Court of Appeals of Texas, Third District, Austin
Juan O. Lopez d/b/a J.L. Construction Co., Appellant
Dave H. Bucholz and Mary A. Bucholz, Appellees
THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. C2014-0259C, HONORABLE DIB WALDRIP, JUDGE PRESIDING
Justices Puryear, Goodwin, and Bourland.
OLSON BOURLAND, JUSTICE.
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.
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
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.
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
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.
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
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
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.
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
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'
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
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
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).
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." 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)