facts and statements contained in this affidavit and each
       of them is true and correct.

              “I am the Chief Operating Officer and an authorized agent of
       [Tootsies].

               “[Hill] has made several retail purchases from [Tootsies]. However,
       [Hill] has failed to pay, in full, the amount owed to [Tootsies] for these
       purchases. [Tootsies] is owed the principal amount of $12,510.62 from
       [Hill].

The remainder of the affidavit pertained solely to attorney’s fees.

       Hill presents two stated issues: (1) because Lewis’s affidavit failed to establish
existence of a contract between Tootsies and Hill, a genuine issue of material fact exists;
and (2) Lewis’s affidavit was insufficient to support summary judgment “without being
supported by other factual statements in his affidavit.” Within the body of her argument,
Hill contends that Lewis failed to demonstrate his averments were based on personal
knowledge and the statements are conclusory.

       First, Hill complains Lewis failed to explain how he gained personal knowledge of
the averments and his assertion that he is Chief Operating Officer and an authorized agent
of Tootsies was insufficient to demonstrate personal knowledge.            However, this
complaint is a challenge to the form of Lewis’s affidavit, which Hill waived by failing to
obtain a ruling on the objection advanced in her summary-judgment response. See Butler
v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *2 (Tex. App.—
Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.) (citing Grand Prairie Indep. Sch.
Dist. v. Vaughn, 792 S.W.2d 944, 945 (Tex. 1990)).

       Next, Hill suggests Lewis’s averments are conclusory.          This complaint is a
challenge to an alleged substantive defect, which Hill may raise for the first time on
appeal. See Pico v. Capriccio Italian Restaurant, Inc., 209 S.W.3d 902, 909 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). “‘A conclusory statement is one that does not


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provide the underlying facts to support the conclusion.’” Hou-Tex, Inc. v. Landmark
Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (quoting
Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no
writ)).

          Although Hill’s contention is not exactly clear, we liberally construe it as an
argument that Lewis’s averments are conclusory relative to existence of a contract
because he did not include any facts, or reference or attach any documents, proving a
contract obligating Hill to pay for the merchandise. Alternatively, we construe Hill’s
overall complaint as an argument that Tootsies’s summary-judgment evidence is legally
insufficient to establish existence of a contract. Regardless of how Hill frames her
contention, we agree with the argument.

          Lewis’s assertion that Tootsies is “owed” a certain amount for merchandise
purchased by Hill did not establish existence of a contract. Lewis did not mention any
contract or reference or attach any documents proving a contract. Quite simply, Lewis
did not actually demonstrate the basis for Hill’s alleged obligation to pay for the
merchandise, much less what contract she purportedly breached by failing to pay. In fact,
in its petition and motion for summary judgment, Tootsies also provided no details
regarding the alleged contract.

          In its response to Hill’s motion for new trial, Tootsies asserted that it sued Hill for
“failure to pay her credit card bills.” However, in its motion for summary judgment,
Tootsies did not mention, or present evidence of, a credit-card agreement. To support her
motion for new trial, Hill attached her own affidavit, averring that she never owned a
Tootsies’ credit card. In her appellate brief, Hill notes that she may not rely on this
averment on appeal because this evidence was late filed. However, in its order denying
the motion for new trial, the trial court indicated it considered the evidence attached to
the motion. See Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.—Houston
[14th Dist.] 2006, no pet.) (recognizing that appellate court may consider late-filed
summary-judgment evidence, including evidence presented to support motion for new

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trial, as long as trial court affirmatively indicated in record it accepted or considered the
late-filed evidence). Regardless, because Tootsies failed to prove existence of a credit-
card agreement, the burden never shifted to Hill to raise a genuine issue of material fact
on existence of such an agreement. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
28 S.W.3d 22, 23 (Tex. 2000).

        In support of Hill’s motion for new trial, she also attached Tootsies’s responses to
Hill’s request for production, in which Tootsies answered “None” when requested to
produce “[a] copy of the signed contract between” Hill and Tootsies. Again, the burden
never shifted to Hill to negate existence of a signed contract. However, even if we
consider Tootsies’s answer to the discovery request, it failed to provide summary-
judgment evidence of any other documents allegedly establishing a written contract or
prove an oral contract.2

        In sum, because Tootsies failed to conclusively prove existence of a contract, the
trial court erred by granting its motion for summary judgment. Accordingly, we reverse
the trial court’s judgment and remand for further proceedings consistent with this
opinion.




                                                /s/       Charles W. Seymore
                                                          Justice


Panel consists of Justices Frost, Seymore, and Jamison.




        2
          Contrary to the statement in its response to the motion for new trial, Tootsies suggests in its
appellate brief that the suit is not based on a credit-card agreement but is based on “an account debt.”
Regardless, at this point, Tootsies has pleaded and moved for summary judgment on only a breach-of-
contract theory without establishing existence of a contract under which Hill was allegedly obligated to
pay for the merchandise, whether a credit-card agreement or other contract.
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