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Acrey v. Kilgore & Kilgore, PLLC

Court of Appeals of Texas, Fifth District, Dallas

March 30, 2017


         On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-03110

          Before Chief Justice Wright and Justices Fillmore, and Brown



         Appellants Ian Acrey, Petrolia Group, LLC, Petrolia West I, LLC and Quanah Acme, LLC appeal a summary judgment granted in favor of appellee Kilgore & Kilgore on its claims for breach of contract and on a sworn account. In a single issue, appellants generally contend the trial court erred in granting K & K's motion for summary judgment. For the following reasons, we reverse the trial court's judgment and remand to the trial court for further proceedings.


         In 2013, Kilgore & Kilgore and Ian Acrey executed an engagement letter in which Kilgore & Kilgore agreed to represent Acrey and "related entities" as local counsel in a suit that was then pending in Dallas County. Under the terms of the engagement letter, Acrey and the related entities agreed to pay Kilgore & Kilgore $450 per hour for Robert Thornton's legal services. The letter did not name the related entities, but was signed by Acrey individually, and on behalf of "Petrolia Group, LLC, Petrolia Weset, [sic] LLC, and Quanah Acme LLC." Kilgore & Kilgore subsequently represented Acrey, Petrolia Group, Petrolia West I, and Quanah Acme in the Dallas County suit.

         Kilgore & Kilgore was paid for its services through the end of 2013, when the litigation resulted in a settlement agreement. Kilgore & Kilgore continued to provide services to appellants in 2014 in connection with a claim to enforce the terms of the settlement agreement.[1]Kilgore & Kilgore sued Acrey, Petrolia Group, Petrolia West, and Quanah Acme on a sworn account and for breach of contract seeking to recover amounts due for services it rendered in 2014.[2] Appellants, including Petrolia West I, who had not yet been named as a defendant, answered and filed verified denials asserting there was a defect in parties and there was no joint and several liability.

         Kilgore & Kilgore subsequently filed a Second Amended Petition naming "Petrolia West, I, LLC" as a party and also changing the date it asserted prejudgment interest began to accrue.[3]Kilgore & Kilgore then moved for summary judgment asserting it was entitled to judgment on the sworn account because appellants failed to file a verified denial. Kilgore & Kilgore also moved for summary judgment asserting it showed it was entitled to recover on its claim for breach of contract as a matter of law. After Kilgore & Kilgore filed its motion for summary judgment, appellants filed an amended answer with additional verified denials alleging Kilgore & Kilgore did not apply all lawful offsets and credits to the debt, and that Kilgore & Kilgore was not the only attorney that represented it in the prior litigation and it had duplicated the efforts of appellants' other attorneys and/or overbilled them.

         Following a hearing, the trial court granted Kilgore & Kilgore's motion for summary judgment, awarding it $40, 832.91 in actual damages, jointly and severally, against appellants. This appeal followed.

         Applicable Law

         A party moving for summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166 a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). When a plaintiff moves for summary judgment, it has the burden to conclusively establish all elements of its claim as a matter of law. Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex. App.-Dallas 2011, pet. denied). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex. App.-Dallas 2011, pet. denied). If the plaintiff satisfies this burden, the burden shifts to the defendant to present some evidence to raise a genuine issue of material fact. Affordable Motor, 351 S.W.3d at 519. When reviewing a motion for summary judgment, the court indulges every reasonable inference in favor of the non-movant, and resolves all doubts in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

          Texas Rule of Civil Procedure 166a(f) requires that affidavits supporting or opposing summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein." Tex.R.Civ.P. 166a(f); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 826 (Tex. App.- Dallas 2013, no pet.) (affidavit not based on personal knowledge is legally insufficient).

         A summary judgment affidavit must "positively and unqualifiedly" represent that the facts stated in the affidavit are true. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Burke v. Satterfield, 525 S.W.2d 950 (Tex. 1975). Statements predicated to the best of the affiants knowledge and belief do not constitute a positive and unqualified representation that such facts are true. Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). See Pinkston v. Wills, 200 S.W.2d 843, 845 (Tex. Civ. App.-Dallas 1947, no writ) ("affidavit" stating that allegations are true 'to the best of [affiant's] knowledge and belief' is fatally defective"); VSR Fin. Services, Inc. v. McLendon, 409 S.W.3d 817, 826 (Tex. App.-Dallas 2013, no pet.).

         An objection that summary judgment evidence is conclusory is a defect of substance that may be raised for the first time on appeal. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855-56 (Tex. App.-Dallas 2011, no pet.); Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.- Dallas 2004, pet. denied). The absence of records referenced in an affidavit may make the affidavit conclusory. Brown, 145 S.W.3d at 752; Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439, 445 (Tex. App.-El Paso 1994, writ denied); see also Tex. R. Civ. P 166a(f) (sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith). Specifically, if records ...

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