                                                                                 ACCEPTED
                                                                             14-15-00151-CV
                                                             FOURTEENTH COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                        9/23/2015 3:26:04 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                        NO. 14-15-00151-CV

                                                            FILED IN
                                                     14th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FOURTEENTH          JUDICIAL
                                                        HOUSTON,  DISTRICT
                                                                    TEXAS
                    OF TEXAS AT HOUSTON              9/23/2015 3:26:04 PM
                                                     CHRISTOPHER A. PRINE
                                                              Clerk

                        5500 GRIGGS, INC.,
                            Appellant,

                                 V.

                        FAMCOR OIL, INC.,
                           Appellee.


          On Appeal from the 270TH Judicial District Court
                      of Harris County, Texas
                Trial Court Cause No. 2009-21808


             FAMCOR OIL, INC.’S APPELLEE’S BRIEF


                                      Peter J. Bambace
                                      State Bar No. 01660900
                                      peter@holmbambace.com
                                      Kayla J. Chudej
                                      State Bar No. 24094589
 ORAL ARGUMENT REQUESTED              kchudej@holmbambace.com
                                      Holm Bambace LLP
                                      1010 Lamar Street, Suite 1100
                                      Houston, Texas 77002
                                      (713) 652-9700 – Telephone
                                      (713) 652-9702 – Facsimile

                                      ATTORNEYS FOR APPELLEE,
                                      FAMCOR OIL, INC.
               IDENTITY OF PARTIES AND COUNSEL

Appellants                  5500 Griggs, Inc.

Counsel for Appellants      Jerry L. Schutza
                            State Bar No. 17853800
                            11 Greenway Plaza, Suite 2820
                            Houston, Texas 77046
                            (713) 961-1200 – Telephone
                            (713) 961-0941 – Facsimile

Appellees                   Famcor Oil, Inc.

Counsel for Appellees       Peter J. Bambace
                            State Bar No. 01660900
                            peter@holmbambace.com
                            Kayla J. Chudej
                            State Bar No. 24094589
                            kchudej@holmbambace.com
                            Holm Bambace LLP
                            1010 Lamar Street, Suite 1100
                            Houston, Texas 77002
                            (713) 652-9700 – Telephone
                            (713) 652-9702 – Facsimile




                              ii
                                     TABLE OF CONTENTS

                                                                                                      Page

Identity of Parties and Counsel ................................................................... ii

Index of Authorities .................................................................................... iv

Statement of the Case ................................................................................ 1

Issues Presented ........................................................................................ 3

Contest of Appellant’s Statement of Facts .................................................. 4

Statement of Facts ...................................................................................... 4

Summary of the Argument .......................................................................... 6

Standard of Review .................................................................................... 7

Arguments .................................................................................................. 8

A.      The Trial Court Should Not Have Considered Appellant’s
        Affidavits as Summary Judgment Evidence ....................................... 8

B.      The Trial Court Did Not Err in Granting Famcor’s
        Second Motion for No-Evidence Summary Judgment Evidence ...... 12

        1.      Appellant Failed to Produce Sufficient Evidence of a Valid,
                Enforceable Contract and that Appellant is a
                Proper Party to Sue for Breach of Contract............................. 13

        2.      Appellant Failed to Produce Sufficient Evidence that it
                Performed or Tendered Performance Under the Contract ...... 15

        3.      Appellant Failed to Produce Sufficient Evidence that
                Famcor Breached the Contract ............................................... 16

        4.      Appellant Failed to Produce Sufficient Evidence that it
                Suffered Damages as a Result of Famcor’s Breach ............... 17

                                                      iii
Conclusion and Prayer .............................................................................. 19

Certificate of Service ................................................................................. 21

Certificate of Compliance .......................................................................... 22




                                                    iv
                               INDEX OF AUTHORITIES

Cases                                                                                     Page

B&W Sup. v. Beckman,
  305 S.W.3d 10 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ...... 12

Boerjan v. Rodriguez,
  436 S.W.3d 307 (Tex. 2014) .................................................................. 7

Brownlee v. Brownlee,
   665 S.W.2d 111 (Tex. 1984) ................................................................ 10

Choctaw Prop., LLC v. Aledo ISD,
  127 S.W.3d 235 (Tex. App.—Waco 2003, no pet.) ............................... 10

Dolcefino v. Randolph,
  19 S.W.3d 906 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) .... 10

Dow Chem. Co. v. Francis,
  46 S.W.3d 237 (Tex. 2001) .................................................................... 7

Ford Motor Co. v. Ridgway,
  135 S.W.3d 598 (Tex. 2004) .................................................................. 6

Haynes v. City of Beaumont,
  35 S.W.3d 166 (Tex. App.—Texarkana 2000, no pet.) ......................... 10

Holloway v. Dekkers,
  380 S.W.3d 315 (Tex. App.—Dallas 2012, no pet.) ................................ 9

Johnson v. Brewer & Pritchard, P.C.,
  73 S.W.3d 193 (Tex. 2002) .................................................................... 8

King Ranch, Inc. v. Chapman,
   118 S.W.3d 742 (Tex. 2003) .................................................................. 8

Mandell v. Hamman Oil & Ref. Co.,
  822 S.W.2d 153 (Tex. App.—Houston [1st Dist.] 1991, writ denied) ..... 12


                                                v
Mercer v. Daoran Corp.,
  676 S.W.2d 580 (Tex. 1984) .................................................................. 9

Merrell Dow Pharms., Inc. v. Havner,
  953 S.W.2d 706 (Tex. 1997) .................................................................. 8

Nall v. Plunkett,
  404 S.W.3d 552 (Tex. 2013) .................................................................. 7

Selz v. Friendly Chevrolet, LTD.,
  152 S.W.3d 833 (Tex. App.—Dallas 2005, no pet.) .............................. 10

Stone v. Midland Multifamily Equity REIT,
   334 S.W.3d 371 (Tex. App.—Dallas 2011, no pet.) ................................ 9

Trejo v. Laredo Nat’l Bank,
   185 S.W.3d 43 (Tex. App.—San Antonio 2005, no pet.)....................... 10

Wal-Mart Stores, Inc. v. Merrell,
  313 S.W.3d 837 (Tex. 2010) ...................................................... 9, 10, 13


Rules

TEX. R. CIV. P. 166a(c) .............................................................................. 18

TEX. R. CIV. P. 166a(i) ................................................................................. 8

TEX. R. CIV. P. 193.6 ................................................................................. 11




                                                    vi
                           ABBREVIATIONS

“C.R.” means the Clerk’s Record that was filed with this Court on May 6,
2015.




                                   vii
                      STATEMENT OF THE CASE

1.   On April 7, 2009, Appellant, 5500 GRIGGS, INC. (“Appellant”), filed

its Original Petition, a breach of contract real estate claim, against

Appellee, FAMCOR OIL, INC (“Famcor”). C.R. 3–10.

2.   On September 30, 2009, Famcor filed its Original Answer. C.R. 11–

12. In its Original Answer, Famcor entered a general denial of matters pled

by Appellant pursuant to Rule 92 of the Texas Rules of Civil Procedure.

C.R. 11–12.

3.   On June 20, 2014, Famcor filed its First Amended Original Answer.

C.R.13–15.

4.   On October 23, 2014, Famcor filed its Second Motion for No-

Evidence Summary Judgment. C.R. 16–23.

5.   On November 7, 2014, Appellant filed its Response to Defendant’s

Second Motion for No-Evidence Summary Judgment with Exhibits. C.R.

24–117.

6.   On November 13, 2014, Famcor filed its Reply in Support of its

Second Motion for No-Evidence Summary Judgment. C.R. 118–127.

7.   On November 21, 2014, the Trial Court signed the Order Granting

Defendant’s Summary Judgment. C.R. 147–148.




                                    1
8.    On December 19, 2014, Appellant filed a Motion for Reconsideration

of Summary Judgment and for New Trial. C.R. 149–150.

9.    On December 29, 2014, Famcor filed its Response to Plaintiff’s

Motion for Reconsideration and for New Trial. C.R. 151–157.

10.   On February 16, 2015, Appellant filed its Notice of Appeal. C.R. 164.




                                     2
                        ISSUES PRESENTED

1.   Did the Trial Court err by considering Appellant’s affidavits as
     summary judgment evidence?

2.   Did the Trial Court err by granting Famcor’s Second Motion for No-
     Evidence Summary Judgment?




                                  3
         CONTEST OF APPELLANT’S STATEMENT OF FACTS

      Famcor contests the Statement of Facts contained in Appellant’s

Opening Brief on the Merits.     The Statement of Facts is comprised of

statements taken verbatim from the section of Appellant’s Response to

Famcor’s Second Motion for No Evidence Summary Judgment labeled

“There Is Evidence to Support Plaintiff’s Claims.” Accordingly, Appellant’s

Statement of Facts is speculative, conclusory, and assumes facts that are

not in evidence. Specifically, Appellant’s contention that Famcor’s drilling

and operation of the well has caused damage to Griggs because it caused

a reduction of the value of the Property is speculative, conclusory, and

assumes facts that are not in evidence. Additionally, Appellant’s reliance

on the Affidavit of Joe Stanfield is improper as the affidavit contains

conclusory and speculative statements without pointing to any facts

supporting his conclusions. As such, Mr. Stanfield’s affidavit is insufficient

as a matter of law and should not be relied upon.

                         STATEMENT OF FACTS

      This appeal arises out of a breach of contract lawsuit that Appellant

filed against Famcor on April 7, 2009. In its Original Petition, Appellant

alleged that it owned the surface rights of the property onto which Famcor

entered and drilled one or more wells. C.R. 3–6. Appellant further alleged


                                      4
that this property was subject to a Surface Use Restrictions Agreement (the

“SUA”) which provided that Famcor had to compensate Appellant for any

reduction in the fair market value of the surface estate caused by Famcor’s

drilling. C.R. 3–6. However, Appellant failed to produce any evidence that

any drilling by Famcor actually caused a reduction in the fair market value

of the property.

      Famcor provided Appellant with more than adequate time for

discovery before it initially requested summary judgment on June 20, 2014.

At that point, the case was more than five years old and was on its seventh

trial setting.     Appellant had gone four years without responding to

interrogatories or requests for production, designating necessary experts,

or otherwise identifying the amount or method of calculating damages as

required by law. Appellant requested that the Trial Court give it two to

three more weeks to supplement its discovery and produce an appraisal

and expert report.      The Trial Court graciously consented and denied

Famcor’s summary judgment motion without prejudice. Appellant never

produced the promised supplementation, appraisal, or expert report, and

Famcor filed its Second Motion for No-Evidence Summary Judgment on

October 23, 2014. C.R. 16–23. The Trial Court granted Famcor’s motion

and Appellant filed this appeal in response. C.R. 147–148.


                                     5
                     SUMMARY OF THE ARGUMENT

      Appellant challenges the Trial Court’s granting Famcor’s Second

Motion for No-Evidence Summary Judgment on Appellant’s breach of

contract claim. In its brief filed with this Court, Appellant not only misstated

the appropriate legal standard used in reviewing no-evidence summary

judgments, but also wrongfully asserted the issue presented to this Court.

Appellant stated, “[t]he issue is whether the evidence offered by Griggs

established any evidence that Famcor caused any reduction in the value of

the Property.”

      The Trial Court did not err in granting Famcor’s Second Motion for

No-Evidence Summary Judgment because Appellant failed to provide

sufficient evidence of each element of its breach of contract claim. In its

Motion, Famcor challenged each element of Appellant’s breach of contract

claim, thus Appellant was required produce evidence of each element

challenged or else the summary judgment stands. See Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Since Appellant failed to bring

forth sufficient evidence of each challenged element, the Trial Court did not

err in granting Famcor’s Second Motion for No-Evidence Summary

Judgment.




                                       6
     If Appellant wanted to argue that Famcor’s challenge to each element

of the breach of contract claim was unclear, special exceptions were

required. See, e.g., Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013)

(“[a]n exception is required should a non-movant wish to complain on

appeal that the grounds relied on by the movant were unclear or

ambiguous.”). Because Appellant did not file special exceptions, and the

Trial Court granted summary judgment without specifying the grounds

relied upon, summary judgment stands unless Appellant can produce

evidence of each element.     See, e.g., Dow Chem. Co. v. Francis, 46

S.W.3d 237, 242 (Tex. 2001). Appellant did not produce evidence of each

element of its breach of contract claim.   Accordingly, this Court should

affirm the Trial Court’s granting of Famcor’s Second Motion for No-

Evidence Summary Judgment.

                        STANDARD OF REVIEW

     In reviewing a no-evidence summary judgment, an appellate court

must consider all the evidence in the light most favorable to the party

against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not. See Boerjan v. Rodriguez,

436 S.W.3d 307, 311–12 (Tex. 2014). The nonmovant has the burden to


                                    7
produce summary judgment evidence raising a genuine issue of material

fact as to each challenged element of its cause of action. TEX. R. CIV. P.

166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206 (Tex.

2002). “A no evidence point will be sustained when (a) there is a complete

absence of evidence of a vital fact, (b) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital

fact, (c) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (d) the evidence conclusively establishes the opposite of the

vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)).

                               ARGUMENTS

A.    The Trial Court Should Not Have Considered Appellant’s
      Affidavits as Summary Judgment Evidence.

      In its response to Famcor’s Second Motion for No-Evidence

Summary Judgment, Appellant offered as summary judgment evidence the

affidavits of Sharon Lewis and of Joseph Stanfield in an attempt to prove

that it suffered damages. C.R. 83–87. In reply, Famcor objected to these

affidavits on several grounds.      C.R. 124–125.      Famcor re-asserts its

objections to Appellant’s summary judgment affidavits again on appeal and

is permitted to do so although the record does not evidence a ruling on

                                      8
those objections at the Trial Court. See Stone v. Midland Multifamily Equity

REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.) (explaining

that a defect in the substance of an affidavit is not waived by failure to

obtain a ruling from the trial court). Texas courts treat objections to the

substance and to the form of affidavits differently—objections to the form of

an affidavit is waived unless a party obtains a ruling on that objection. Id.

Conversely, an objection to the substance of a summary judgment affidavit

“may be raised for the first time on appeal” and, if meritorious, “leave[s] the

evidence legally insufficient.” Id.

      The Texas Supreme Court in Wal-Mart Stores, Inc. v. Merrell, stated,

“[o]pinion testimony that is conclusory or speculative is not relevant

evidence, because it does not tend to make the existence of a material fact

‘more probable or less probable’ [and] [s]uch conclusory statements cannot

support a judgment even when no objection was made to the statements at

trial.” 313 S.W.3d 837, 839 (Tex. 2010). Additionally, conclusions in an

affidavit are insufficient either to support summary judgment or to raise a

fact issue in response to a summary judgment motion. See Holloway v.

Dekkers, 380 S.W.3d 315, 323 (Tex. App.—Dallas 2012, no pet.) (citing

Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984). The Texas

Supreme Court in Merrell concluded that the trial court, while having


                                      9
admitted the expert’s evidence over Wal-Mart’s objection, had properly

granted summary judgment because “[s]uch conclusory statements cannot

support a judgment even when no objection was made . . .” 313 S.W.3d at

840 (Tex. 2010).

         Famcor re-asserts its objections to the affidavit of Sharon Lewis. Ms.

Lewis’ affidavit contains opinions which required scientific, technical, or

other specialized knowledge and Ms. Lewis was never designated as

expert, was never qualified as an expert, and may not offer expert opinions.

Famcor objects as Ms. Lewis’ affidavit contains legal conclusions. Famcor

further objects as Ms. Lewis’ affidavit is conclusory and speculative as

matter of law because (1) it fails to provide sufficient underlying facts to

support her conclusions1; (2) fails to specify factual matters such as the

time, place, and exact nature of her allegations2; and (3) amounts to

“nothing more than sworn repetitions of the allegations in [the] pleadings.”3

As a result, Famcor again asserts that Ms. Lewis’ affidavit amounts to no

1
 Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 50 (Tex. App.—San Antonio 2005, no
pet.); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000,
no pet.); Choctaw Prop., LLC v. Aledo ISD, 127 S.W.3d 235, 243 (Tex. App.—Waco
2003, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied).
2
    Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
3
 Selz v. Friendly Chevrolet, LTD., 152 S.W.3d 833, 837 (Tex. App.—Dallas 2005, no
pet.).



                                           10
evidence as a matter of law. Famcor respectfully asks this Court sustain

these objections and strike Ms. Lewis’ affidavit from Appellant’s summary

judgment evidence.

      Famcor also re-asserts its objections to the affidavit of Joseph

Stanfield. Famcor objects as Mr. Stanfield’s affidavit, report, and expert

opinions are mandatorily excluded pursuant to Rule 193.6 of the Texas

Rules of Civil Procedure. TEX. R. CIV. P. 193.6. This affidavit and report

were produced responsive to discovery that had been pending for more

than four years, approximately ten days prior to trial. Famcor objects as

Mr. Stanfield’s affidavit uses an improper measure of damages. Appellant

admitted in its pleadings that the proper measure of damages in this matter

would be the reduction in “fair market value” of the estate. C.R. 4. Mr.

Stanfield’s affidavit contains several allegations of “diminished value,” but

contains no representations of reduction in “fair market value” of the estate.

Famcor further objects as Mr. Stanfield’s affidavit is conclusory and

speculative as a matter of law and does not raise any fact issues. As a

result, Famcor again asserts that Mr. Stanfield’s affidavit amounts to no

evidence as a matter of law. Famcor respectfully asks this Court sustain

these objections and strike Mr. Stanfield’s affidavit from Appellant’s

summary judgment evidence.


                                     11
B.   The Trial Court Did Not Err in Granting Famcor’s Second Motion
     for No-Evidence Summary Judgment.

     Famcor challenged each element of Appellant’s breach of contract

claim in its Second Motion for No-Evidence Summary Judgment.            As

previously stated, Appellant must produce evidence of each challenged

element or summary judgment will stand. Therefore, to defeat the Trial

Court’s granting of summary judgment, Appellant must prove the following

essential elements:

     (1)   There is a valid, enforceable contract;

     (2)   Appellant is a proper party to sue for breach of contract;

     (3)   Appellant performed or tendered performance;

     (4)   Famcor breached the contract; and

     (5)   Appellant suffered damages as a result of Famcor’s breach.

See B&W Sup. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied); Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d

153, 161 (Tex. App.—Houston [1st Dist.] 1991, writ denied). Appellant did

not produce, and the record before this Court does not contain, any

evidence for each challenged element sufficient to survive appeal of the

Trial Court’s granting of Famcor’s Second Motion for No-Evidence

Summary Judgment.




                                     12
     1.    Appellant Failed to Produce Sufficient Evidence of a Valid,
           Enforceable Contract and that Appellant is a Proper Party to
           Sue for Breach of Contract.

     Appellant did not produce, and the record before this Court doesn’t

contain, sufficient evidence that the contract made basis of this suit, the

SUA, is valid and enforceable and that Appellant is a proper party to sue for

breach of contract. First, Appellant has not sufficiently shown that the SUA

applies to the property in question. The SUA states, in paragraph A on

page 1, that the tracts covered by the deed are in Exhibits A and B of the

SUA. C.R. 37. Only the Preamble of said Exhibit A was produced in

response to summary judgment (or ever), and does not show the properties

covered. Exhibit B of the SUA was not produced at all.

     The only possible argument Appellant could have made for

application of the SUA to the property in question is the affidavit testimony

of Sharon Lewis. Ms. Lewis, the president and sole shareholder of 5500

Griggs, Inc., states in her affidavit that the SUA applies. C.R. 83–87. Ms.

Lewis’ affidavit is clearly speculative and conclusory and does not cite any

foundation for which she bases her conclusions (she did, however, cite to a

copy of the SUA attached, which was also missing the exhibits described

above). See, e.g., Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839

(Tex. 2010). With regard to Ms. Lewis’ affidavit, the court is barred by rules


                                     13
of law or of evidence from giving weight to the only evidence offered to

prove a vital fact. As such, Ms. Lewis’ affidavit is not relevant evidence that

Appellant can rely upon to support its claim. Without further evidence that

the SUA actually does apply to the property in question, Appellant failed to

provide sufficient proof that the contract was valid and enforceable.

      Secondly, Appellant did not sufficiently show that the SUA applies to

Famcor, even if it applies to the property in question. The obligations in

question under the SUA apply to a category identified as the “Mineral

Owner.” C.R. 37. The term “Mineral Owner” is contractually defined in the

introductory paragraph of the SUA as a company called Pure Resources,

L.P., its successors, lessees, assigns, and Affiliates. C.R. 37. Appellant

did not produce any evidence that Famcor fits that description or would

otherwise be bound by the contract. There is no evidence before this Court

showing that SUA even applies to Famcor because Appellant has yet to

show that Famcor fits the definition of “Mineral Owner” under the contract.

There is a complete absence of evidence of this vital fact, another reason

why Appellant did not prove that the contract was valid and enforceable.

      Lastly, Appellant failed to sufficiently show that it owned the property

continuously during the time in question. More specifically, Appellant did

not produce sufficient evidence that 5500 Griggs, Inc. owned the property


                                      14
at the time of the alleged damages and notice.            The only evidence

Appellant has produced is the affidavit of Sharon Lewis, which only states

that Appellant purchased the property in or around 2003, not that it has

owned it continuously since that time. Ms. Lewis’ affidavit, as stated above,

is not evidence as a matter of law, and does not sufficiently prove that

Appellant has owned the property in question continuously since it was

purchased in 2003. Appellant cannot rely on Ms. Lewis’ affidavit as any

evidence of the continuity of ownership of the property in question. Without

any evidence proving that Appellant owned the property continuously

during the time in question, Appellant failed to prove that it is a proper party

to sue for breach of contract.

      In sum, Appellant did not sufficiently show that the SUA applies to the

property in question, that the SUA applies to the Famcor, or that Appellant

has continuously owned the property during the time in question.

Accordingly, Famcor’s summary judgment should be sustained due to

Appellant’s failure to provide sufficient evidence of the first and second

challenged elements of its breach of contract claim.

      2.    Appellant Failed to Produce Sufficient Evidence that it
            Performed or Tendered Performance Under the Contract

      Appellant failed to produce sufficient evidence that it performed or

tendered performance under the contract. Appellant has yet to address

                                      15
this element directly. The best Appellant could have argued with regard to

this element of its breach of contract claim was that it provided notice of the

alleged damages. It may be noteworthy, as Appellant completely avoided

addressing this in its brief, that Appellant’s notice of the alleged damages

demanded $500,000 for a dry well and no pipeline and $3,000,000 for one

successful producing well. C.R. 62. Appellant now admits that the alleged

damages were actually $33,100. Regardless of the amount of the alleged

damages, Appellant failed to explain—and certainly did not establish—how

providing Famcor with notice of alleged damages is the performance or

tender of performance required by the contract. Without any explanation of

the conduct required to satisfy this element or any evidence showing that

this element has been satisfied, Appellant did not raise a fact issue of this

challenged element in order to defeat the granting of Famcor’s summary

judgment.

      3.    Appellant Failed to Produce Sufficient Evidence that Famcor
            Breached the Contract

      Appellant failed to produce sufficient evidence that Famcor breached

the contract. Again, Appellant has not addressed this element directly, and

the only argument Appellant could have made (although it did not argue

this, or anything, at all) was that it sent notice of damages to Famcor.

Appellant did not describe what a breach of the SUA would look like, but

                                      16
only suggests that simply not paying damages is a breach. Appellant had

the burden of proof at the Trial Court to provide evidence of its breach of

contract claim, which required sufficient proof that Famcor did in fact

breach the contract. The notice sent to Famcor is far less than a mere

scintilla of evidence offered to prove a vital fact of breach of contract as it

only shows the alleged damages.

      Most importantly, Appellant offered no evidence whatsoever that

Famcor did not pay the amounts allegedly owed.            Appellant bore the

burden of showing that Famcor did not actually compensate Appellant for

the damages Appellant claimed in its notice. Appellant provided no such

evidence. Because Appellant did not describe what actually constitutes a

breach of the SUA, and because there is no evidence that Famcor did not

pay the amounts allegedly owed, there is a complete absence of evidence

of the vital fact that Famcor breached the contract. Appellant failed to

produce sufficient evidence of this challenged element of its breach of

contract claim, so Famcor’s summary judgment should be upheld.

      4.    Appellant Failed to Produce Sufficient Evidence that it Suffered
            Damages as a Result of Famcor’s Breach

      Appellant failed to produce sufficient evidence that it suffered

damages as a result of Famcor’s alleged breach of contract. In an attempt

to prove that it suffered damages, Appellant relied upon the affidavits of

                                      17
Sharon Lewis and of Joseph Stanfield. Ms. Lewis plainly asserted that

Appellant suffered a total loss of twenty to thirty acres valued at $7,500 per

acre, diminished value of the remaining acreage at least by $2,000 per

acre, environmental and reparation clean up costs, and general clean up

costs. Ms. Lewis cited no authority for her guesses. Mr. Stanfield stated

that Appellant has suffered total losses of value for nine acres, diminished

value for an additional sixteen acres, resulting in a total of $33,100. Mr.

Stanfield failed to use the proper measure of damages and failed to make

any reference to the use of the lands he appraised.

      For the reasons stated above and throughout this brief, these

affidavits are deemed no evidence as a matter of law as they are

conclusory and speculative. In order for this Court to consider the affidavits

as evidence that Appellant suffered damages, the testimony must be

uncontroverted, clear, positive, direct, credible, free from contradictions and

inconsistencies, and readily controvertible.       TEX. R. CIV. P. 166a(c).

Because the affidavits do not provide underlying facts to support each

affiant’s conclusions, and because they are nothing more than sworn

repetitions of the allegations in the pleadings, the affidavits are insufficient

to defeat no-evidence summary judgment.




                                      18
      However, should this court overrule Famcor’s objections to

Appellant’s summary judgment evidence, Appellant did not produce

anything further that creates fact issues regarding the other elements

Appellant was required to prove.       Even if the affidavits produced by

Appellant created a fact issue as to whether Appellant suffered damages,

those affidavits do not create fact issues as to the other elements of

Appellant’s breach of contract claim. Appellant did not produce, and the

record before this Court does not contain, sufficient evidence that there is a

valid enforceable contract; that Appellant is a proper party to sue for breach

of contract; that Appellant performed or tendered performance; and that

Famcor breached the contract.       For these reasons, this Court should

uphold Famcor’s No-Evidence Summary Judgment.

                          CONCLUSION AND PRAYER

      For the reasons stated above, Famcor respectfully requests that this

Court affirm the Trial Court’s November 21, 2014 Order granting its Second

Motion for No-Evidence Summary Judgment and enter an opinion

regarding the same. Famcor also requests that this Court grant it all other

and further relief, general or special, at law and in equity, to which that it

may be justly entitled.




                                     19
 Respectfully submitted,

 HOLM BAMBACE LLP


 By: /s/ Peter J. Bambace
       Peter J. Bambace
       State Bar No. 01660900
       peter@holmbambace.com
       Kayla J. Chudej
       State Bar No. 24094589
       kchudej@holmbambace.com
       Holm Bambace LLP
       1010 Lamar Street, Suite 1100
       Houston, Texas 77002
       (713) 652-9700 – Telephone
       (713) 652-9702 – Facsimile

 ATTORNEYS FOR APPELLEE,
 FAMCOR OIL, INC.




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                       CERTIFICATE OF SERVICE

      This will certify that pursuant to Texas Rule of Appellate Procedure
9.5, a true and correct copy of the above and foregoing Famcor Oil, Inc.’s
Appellee’s Brief was forwarded to the following counsel-of-record via e-file,
e-mail, and facsimile on this the 23rd day of September, 2015.

     Jerry L. Schutza
     State Bar No. 17853800
     11 Greenway Plaza, Suite 2820
     Houston, Texas 77046
     (713) 961-1200 – Telephone
     (713) 961-0941 – Facsimile

     Counsel for Appellant,
     5500 Griggs, Inc.



                                            /s/ Peter J. Bambace
                                            Peter J. Bambace




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                    CERTIFICATE OF COMPLIANCE

       This will certify that pursuant to Texas Rule of Appellate Procedure
9.4(i)(3), the foregoing Famcor Oil, Inc.’s Appellee’s Brief complies with
Texas Rule of Appellate Procedure 9.4(i)(2)(B)’s word-count limitation for
computer-generate documents. Specifically, the undersigned certifies that
Famcor Oil, Inc.’s Appellee’s Brief contains 3,557 words.



                                           /s/ Peter J. Bambace
                                           Peter J. Bambace




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