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Longoria v. K and K Tree and Tractor

Court of Appeals of Texas, Ninth District, Beaumont

March 9, 2017

EDWARD LONGORIA, Appellant
v.
K AND K TREE AND TRACTOR, Appellee

          Submitted on December 21, 2016

         On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 14-07-07676-CV

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice

         Edward Longoria[1] appeals from a summary judgment in favor of appellee K and K Tree and Tractor ("K and K") in a lawsuit to recover fees for the cleanup of debris and waste from real property via the sale of the property. In four appellate issues, Longoria argues that the trial judge failed to consider all of Longoria's evidence, the trial judge erred by granting summary judgment in favor of K and K, the trial court and parties failed to provide him "notice of hearing dates and other critical dates[, ]" and the trial court failed to allow his counterclaim "to proceed according to the Texas Rules of Civil Procedure." We reverse the trial court's summary judgment order and remand the cause for further proceedings consistent with this opinion.

         BACKGROUND

         K and K filed suit against appellant Edward Longoria individually, [2]contending that Longoria and another individual, Lorenzo Espinosa, owned a company called L&E Properties, Inc. ("L&E"). According to K and K, L&E and a second individual, Thomas L. Lilley, purchased a tract of land as co-owners. According to K and K's petition, in late 2011 or early 2012, debris, trash, and waste were dumped on the land in violation of Texas law, and the State of Texas assessed a $30, 000 administrative penalty against Lilley, as well as a fine of $25, 000 per day until the property was cleaned up. K and K alleged that Lilley, "acting for all owners of the property[, ]" contracted with K and K to clean up the property for $80, 750. K and K pleaded that it undertook the cleanup and the State of Texas subsequently nonsuited its proceedings against Lilley. K and K requested an order from the trial court ordering the tract to be sold for satisfaction of the debt of $80, 750, as well as attorney's fees and interest.

         Longoria filed an answer, in which he pleaded a general denial, filed special exceptions to various portions of K and K's petition, and asserted a counterclaim for fraud. Longoria pleaded that "Plaintiff has not properly provided notice nor has Plaintiff properly complied with the Texas Property Code for placement of a mechanic's lien on the property."

         K and K filed a traditional motion for summary judgment, in which it asserted that its summary judgment proof establishes that it is entitled to judgment as a matter of law because there are no genuine issues of material fact. K and K did not cite any statutes, case law, rules of procedure, or other authorities in its motion for summary judgment. K and K pleaded in its motion for summary judgment that the evidence "establishes that Plaintiff performed the contract, and that Defendants received the benefit of Plaintiff's labor." Attached to K and K's motion for summary judgment were three affidavits. In his affidavit, Lilley stated that he is an individual owner of the property, and the other owner of the property is L&E Properties, a dissolved Nevada corporation that had been operated by Longoria and Espinosa, both of whom are currently incarcerated. Lilley averred as follows:

Some[]time during the years 2012 and 2013, large amounts of trash, rubbish, cement[, ] and tires were dumped on the real property in issue.
The party who dumped the majority of the trash claim[s] to have paid [one of Longoria's relatives] for permission to dump there. Criminal complaints were filed with the Montgomery County Sheriff[']s Department. . . . The State of Texas made demands that the property[] be cleaned up. On or about October 13, 2013, Texas entered a $30, 000.00 penalty against me as an owner of the property and . . . threatened a $25, 000.00 a day fine until the property was cleaned up. As the only available owner[, ] I contracted with K and K Tree and Tractor to clean[]up the property for a specific fee of $80, 750.00. I further negotiated with K and K Tree and Tractor, that if he was not paid he would look solely to the sale of the land to recover his/its fee. . . . Based upon the cleanup I negotiated with the State of Texas to dismiss hearings for daily fines and the withdrawal of the $30, 000 assessment. I am in Chapter 13 [b]ankruptcy . . . and received authority to sell the real property in issue.

         In his affidavit, Chase Cook stated that he is the owner of K and K, and that K and K entered into a written contract with Lilley to clean up and remove trash and other material from the property. Cook averred that, as part of the agreement, K and K agreed to look solely to the real property to satisfy the payment for the work. In addition, Cook averred, "I performed all the requirements of the contract and presented my bill to Thomas L. Lilley and have not been paid." Cook also stated that, after adding all offsets and credits, "K and K Tree and Tractor is owed the sum of $85, 000.00." Cook further averred that he had been required to obtain the services of an attorney and agreed to pay an attorney's fee of $5000. Lastly, Cook averred that the property "should be sold and after cost of sale, I should receive $90, 000.00 out of the sale proceeds, with remaining balance, if any, to the owners." K and K attached numerous exhibits as summary judgment evidence.

         Longoria filed a response to the motion for summary judgment, in which he asserted that genuine issues of material fact exist, and he alleged that K and K lacked authority to conduct any work on the property and stated that he contested "each and every amount claimed by Plaintiff." Longoria asserted that Lilley did not have authority to act on behalf of all the owners of the property. Longoria also asserted that K and K could not assert any mechanic's lien on the property because it "did not comply with the law to place a lien on the property and thus is left with having to sue for the debt." Furthermore, Longoria asserted "that the Agreement upon which Plaintiff relies was prepared as part of the fraud[, ]" and he stated that Cook's affidavit was self-serving and unreliable. Longoria attached an affidavit to his response, in which he averred that he is an owner of the real property; he did not consent or give anyone authority to perform work on the property; he is unaware of K and K performing any services; and he stated, "I believe that Chase Cook, [K and K's counsel], and Thomas L. Lilley fabricated the agreement[] and its terms resulting in fraud."

         After setting the motion for summary judgment for hearing by submission, the trial court signed an order granting K and K's motion for summary judgment.[3]In its order, the trial court found that "Defendants have not pled and served any counterclaim that will preclude summary judgment in this case[]" and "have not pled any affirmative defense that would preclude summary judgment in this cause." The trial court further found that K and K could only look to the real property to satisfy the judgment and concluded ...


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