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Lopez v. Bucholz

Court of Appeals of Texas, Third District, Austin

April 7, 2017

Juan O. Lopez d/b/a J.L. Construction Co., Appellant
v.
Dave H. Bucholz and Mary A. Bucholz, Appellees

         FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT NO. C2014-0259C, HONORABLE DIB WALDRIP, JUDGE PRESIDING

          Before Justices Puryear, Goodwin, and Bourland.

          MEMORANDUM OPINION

          CINDY OLSON BOURLAND, JUSTICE.

         Appellant Juan O. Lopez d/b/a J.L. Construction Co. appeals from the trial court's judgment granting the traditional and no-evidence summary-judgment motions of appellees Dave H. Bucholz and Mary A. Bucholz. In four issues, Lopez argues that the trial court erred in sustaining the Bucholzes' objections to his summary-judgment evidence, granting the Bucholzes' summary-judgment motions on his claims and their counterclaim, and awarding the Bucholzes attorney's fees. We will affirm in part and reverse and remand in part.

         BACKGROUND

         The record shows that in November 2012, the Bucholzes entered into a contract with a general contractor, Scott Preiss, for the construction of a home in Comal County. Lopez worked as a subcontractor on the construction of the home and completed various parts of the project, including framing the home and pouring the home's concrete-slab foundation. The issues in this appeal arose because Lopez claimed that in addition to the other work he did on the home, he also installed a driveway, sidewalk, and flagstone for the Bucholzes' home and received only a partial payment of $5, 000 for the work. He alleged that the unpaid portion of the work totaled $27, 584.80. He sent a demand letter for payment to the Bucholzes in January 2014 and then filed suit against them in March 2014, alleging that he had an oral contract directly with the Bucholzes for the alleged additional work that was separate and apart from the Bucholzes' contract with Preiss. He brought claims for breach of contract, sworn account, quantum meruit, and foreclosure of a constitutional lien. The Bucholzes filed a counterclaim for declaratory judgment, seeking declarations that Lopez was not entitled to a constitutional lien and that any affidavit he had filed for a constitutional lien was void. Both parties also sought attorney's fees.

         The Bucholzes filed motions for traditional and no-evidence summary judgment seeking summary judgment on all of Lopez's claims and on their claims for declaratory judgment. After Lopez responded to the summary-judgment motion, the Bucholzes objected to his summary-judgment evidence. The trial court sustained the Bucholzes' objections to Lopez's summary-judgment evidence, granted the Bucholzes' traditional and no-evidence summary judgment motions, and awarded the Bucholzes attorney's fees in the amount of $20, 853.84. This appeal followed.

         DISCUSSION

         Lopez appeals from the trial court's rulings on his summary-judgment evidence, the Bucholzes' summary-judgment motions, and the Bucholzes' request for attorney's fees. We will address each of his issues below.

         Summary-Judgment Evidence

         In his first issue, Lopez contends that the trial court erred in sustaining the Bucholzes' objections to two affidavits he submitted as summary-judgment evidence. The affidavits were those of Lopez and Preiss. We review evidentiary rulings in summary-judgment proceedings under an abuse-of-discretion standard. See Ordonez v. Solorio, 480 S.W.3d 56, 67-68 (Tex. App.-El Paso 2015, no pet.); Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.-Fort Worth 2008, pet. denied); Owens v. Comerica Bank, 229 S.W.3d 544, 548 (Tex. App.-Dallas 2007, no pet.); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000) (trial court's decision to admit or exclude evidence is reviewed for abuse of discretion). A trial court abuses its discretion if it acts without regard to guiding rules or principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Id. Further, to establish reversible error on an evidentiary complaint, the complaining party must show that the trial court erred in excluding the evidence and that the error probably caused rendition of an improper judgment. See Horizon/CMS, 34 S.W.3d at 906; City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).

         The affidavits offered by Lopez in response to the Bucholzes' summary-judgment motions were those of Lopez and Preiss. In Lopez's affidavit, he stated the following:

My name is [Lopez]. I am over 18 years of age and I am competent to make this affidavit, which is true and correct, and which is based on my personal knowledge, and is made voluntarily.
I am the Sole Proprietor of J.L. Construction Co. and in such capacity perform all administrative and operations activities of J.L. Construction Co. It was in my capacity as Sole Proprietor that I gained personal knowledge of the facts set forth in this Affidavit.
In my capacity as the Sole Proprietor of J.L. Construction Co., I oversaw the construction work performed at the residence of Dave H. and Mary A. Bucholz.
The work for which J.L. Construction Co. seeks payment was performed in a good and workmanlike manner at the direct request of Dave H. Bucholz.
Dave H. Bucholz approved the work and paid only a partial payment of $5, 000.00 leaving a balance due of $27, 584.80.
The partial payment of $5, 000 was paid directly by Dave H. Bucholz on August 22, 2013, under his personal bank account.
The work was performed in accordance with the instruction given by Dave H. Bucholz to me on behalf of J.L. Construction Co.
The prices charged were the reasonable and necessary value of the work performed.
The undated invoice and the invoice dated October 7, 2013 . . . were submitted to Dave H. Bucholz for payment on or about October 7, 2013.

         In the affidavit of Preiss (the general contractor), Preiss stated, in relevant part:

My name is [Preiss]. I am of sound mind, capable of making this affidavit, and over the age of eighteen (18) years. I have never been convicted of a felony or crime of moral turpitude. I have personal knowledge of the statements in this affidavit, and the statements in this affidavit are true and correct.
I am the Sole Proprietor of Scott Preiss Construction and in such capacity perform all administrative and operations activities of Scott Preiss Construction. It was in my capacity as Sole Proprietor that I gained personal knowledge of the facts set forth in this Affidavit.
As sole Proprietor of Scott Preiss Construction, I entered a written agreement with Dave H. Bucholz and Mary A. Bucholz to perform a defined scope of work at the Bucholzes' residence.
The written agreement I had with Dave H. Bucholz and Mary A. Bucholz did not include the installation of a new driveway, sidewalk and flagstone.
The installation of a new driveway, sidewalk and flagstone at the Bucholzes' residence was extra work performed by Juan O. Lopez (the "Extra Work").
The Extra Work performed by Juan O. Lopez was not performed subject to the written agreement between me and the Bucholzes.
The Extra Work performed by Juan O. Lopez was not performed under any agreement between me and Juan O. Lopez.
I had no involvement in directing or agreeing to pay for the Extra Work performed by Juan O. Lopez.
The Bucholzes' directed Juan O. Lopez to perform the Extra Work.

         The Bucholzes raised several objections to the affidavits. To begin with, they objected to portions of Lopez's affidavit in which he referenced a $5, 000 payment he received from Mr. Bucholz for his work. Specifically, the Bucholzes objected to the following two statements: "[Mr. Bucholz] approved the work and paid only a partial payment of $5, 000.00 leaving a balance due of $27, 584.80, " and "[t]he partial payment of $5, 000 was paid directly by [Mr. Bucholz] on August 22, 2013, under his personal bank account." In objecting to the two statements, the Bucholzes cited rule 193.6(a) of the Texas Rules of Civil Procedure and argued that the statements should be stricken under that rule because they "ma[d]e reference to a check" that Lopez had not produced in response to a request for production during the discovery process. See Tex. R. Civ. P. 193.6(a) ("A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed . . . unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties."). However, Lopez's statements did not specifically reference a check but rather referenced a "payment, " and even if his statement that the payment was made "under [Mr. Bucholz's] personal bank account" suggests that Mr. Bucholz paid him with a check, it is the check itself that could potentially be excluded under Rule 193.6(a), not testimony about receiving a payment. See id. In addition, one of the invoices Lopez attached to his petition and presented again later as summary-judgment evidence showed a credit of $5, 000 applied to the total amount due. Thus, the Bucholzes had already been made aware of the alleged $5, 000 payment. We also note that in the best-evidence rule context, "[e]vidence to the effect that a payment has been made is admissible without introduction of the check given in payment." See Cockrell v. Republic Mortg. Ins. Co., 817 S.W.2d 106, 116 (Tex. App.-Dallas 1991, no writ) (citing Jackman v. Jackman, 533 S.W.2d 361, 362 (Tex. Civ. App.-San Antonio 1975, no writ)). Given the foregoing, we conclude that the trial court erred in sustaining the Bucholzes' objection to the two statements under rule 193.6(a).

         The Bucholzes also cited rule 166a(f) of the Texas Rules of Civil Procedure and asserted that the affidavits were "conclusory, self-serving, not readily controvertible, not best evidence, and contain[ed] unsubstantiated legal and factual conclusions."[1] Rule 166a(f) states, in relevant part, that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Tex.R.Civ.P. 166a(f). The Bucholzes argued that the affidavits should be excluded under rule 166a(f) ...


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