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Proctor v. Quality Signs, Inc.

Court of Appeals of Texas, First District

July 6, 2017

TERRELL WILLIAM PROCTOR D/B/A T.W. PROCTOR & ASSOCIATES AND PRECO, Appellants
v.
QUALITY SIGNS, INC., Appellee

         On Appeal from the 80th District Harris County, Texas Trial Court Case No. 2013-38503

          Panel consists of Justices Jennings, Bland, and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice.

         Terrell William Proctor d/b/a T.W. Proctor & Associates and Preco (collectively, "Proctor") appeal the trial court's take-nothing judgment on their claims for breach of contract, violations of the Deceptive Trade Practices Act ("DTPA"), fraud, breach of fiduciary duty, and negligence against Quality Signs, Inc., and in favor of Quality Signs on its breach of contract counterclaim. On appeal, Proctor raises four issues with multiple sub-issues challenging the trial court's final judgment as well as various rulings by the court during the course of the proceedings. We affirm.

         Background

         On January 4, 2013, Proctor sent a letter to sign manufacturers requesting bids for the construction and installation of a replacement sign for his law office.[1] On January 11, 2013, Dennis Crary, a Quality Signs salesman, emailed Proctor and attached a preliminary drawing of a proposed sign as part of Quality Signs's bid.

         On March 18, 2013, following a series of communications between the parties negotiating the price down from the original proposed price of $9, 343, Proctor accepted Quality Sign's bid. On March 19, 2013, Proctor and Crary, on behalf of Quality Signs, executed a contract for the construction and installation of the sign. The contract reflects a total price of $6, 495.00, not including permits, with 50% of the price (i.e., $3, 000) to be paid as a down payment and the balance ($3, 495) due upon completion.

         On April 18, 2013, Quality Signs filed an application with the City of Houston for a sign permit. On May 7, 2013, Quality Signs advised Proctor that the City had rejected the sign permit application because, among other things, Proctor did not have an occupancy permit for the property on which the sign was to be installed. On May 15, 2013, Proctor obtained an occupancy permit from the City. Quality Signs re-submitted the sign permit application and, on June 12, 2013, the City granted Proctor a sign application permit and an electrical permit. After Quality Signs received the permit, it began fabrication of Proctor's sign.

         On June 28, 2013-approximately two weeks after issuance of the sign permit-Franklin Baker, Quality Sign's owner, went to Proctor's property to begin marking utilities for installation of the sign. When Baker informed Proctor that the sign was ready to be installed, Proctor told him that he had filed suit against Quality Sign that morning. In his petition, Proctor alleged causes of action for breach of contract, fraud, breach of fiduciary duty, negligence, and DTPA violations.

         On July 5, 2013, Proctor wrote a letter to Baker proposing the following options to resolve the situation: (1) Quality Signs install the sign and the parties then negotiate the remaining amount to be paid; (2) the parties agree to the remaining amount to be paid, Quality Sign installs the sign within five days, and Proctor dismisses the lawsuit; (3) Quality Sign refuses to install the sign without full payment of the balance and Proctor proceeds with his lawsuit; or (4) Proctor pays the balance owing, Quality Sign installs the sign within five days, and Proctor proceeds with his lawsuit. On August 2, 2013, Quality Sign sent a demand letter to Proctor requesting payment of the remaining amount due under the parties' contract.

         On December 3, 2013, Quality Sign filed its answer to Proctor's petition as well as counterclaims for breach of contract, suit on a sworn account, and quantum meruit. On December 29, 2014, Proctor filed a motion for summary judgment and set the motion for hearing on January 23, 2015. On January 20, 2015, Jim L. DeFoyd, Quality Sign's attorney at the time, filed a motion to withdraw and requested a continuance to allow Quality Signs to retain other counsel. On January 23, 2015, the trial court signed an order granting DeFoyd's motion to withdraw and ordering that the hearing on Proctor's summary judgment motion be reset. The hearing on Proctor's motion was re-set for April 17, 2015.

         On April 7, 2015, the trial court denied Quality Sign's motion to continue the summary judgment hearing set for April 17 and its request for a telephone conference. Quality Signs filed its summary judgment response on April 10, 2015. Although the parties assert that the trial court denied Proctor's summary judgment motion on April 17, 2015, the record does not contain an order on the motion.

         On August 12, 2015, the trial court held a one-day bench trial. At the conclusion, the trial court found against Proctor on his claims for breach of contract, DTPA violations, fraud, breach of fiduciary duty, and negligence, found in favor of Quality Signs on its breach of contract claim, and awarded $3, 495 in damages to Quality Signs. This appeal followed.

         Discussion

         A. Motion for Summary Judgment and Motion for Withdrawal

         In his first issue, Proctor contends that the trial court erred in denying his motion for summary judgment because (1) Quality Signs did not file a response to the motion; (2) the trial court denied the motion without giving a reason for its ruling; and (3) and no order was signed or entered. Proctor also argues that the trial court erred in re-setting the summary judgment hearing because DeFoyd's motion for continuance was untimely.

         Initially, we note that the record before us does not include an order denying Proctor's motion for summary judgment. See G.M. Houser, Inc. v. Rodgers, 292 S.W.3d 87, 88 (Tex. App.-Dallas 2007, pet. denied) (concluding that where record contained no order denying summary judgment and defendant provided no citation to record showing that trial court ever ruled on its motion, defendant's issue presented nothing for review). However, assuming that the trial court denied the summary judgment motion, Proctor's complaint regarding the denial of his motion is still unavailing. The general rule is that a denial of a summary judgment is not reviewable on appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.3d 623, 625 (Tex. 1996); Mitchell v. Mitchell, 445 S.W.3d 790, 801 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Further, where a motion for summary judgment is denied by the trial court and the case is tried on the merits, the order denying summary judgment cannot be reviewed on appeal. See Clark v. Dillard's, Inc., 460 S.W.3d 714, 724 (Tex. App.-Dallas 2015, no pet.) (citing Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966)); Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex. App.-Dallas 2005, no pet.) ("The denial of a motion for summary judgment when followed by a conventional trial on the merits does not finally decide any issue pending before the trial court; the denial of a motion for summary judgment presents nothing for review."). Here, the trial court conducted a bench trial on the merits of the case. Thus, even if the trial court denied Proctor's summary judgment motion, the order denying the motion would present nothing for our review. See Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 427 (Tex. App.-Texarkana 2008, pet. denied). Similarly, Proctor's complaint with regard to the trial court's re-setting of the summary judgment hearing presents nothing for our review.

         Proctor also argues that the trial court erred in granting DeFoyd's motion to withdraw because the motion was not supported by any medical evidence. On January 20, 2015, DeFoyd filed a motion to withdraw to allow Quality Signs to retain other counsel. In his motion, DeFoyd cited health reasons, among other things, and stated that he was withdrawing from all pending trial litigation. On January 23, 2015, the trial court granted DeFoyd's motion to withdraw.

         Rule 10, which governs the withdrawal of counsel in civil cases, provides that "[a]n attorney may withdraw from representing a party only upon written motion for good cause shown." Tex.R.Civ.P. 10. We are aware of no authority-nor does Proctor direct us to any-requiring that a motion to withdraw be accompanied by medical evidence.

         Proctor complains that the trial court's denial of his summary judgment motion, the granting of DeFoyd's motion to withdraw, and the re-setting of the summary judgment hearing violated his due process rights under the United States and Texas Constitutions. A review of the record reflects that Proctor did not raise a due process claim at any time during the proceedings in the trial court below. Having failed to do so, Proctor has not preserved this issue for appellate review. See Tex. R. App. P. 33.1 (in order to preserve complaint for appellate review, record must show that appellant made complaint to trial court and stated grounds for ruling with sufficient specificity that trial court was made aware of complaint); see Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (noting that generally even constitutional challenges must have been asserted in trial court in order to be raised on appeal); Nivens v. City of League City, 245 S.W.3d 470, 475 n.6 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) (holding that taxpayers failed to preserve their argument that trial court violated their due process rights by granting city's plea to the jurisdiction where taxpayers did not raise issue before trial court).

         We overrule Proctor's first issue.

         B. The Parties' Agreement

         In his second issue, Proctor contends that the trial court erred in concluding that the written contract signed by the parties on March 19, 2013 was the parties' entire agreement. He asserts that the agreement includes two additional parts- Proctor's specification letter and Crary's oral request ...


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