                            NUMBER 13-14-00092-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

DEAN A. SMITH,                                                             Appellant,


                                           v.

TERRY DELOOZE,                                                             Appellee.


                    On appeal from the 200th District Court
                          of Travis County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza

      Appellant, Dean A. Smith, appeals from a summary judgment granted in favor of

appellee, Terry DeLooze. By two issues, Smith contends that the trial court erred by: (1)

improperly striking portions of his affidavit; and (2) granting summary judgment in
DeLooze’s favor. We affirm.

                                            I. BACKGROUND1

        DeLooze is the former owner of an upscale grocery business known as FMKT

and/or the Marketplace and Deli of Lakeway (the “Lakeway Market”) located near Austin,

Texas. Smith and DeLooze entered into a brokerage agreement (“the Agreement”) on

November 20, 2008.           The Agreement granted Smith the exclusive right to sell the

Lakeway Market for one year. The Agreement automatically terminated on November

20, 2009.

        It is undisputed that in late December 2009, Amirali Makanojia signed a contract

to purchase the Lakeway Market. The parties dispute how and when Makanojia first

became interested in purchasing the Lakeway Market. DeLooze contends that Steve

Keys, a commercial developer, and Keys’s business partner, Mohit Mehra, brought

Makanojia to the Lakeway Market, where Makanojia met DeLooze for the first time in

December 2009. Smith contends that Makanojia first expressed an interest in purchasing

the Lakeway Market in October 2009, before the Agreement expired.

        Smith contends that he is entitled to a commission under the Agreement. DeLooze

filed a petition for declaratory judgment, seeking a declaration that he did not owe Smith

a commission under the Agreement. Smith answered and pleaded counterclaims for

breach of the Agreement, quantum meruit, and “unjust enrichment.”

        DeLooze filed a combined traditional and no-evidence motion for summary

judgment. In the traditional portion of the motion, he argued that he was entitled to



        1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).

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judgment because: (1) the Agreement expired in November 2009; and (2) the provision

in the Agreement under which Smith could potentially recover a commission after the

Agreement expired did not apply.              DeLooze also argued that Smith presented no

evidence establishing the essential elements of a claim for breach of contract or quantum

meruit.2

        Smith filed a response to DeLooze’s motion, in which he asserted that Makanojia

first contacted Smith on September 5, 2009 “specifically concerning the Lakeway [Market]

purchase.”     In his response, Smith also asserted that he was entitled to summary

judgment on his claims for breach of contract, quantum meruit, and unjust enrichment.

Smith attached his own affidavit and various documents in support of his response and

motion for summary judgment on his counterclaims.

        DeLooze filed a reply to Smith’s response, in which he: (1) argued that Smith’s

motion for summary judgment on his counterclaims must be denied because it was filed

seven days before the hearing on DeLooze’s motion and was therefore untimely; (2)

objected to numerous statements in Smith’s affidavit; (3) objected to Smith’s documentary

evidence on various grounds as inadmissible; and (4) argued that, even if Smith’s

evidence was considered, he failed to produce any evidence raising a genuine issue of

material fact as to his counterclaims.

        On October 18, 2012, the trial court issued a letter order which: (1) sustained most

of DeLooze’s objections to statements in Smith’s affidavit; (2) sustained all of DeLooze’s




        2 DeLooze asserts that “unjust enrichment” is not an independent cause of action. We agree. See

Mowbray v. Avery, 76 S.W.3d 663, 679 (Tex. App.—Corpus Christi 2002, pet. denied) (holding that “unjust
enrichment is not a distinct independent cause of action but simply a theory of recovery”); see also Oxford
Fin. Co., Inc. v. Velez, 807 S.W.2d 460, 465 (Tex. App.—Austin 1991, writ denied) (same).


                                                    3
objections to Smith’s documentary evidence; (3) granted DeLooze’s motion for partial

summary judgment3; and (4) noted that Smith’s motion for summary judgment was

untimely and was therefore not considered. On April 2, 2013, the trial court issued an

order granting partial summary judgment in DeLooze’s favor, dismissing Smith’s

counterclaims with prejudice, and awarding costs and attorney’s fees to DeLooze. On

September 11, 2013, the trial court issued a final judgment: (1) decreeing that DeLooze

was not under any contractual agreement to pay a commission to Smith; (2) dismissing

Smith’s counterclaims with prejudice; and (3) awarding DeLooze costs and attorney’s

fees in an amount of $51,623.51 plus interest. See TEX. CIV. PRAC. & REM. CODE ANN. §

37.009 (West, Westlaw through 2013 3d C.S.) (providing that court may award costs and

reasonable attorney’s fees in declaratory judgment action). This appeal followed.

                                       II. EVIDENTIARY RULINGS

        By his first issue, Smith contends that the trial court erred in granting DeLooze’s

objections to statements in Smith’s affidavit because DeLooze’s objections lacked

specificity.

    A. Standard of Review and Applicable Law

        “Evidentiary rulings are committed to the trial court's sound discretion.”                 U-Haul

Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “A trial court abuses this discretion

when it acts without regard for guiding rules or principles.” Id.

        Rule 166a(f) requires that affidavits supporting or opposing summary judgment

must “be made on personal knowledge, shall set forth facts as would be admissible in



        3The letter noted that the summary judgment granted was partial because there was no summary
judgment evidence of attorney’s fees and that issue would be heard by the trial court if the parties did not
reach an agreement.

                                                     4
evidence, and shall show affirmatively that the affiant is competent to testify to the matters

stated therein.” TEX. R. CIV. P. 166a(f); see Ryland Grp., Inc. v. Hood, 924 S.W.2d 120,

122 (Tex. 1996). An affidavit must disclose the basis on which the affiant has personal

knowledge of the facts asserted. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 762

(Tex. 1988). An affiant's position or job responsibilities can qualify the affiant to have

personal knowledge of facts and establish how the affiant learned of the facts. Valenzuela

v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.]

2010, no pet.) (stating that affidavits demonstrating personal knowledge often state

affiant's knowledge through affiant's position and specifically described job duties).

       Conclusory statements in an affidavit unsupported by facts are insufficient to

support or defeat summary judgment. Rivera v. White, 234 S.W.3d 802, 807–08 (Tex.

App.—Texarkana 2007, no pet.) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466

(Tex. 1997)). Conclusory affidavits do not raise fact issues. Hood, 924 S.W.2d at 122.

A conclusory statement is one that does not provide the underlying facts to support the

conclusion. Rivera, 234 S.W.3d at 807–08.

   B. Discussion

       The trial court sustained the following objections to statements contained in

Smith’s affidavit:

       (1) Smith’s statement in paragraph 3 that “[all] the facts recited therein [in Smith’s

           response] are true and correct of my personal knowledge” on grounds that the

           statement “is opinion, conclusory and speculative and made without providing

           an underlying factual basis”;




                                              5
(2) Smith’s statement in paragraph 4 that he “assume[d]” information on a fax from

   Makanojia to be in Makanojia’s handwriting on grounds that the statement “is

   conclusory and speculative and made without providing any underlying factual

   basis”;

(3) Smith’s statement in paragraph 4 that a confidentiality agreement signed by

   Makanojia “clearly show[ed] that [Makanojia] was considering the acquisition

   of the Lakeway Market” on grounds that the statement “is opinion, conclusory

   and speculative and made without providing any underlying factual basis”;

(4) Smith’s statement in paragraph 5 that Mehra and Keys “agreed to assist

   Makanojia in understanding the grocery-store business” on grounds it is

   “inadmissible hearsay”;

(5) Smith’s statement in paragraph 5 that “[a]s a direct result of that meeting in

   mid-December, Keys, Mehra and Makanojia set up a meeting with DeLooze at

   the Lakeway Market" on grounds that the statement “is opinion, conclusory and

   speculative and made without providing any underlying factual basis”;

(6) Smith’s statement in paragraph 5 that Keys represented to others “that he was

   representing Makanojia in the transaction to acquire Lakeway Market” as

   “inadmissible hearsay”;

(7) Smith’s statement in paragraph 6 that “Keys and I were acting as co-brokers of

   this transaction” on grounds that the statement “is opinion, conclusory (legal

   and factual) and made without providing any underlying factual basis”; and




                                    6
       (8) Smith’s statement in paragraph 7 that DeLooze “stated on more than one

           occasion that [Smith] would be paid [his] commission when the sale closed” on

           grounds that the statement is “inadmissible hearsay”.

       On appeal, Smith does not discuss or challenge the trial court’s rulings sustaining

DeLooze’s objections or the grounds for the objections. Instead, Smith argues only that

DeLooze’s objections were insufficiently specific. In support of his argument, Smith cites

Stewart v. Sanmina Texas, L.P., 156 S.W.3d 198, 214 (Tex. App.—Dallas 2005, no pet.).

We find Stewart to be distinguishable. In Stewart, the Dallas Court of Appeals found

“conclusory” objections to an affidavit insufficiently specific where the objections were

“made by identifying only the number of particular paragraphs and exhibits.” Id. at 207.

In contrast, DeLooze’s objections to portions of Smith’s affidavit identify specific

statements. In one instance, the trial court sustained DeLooze’s objection as to part of a

sentence but overruled the objection as to the remainder of a sentence. We conclude

that the objections to particular statements were sufficiently specific. We overrule Smith’s

first issue.

                                     III. SUMMARY JUDGMENT

       By his second issue, Smith contends that the trial court erred in granting summary

judgment in DeLooze’s favor.

   A. Standard of Review

       We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 156 (Tex. 2004); Nalle Plastics Family Ltd. P’ship v. Porter, Rogers,

Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet.

denied). In reviewing a summary judgment, we must consider whether reasonable and



                                             7
fair-minded jurors could differ in their conclusions in light of all of the evidence presented.

See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per

curiam). We must consider all the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference in favor of the nonmovant and resolving any doubts

against the motion. See id. at 756. We affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are meritorious. Joe, 145

S.W.3d at 157.

    B. Discussion

        In his second issue, Smith argues that, even disregarding the statements in his

affidavit that were struck by the trial court, the remainder of his affidavit shows that he told

Makanojia about the availability of the Lakeway Market prior to the expiration of the

Agreement. Smith relies on paragraph 11(B) of the Agreement, which provided that Smith

was entitled to the commission—even after termination of the Agreement—if the Lakeway

Market was sold within two years after termination of the Agreement to a buyer with whom

Smith “had any contact regarding same during the existence of this Agreement.” Smith’s

affidavit asserts that he had Makanojia sign two confidentiality agreements: an initial

blank form dated “09/05/09”, and a second one “about October 3, 2009.”4 The affidavit

states that Smith met Makanojia on September 22, 2009 and took him to several business

sites, but Lakeway Market is not specifically mentioned. The affidavit states that on

November 19, 2009, Smith met with Keys, Mehra, and DeLooze at the Lakeway Market,

but there is no mention of Makanojia on that occasion. The affidavit states that Smith met




        4  The trial court struck all of Smith’s documentary evidence, and Smith does not complain on appeal
of the trial court’s ruling excluding his documentary evidence.

                                                     8
with Makanojia, Keys, and Mehra and discussed the sale of the Lakeway Market, but

does not say when that meeting occurred.5

       We conclude that Smith presented no evidence establishing that his contact with

Makanojia prior to the termination of the Agreement was “regarding” the Lakeway Market.

Accordingly, Smith failed to show that he was entitled to a commission based on

paragraph 11 (B) of the Agreement.

       Regarding his affirmative claims, DeLooze attached the following summary

judgment evidence to his motion:

   (1) his own affidavit, in which he stated that (a) Smith did not tell him about or introduce

       him to Makanojia before the expiration of the Agreement; (b) Keys and Mehra

       introduced him to Makanojia for the first time in December 2009; and (c) he did not

       know of Makanojia’s interest in the Lakeway Market and did not have any

       conversation with him about Lakeway Market until after the Agreement expired;

   (2) a copy of the Agreement, which terminated on November 20, 2009;

   (3) excerpts from Keys’s deposition, in which he stated that he first met Makanojia in

       mid- to late December 2009, with Mehra and DeLooze to discuss the sale of the

       Lakeway Market;

   (4) excerpts from Makanojia’s deposition, in which he testified that Mehra introduced

       him to DeLooze in December 2010,6 and that Smith neither showed him the

       Lakeway Market nor was involved in the sale of the Lakeway Market;



       5 A statement that Keys, Mehra, and Makanojia met with DeLooze in mid-December at the Lakeway

Market was struck by the trial court. We note that, by the time of the meeting in mid-December, the
Agreement had expired.
       6   We assume that Makanojia meant December of 2009.


                                                 9
    (5) Makanojia’s contract to purchase the Lakeway Market;

    (6) Smith’s answer and counterclaim;

    (7) an offer to purchase the Lakeway Market dated December 26, 2009, referring to

        Smith and Keys as brokers;

    (8) the September 5, 2009 confidentiality agreement completed by Makanojia with a

        hand-written notation regarding the Lakeway Market; and

    (9) a confidentiality agreement executed by Makanojia and dated October 12, 2009

        that refers to Lakeway Market.7

        DeLooze moved for summary judgment on grounds that Smith failed to offer

evidence that he had contact with Makanojia regarding the sale of the Lakeway Market

during the term of the Agreement.              In his appellate brief, DeLooze notes that “the

confidentiality agreements themselves were properly excluded from the summary

judgment evidence because they were not authenticated.” DeLooze also notes that Smith

does not challenge the trial court’s ruling excluding Smith’s summary judgment evidence.

        Nonetheless, DeLooze included the September 5, 2009 confidentiality agreement

in his summary judgment evidence as “Exhibit I” and the October 12, 2009 confidentiality

agreement as “Exhibit J.” However, neither document is authenticated or supported by

an affidavit. Unauthenticated or unsworn documents, or documents not supported by any

affidavit, are not entitled to consideration as summary judgment evidence. Mackey v.

Great Lakes Investments, Inc., 255 S.W.3d 243, 252 (Tex. App.—San Antonio 2008, pet.

denied); see TEX. R. CIV. P. 166a(f). A complete absence of authentication is a defect of

substance which may be raised for the first time on appeal.                      See Blanche v. First


        7 Makanojia testified that he just signed “a blank paper.” It is unclear whether he was referring to
only the September 5, 2009 confidentiality agreement or both confidentiality agreements.

                                                    10
Nationwide Mortgage Corporation, 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.).

Here, DeLooze challenged the confidentiality agreements before the trial court and on

appeal as unauthenticated. Because they are unauthenticated and not supported by any

affidavit, we may not consider them as summary judgment evidence. See Mackey, 255

S.W.3d at 252.

       We conclude that the summary judgment evidence established that (1) the sale of

the Lakeway Market occurred after the expiration of the Agreement and (2) Smith failed

to present evidence that he had contact with Makanojia about the Lakeway Market during

the term of the Agreement. Accordingly, the trial court did not err in granting summary

judgment in DeLooze’s favor.8 Smith’s second issue is overruled.

                                         IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                      DORI CONTRERAS GARZA,
                                                      Justice


Delivered and filed the
8th day of January, 2015.




       8  Because the trial court did not consider Smith’s counterclaims, we do not consider them. See
TEX. R. CIV. P. 166a(c).

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