Appeal from County Civil Court at Law No. 4 Harris County,
Texas Trial Court Cause No. 1046321
consists of Justices Boyce, Busby, and Wise.
William J. Boyce Justice.
Homes & Construction LLC appeals from the county
court's judgment in favor of Erol Turk, who sued Carnegie
for breach of contract in connection with a $10, 000
"project initiation deposit" Turk paid to Carnegie
for the architectural design of a home. Turk sued after
Carnegie did not act on his request to return the deposit
following termination of the contract.
county court granted summary judgment in Turk's favor and
awarded $10, 000 in damages, along with attorney's fees.
Carnegie contends that the county court (1) lacked subject
matter jurisdiction to award attorney's fees to Turk; (2)
erred in denying Carnegie's objections to Turk's
summary judgment evidence; (3) erred because fact issues
precluded summary judgment in Turk's favor; and (4) erred
in awarding attorney's fees because Turk effectively
nonsuited his request for attorney's fees.
affirm the county court's judgment in part with respect
to liability and damages on the contract claim. We reverse
and remand the county court's judgment in part with
respect to attorney's fees because Carnegie controverted
Turk's fee evidence.
and Carnegie entered into a "Memorandum of
Understanding" on May 2, 2012. The memorandum states in
its entirety as follows:
This letter serves as acknowledgement of the understanding
between Carnegie Custom Homes (builder) and Mr. Erol Turk,
and/or related parties that a $10, 000 project initiation
deposit has been received by Carnegie Homes.
This deposit is considered earned upon completion of the
architectural design of proposed property on 1116 Drew,
Houston, TX 77006 and is credited towards the final contract
price for the construction.
Please do not hesitate to call or email me with any questions
text is followed by two signature blocks. Turk signed
individually as "Buyer" and Carnegie's
president, Arpan Gupta, signed on behalf of "Carnegie
Custom Homes (Builder)." The parties signed no other
sent an email to Carnegie on July 30, 2012, in which he
terminated the contract for Carnegie's services. In a
certified letter to Carnegie dated October 1, 2012, Turk
stated that "some architectural services for the
property . . . were rendered on my behalf by Architect Martin
Lide through your firm." Turk's letter further
stated that "the architectural design of the property
was not completed. As a result, my $10, 000 deposit with your
firm was not earned, as required by the Memorandum."
Turk demanded "[a]n accounting of the architectural
services by Martin Lide and already paid to him by your firm
. . . ." He also demanded "[a] return of the
balance of the $10, 000 deposit." Carnegie did not
pro se, Turk filed a petition in small claims court
contending that Carnegie was "justly indebted to
Plaintiff in the amount of $10, 000 for project initiation
deposit for completion of architectural design of proposed
building at 1116 W. Drew, Houston, TX 77006 . . . ."
Turk's small claims petition alleged that "there are
no counterclaims existing in favor of the Defendant and
against the Plaintiff, except . . . a fee in the amount of
$2, 400 that defendant is believed to have paid for the
architect's services." Turk effected service on
Carnegie and its counsel filed an answer. A justice of the
peace subsequently signed a default judgment against Carnegie
awarding $7, 652.50 in damages and $104 in court costs to
Turk, along with post-judgment interest.
then appealed to County Court at Law No. 4 for a trial de
novo. See Tex. R. Civ. P. 506.3 ("The case
must be tried de novo in the county court. A trial de novo is
a new trial in which the entire case is presented as if there
had been no previous trial.").
now represented by counsel, characterized the Memorandum of
Understanding in county court as a "deposit
contract" in his live petition. He alleged that
"the deposit would be earned 'upon completion of the
architectural design'" and "[t]he architectural
plans were never completed." He further alleged that
Carnegie "has not returned the project initiation
deposit" and Carnegie "wrongfully exercised
dominion and control over Plaintiff's money, and
continues to refuse to return the initiation fee." Turk
pleaded that all conditions precedent had been performed,
waived, or excused; he asked for judgment against Carnegie
awarding actual damages, pre- and post-judgment interest,
attorney's fees under Chapter 38 of the Texas Civil
Practice and Remedies Code, and court costs. Carnegie's
live answer asserted a general denial along with defenses
based on modification; novation; ambiguity; mutual mistake;
offset; and failure of conditions precedent.
filed a combined traditional and no-evidence motion for
summary judgment in county court. The county court granted
Turk's motion for summary judgment in its entirety. The
county court's judgment awards $10, 000 in actual damages
and $15, 000 in attorney's fees to Turk, along with court
costs and pre- and post-judgment interest. Carnegie timely
appealed to this court.
filed a traditional motion for summary judgment under Texas
Rules of Civil Procedure 166a(a) and (c) with respect to his
affirmative claim against Carnegie seeking return of the $10,
000 "project initiation deposit" along with $15,
000 in attorney's fees under Chapter 38 of the Civil
Practice and Remedies Code.
filed a no-evidence motion for summary judgment under Texas
Rule of Civil Procedure 166a(i) with respect to
Carnegie's pleadings asserting that Carnegie performed
and completed all obligations; the parties modified the
contract and established a novation; the agreement is
ambiguous and was entered into based on mutual mistake;
Carnegie is entitled to offset for services and work
performed at Turk's request; and Turk's claims are
barred by the failure of conditions precedent.
review a trial court's grant of summary judgment de
novo. See, e.g., Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider
all of the summary judgment evidence in the light most
favorable to the nonmovant, crediting evidence favorable to
the nonmovant if a reasonable factfinder could and
disregarding contrary evidence unless a reasonable factfinder
could not. See Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). When a party moves for
summary judgment on both traditional and no-evidence grounds,
we address the no-evidence grounds first. See
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
no-evidence motion for summary judgment, the movant
represents that there is no evidence of one or more essential
elements of the claims for which the nonmovant bears the
burden of proof at trial. Tex.R.Civ.P. 166a(i). The burden
then shifts to the nonmovant to present evidence raising a
genuine issue of material fact as to the elements specified
in the motion. Tamez, 206 S.W.3d at 582.
movant for traditional summary judgment has the burden of
showing that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). In particular, a plaintiff moving for summary judgment
must conclusively prove all essential elements of its claim.
Cullins v. Foster, 171 S.W.3d 521, 530 (Tex.
App.-Houston [14th Dist.] 2005, pet. denied) (citing MMP,
Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)).
review a trial court's rulings on admission or exclusion
of summary judgment evidence for abuse of discretion.
See, e.g., United Blood Servs. v. Longoria, 938
S.W.2d 29, 30 (Tex. 1997) (per curiam); Sloan Creek II,
L.L.C. v. N. Tex. Tollway Auth., 472 S.W.3d 906, 918
(Tex. App.-Dallas 2015, pet. denied).
also asserts a jurisdictional challenge to the attorney's
fee award. Whether the fees awarded exceed the jurisdictional
limits of the trial court presents a question of law, which
we review de novo. See City of
Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590
(Tex. 2015) (per curiam) (jurisdiction reviewed de
novo); Tucker v. Thomas, 419 S.W.3d 292, 295
(Tex. 2013) (statutory entitlement to fees reviewed de
Jurisdiction Over Turk's Request for Attorney's
did below, Carnegie contends on appeal that the county court
lacked jurisdiction to award attorney's fees to Turk in
addition to his $10, 000 recovery because (1) the upper
jurisdictional limit is $10, 000 for a justice court handling
a small claims case; and (2) "a county court, on an
appeal from a suit originating in justice court, has no
greater jurisdiction and is unable to grant any greater
relief than the justice court."
courts handling a small claims case may entertain claims for
"no more than $10, 000, excluding statutory interest and
court costs but including attorney fees." Tex.R.Civ.P.
500.3(a); see also Tex. Gov't Code Ann.
§§ 27.031(a)(1), 27.060(a) (Vernon Supp. 2016).
"the county court's appellate jurisdiction is
confined within the limits of the justice court's
jurisdiction." Kendziorski v. Saunders, 191
S.W.3d 395, 406 (Tex. App.-Austin 2006, no pet.). This
general rule does not apply to additional sums that are
"sustained as a result of the passage of time, such as
attorney's fees." Id. at 409. We agree with
the conclusion of our sister court in Lost Creek
Ventures, LLC v. Pilgrim, No. 01-15-00375-CV, 2016 WL
3569756, at *8 (Tex. App.-Houston [1st Dist.] June 30, 2016,
no pet.): "[T]he county court may award attorney's
fees in excess of the jurisdictional limits of the small
claims court on appeal, because fees increase as litigation
continues over time." Id.; see also
Crumpton v. Stevens, 936 S.W.2d 473, 477 (Tex. App.-Fort
Worth 1996, no writ) (citing Mr. W. Fireworks, Inc. v.
Mitchell, 622 S.W.2d 576, 577 (Tex. 1981), and Flynt
v. Garcia, 587 S.W.2d 109, 109-10 (Tex. 1979)).
attempts to distinguish Lost Creek Ventures because
a portion of the analysis in that case discusses former Texas
Rule of Civil Procedure 574a, which was repealed in 2013.
This attempt fails because the portion of Lost Creek
Ventures discussing former Rule 574a addressed a
different issue focusing on whether a litigant who did not
seek attorney's fees in small claims court nonetheless
could seek them on appeal in county court. See Lost Creek
Ventures, LLC, 2016 WL 3569756, at *8.
on the portion of Lost Creek Ventures that confirms
a litigant's ability in appropriate circumstances to
recover attorney's fees on appeal to county court beyond
the $10, 000 ceiling established for small claims under Texas
Rule of Civil Procedure 500.3. See id. This portion
of Lost Creek Ventures relies on
Kendziorski, 191 S.W.3d at 406-09, which Carnegie
also relies upon in his briefing.
overrule Carnegie's first issue.
Carnegie's Objections to Turk's Summary Judgment
objected to six of Turk's summary judgment exhibits in
the county court; the judge signed an order overruling all of
Carnegie's objections. In its second appellate issue,
Carnegie contends that the county court erred in denying all
objections to these six exhibits. We overrule Carnegie's
second issue for the reasons stated below.
D: Emails Produced by Turk in Response to Discovery.
exhibit consists of four emails between Turk and Martin Lide,
an architect who worked with Carnegie, addressing the status
of Turk's design project; the emails were exchanged
between June and August 2012.
contends that the emails were not authenticated. See
Tex. R. Evid. 901. We reject this contention because
Turk's July 2, 2015 affidavit and Lide's November 20,
2015 affidavit both authenticate these emails; Carnegie does
not challenge the portions of these affidavits authenticating
also contends that these emails "constitute hearsay as
to the Defendant Carnegie Homes & Construction as they
are communication with a third party that was made outside
the presence of the Defendant." We reject this
contention because (1) it does not correspond to the hearsay
definition under Texas Rule of Evidence 801(d); and (2)
Carnegie cites no authority for this contention and does not
attempt to explain why these emails, or portions thereof,
constitute inadmissible hearsay under Rules 801-804.
See Tex. R. App. P. 38.1(i).
county court acted within its discretion in overruling
Carnegie's objections to Exhibit D.
E: Turk Affidavit Signed on April 1, 2015. Except for
paragraph six, Carnegie globally objected in the county court
to every part of every paragraph in this ...