REVERSE and REMAND; and Opinion Filed June 17, 2014.




                                           S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                        No. 05-13-00660-CV

  STEPHEN CHU, DDS, MSD, PA D/B/A SMILE AGAIN ORTHODONTICS, Appellant
                                   V.
                         HENRY SCHEIN, Appellee

                       On Appeal from the 68th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-12496-C

                               MEMORANDUM OPINION
                           Before Justices Moseley, O’Neill, and FitzGerald
                                      Opinion by Justice O’Neill
       Appellant Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics appeals the

summary judgment granted in favor of appellee Henry Schein. In three issues, appellant argues

the trial court erred because (1) appellee offered no proof of a contract between the parties; (2)

appellee failed to bring forth evidence to support a sworn account; and (3) the trial court erred by

granting summary judgment based upon withdrawn deemed admissions. We reverse and remand

for further proceedings.

                                            Background

       Appellant ordered several shipments of dental supplies and equipment from appellee in

the summer of 2011. Appellee shipped the order to appellant’s business address and billed

account number 156587, identified as “Stephen Chu, DDS.” Appellant accepted the shipment

but refused to pay the balance due.
       Appellee filed suit against Stephen Chu, DDS, individually, and appellant Stephen Chu,

DDS, MSD, PA d/b/a Smile Again Orthodontics alleging sworn account, breach of contract, and

quantum meruit. Both defendants filed verified denials. Stephen Chu, DDS, individually, filed

for bankruptcy and was later nonsuited from the case. Appellee proceeded to seek judgment

against the entity Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics.

       Appellee filed a motion for summary judgment against Stephen Chu, DDS, MSD, PA

d/b/a Smile Again Orthodontics. Appellee argued he conclusively proved the essential elements

of his breach of contract claim and was therefore entitled to $17,391.12 in damages. Appellee

attached to his motion the affidavit of Christopher Aguilar with business records, the affidavit of

his attorney, and his first set of interrogatories and request for admissions. Appellant filed a

response arguing summary judgment was inappropriate because the only evidence attached to the

motion referenced Stephen Chu, DDS, and appellant presented no evidence supporting his claim

against Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics.

       The trial court granted summary judgment in favor of appellee on March 18, 2013 and

awarded $17,391.12 in damages and $6,250.00 in attorney’s fees. This appeal followed.

                                           Discussion

       To succeed on a traditional motion for summary judgment, the movant must establish

there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. W.

Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In reviewing a summary judgment, we

consider the evidence in the light most favorable to the nonmovant and resolve any doubt in its

favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

       To establish a breach of contract claim, appellee needed to prove (1) the existence of a

valid contract; (2) performance by plaintiff; (3) breach of the contract by defendant; and (4)




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damages sustained by plaintiff as a result of defendant’s breach. Henning v. OneWest Bank FSB,

405 S.W.3d 950, 969 (Tex. App.—Dallas 2013, no pet.).

         Both parties agree that “a contract for sale of goods may be made in any manner

sufficient to show agreement, including conduct by both parties which recognizes the existence

of such a contract.” TEX. BUS. & COM. CODE ANN. § 2.204(a) (West 2009). Or, alternatively,

under the Texas Business and Commercial Code, a buyer’s purchase order is construed as the

buyer’s invitation to the seller to accept its offer by shipping conforming goods, which results in

the formation of a contract. Id. § 2.206(a)(2) (West 2009).

         In support of appellee’s argument that a contract existed between the parties, appellee

relied on a series of invoices which included “a unique purchase order number and an order

date.”   All of the attached invoices were addressed to “Stephen Chu DDS.”             The “SHIP

TO/SOLD TO:” and “BILL TO:” listed the buyer as “Stephen Chu, DDS.” None of the invoices

were addressed to “Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics.”

         The only document referencing appellant was a copy of a check attached to a “Payment

Summary Inquiry.” The check was from “Stephen Chu DDS MSD, P.A.” to appellee for

$15,153.40 and dated October 9, 2009, which was over two years before the invoices subject to

the current suit and three years before appellee filed his breach of contract claim against

appellant. However, despite the check, the “Payment Summary Inquiry” still identified customer

number 156587 as Stephen Chu, rather than appellant.

         Despite appellee’s arguments that the invoices established a contract with appellant,

appellee is simply wrong. Appellee failed to bring forth any evidence linking the invoices to any

account held by appellant. Rather, the invoices show that Stephen Chu, DDS, individually,

received and accepted the shipment. While we acknowledge the one check from appellant to

appellee, a check dated three years before litigation in which appellee has not linked in any way

                                               –3–
to the current litigation does not conclusively establish the formation of a contract between

appellant and appellee. Because appellee failed to establish a contract existed between the two

parties, the trial court erred by granting summary judgment as a matter of law. We sustain

appellant’s first issue.

        In its second issue, appellant argues the trial court erred by granting summary judgment

in favor of appellee on his sworn account claim. However, appellee moved for summary

judgment only on his breach of contract claim. As such, the trial court could not have granted

summary judgment on appellee’s sworn account cause of action. See RR Publ’n & Prod. Co.,

Inc. v. Lewisville Indep. Sch. Dist., 917 S.W.2d 472, 473 (Tex. App.—Fort Worth 1996, no writ)

(noting that when a party moves for summary judgment on only one of several causes of action,

the trial court can grant summary judgment only on that one cause of action). Accordingly, we

need not address appellant’s second issue. See TEX. R. APP. P. 47.1.

        In its third issue, appellant claims the trial court erred by relying on withdrawn deemed

admissions to support appellee’s motion for summary judgment. However, there is nothing in

the record indicating the trial court relied on the withdrawn deemed admissions. Moreover,

appellee concedes in his brief, “It cannot be said that the trial court was unaware that the deemed

admissions had been withdrawn . . . .” As such, appellee has not relied on the withdrawn

deemed admissions as a reason to uphold his motion for summary judgment. Rather, he relied

on the invoices, which we have concluded are not evidence of a contract between appellant and

appellee. Accordingly, we overrule appellant’s third issue as moot.




                                               –4–
                                          Conclusion

       Having sustained appellant’s first issue, we reverse the trial court’s judgment and reverse

and remand for further proceedings.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O’NEILL
                                                    JUSTICE

130660F.P05




                                              –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

STEPHEN CHU, DDS, MSD, PA D/B/A                        On Appeal from the 68th Judicial District
SMILE AGAIN ORTHODONTICS,                              Court, Dallas County, Texas
Appellant                                              Trial Court Cause No. DC-12-12496-C.
                                                       Opinion delivered by Justice O’Neill.
No. 05-13-00660-CV         V.                          Justices Moseley and FitzGerald
                                                       participating.
HENRY SCHEIN, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 17th day of June, 2014.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE




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