Court of Appeals of Texas, Fifth District, Dallas
IAN ACREY, PETROLIA GROUP, LLC, PETROLIA WEST I, LLC AND QUANAHACME, LLC, Appellants
KILGORE & KILGORE, PLLC, Appellee
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-03110
Chief Justice Wright and Justices Fillmore, and Brown
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.
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 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.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. 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
& 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.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.
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.
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.
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).
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
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 ...