Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 158TH JUDICIAL DISTRICT COURT DENTON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J.,
Twelfth Court of Appeals, sitting by assignment.
Land Records, LLC, (NLR) appeals from a summary judgment
granted in favor of Peirson Patterson LLP and Digital Docs
collectively referred to as (Peirson) in a contract case. In
two issues, NLR challenges the trial court's summary
judgment ruling and award of attorney's fees. We affirm.
to the record, NLR and Peirson entered into an agreement for
NLR to provide document recording services to Peirson. In
January 2015, NLR sued Chase Manhattan Mortgage Corporation
and JP Morgan Chase Bank NA (JPMC) for breach of contract and
quantum meruit, alleging that JPMC, through its purported
agent Peirson, contacted NLR on JPMC's behalf and
arranged for recordation of documents related to JPMC's
mortgage portfolios. NLR alleged that, in order to record the
documents on behalf of JPMC, NLR agreed to advance or prepay
county recording fees, eRecording fees, postage, courier
fees, and abstracter's fees as needed. NLR further
alleged that JPMC would pay an agreed service fee and
reimburse NLR for expenses incurred in the recording process.
In this first lawsuit, NLR did not sue Peirson. Rather, NLR
alleged that JPMC had intentionally granted Peirson the
authority to act on JPMC's behalf and that Peirson was
acting within the scope of its authority in securing
recording services from NLR.
February, the first lawsuit was removed to federal court and
JPMC filed a motion to dismiss for failure to state a claim
upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6). NLR did not respond to the motion and, as
a result, NLR was deemed unopposed to the motion. The federal
court granted the motion.
filed the instant lawsuit on March 23, and added Peirson as a
defendant, but alleged the same facts, causes of action, and
theory of liability. NLR alleged that it sent an itemized
list of services and costs to Peirson, which totaled
approximately $3.3 million and that Peirson paid
approximately $2.8 million toward those invoices, leaving a
balance owed of $485, 497.75. NLR asserted causes of action
for suit on sworn account, breach of contract, and quantum
April 25, 2016, Peirson filed a Second Amended Answer,
Affirmative Defenses and Counterclaims. On April 26, Peirson
moved for summary judgment on its affirmative defense of res
judicata. A week before the hearing on the motion for summary
judgment, NLR amended its petition to remove JPMC as a
defendant. The trial court granted partial summary judgment,
ordering that NLR take nothing on its claims. Peirson
subsequently nonsuited its counterclaims against NLR and the
trial court entered final judgment on June 9. This appeal
first issue, NLR contends that the trial court erred in
granting summary judgment, because Peirson failed to
establish all of the elements of its affirmative defense of
of Review and Burden of Proof
appellate court reviews a summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005). In determining whether there is a fact issue
precluding summary judgment on evidentiary grounds, evidence
favorable to the nonmovant is taken as true and the reviewing
court makes all reasonable inferences and resolves all doubts
in the nonmovant's favor. Id.
prevail on a traditional summary judgment motion, the movant
has the burden of proving that he is entitled to judgment as
a matter of law and that there is no issue of material fact.
Tex.R.Civ.P. 166a(c); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A
defendant moving for summary judgment must either (1)
disprove at least one essential element of the
plaintiff's cause of action, or (2) plead and
conclusively establish each ...