TERRELL WILLIAM PROCTOR D/B/A T.W. PROCTOR & ASSOCIATES AND PRECO, Appellants
QUALITY SIGNS, INC., Appellee
Appeal from the 80th District Harris County, Texas Trial
Court Case No. 2013-38503
consists of Justices Jennings, Bland, and Lloyd.
Russell Lloyd Justice.
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.
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. 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
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.
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.
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
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
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.
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.
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.
Motion for Summary Judgment and Motion for
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.
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.
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
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.
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
overrule Proctor's first issue.
The Parties' Agreement
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