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Blackstock Federal Constructors, LLC v. Ultimate Group, LLP

Court of Appeals of Texas, Sixth District, Texarkana

February 15, 2018

BLACKSTOCK FEDERAL CONSTRUCTORS, LLC, Appellant
v.
ULTIMATE GROUP, LLP, Appellee

          Submitted: January 24, 2018

         On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 16C1748-202

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Bailey C. Moseley Justice

         In Bowie County, Texas, Ultimate Group, LLP, filed suit against Blackstock Federal Constructors, LLC, for breach of contract, quantum meruit, and unjust enrichment seeking monies allegedly owed for work performed in connection with "the Tex Americas Center project" in New Boston, Texas. Blackstock entered a general and verified denial. The trial court granted Ultimate's motion for summary judgment, awarded $46, 114.70 in damages, $2, 275.00 in attorney fees, and court costs of $573.30.

         On appeal, Blackstock contends that the trial court erred in granting summary judgment in favor of Ultimate because (1) there is a genuine issue of material fact as to the existence of the contract and (2) the trial court relied on improper summary judgment evidence in reaching its decicion.

         We reverse the trial court's judgment and remand the case for further proceedings because a genuine issue of fact exists regarding the existence of a contract between Ultimate and Blackstock.

         I. Procedural and Factual Background

         Ultimate's petition alleged, in pertinent part, that it entered into a valid contract with Blackstock to provide labor and services "in connection with the Tex Americas Center project located at 228 Texas Avenue, New Boston, Texas 75570" and that Ultimate worked on the project under the direction of Anthony & Gordon Construction Company (A&G).[1] Ultimate alleged it fulfilled its obligations under the contract and that Blackstock breached the contract by failing to pay the $46, 114.70 "due and owing for labor and services [Ultimate] supplied on the project." In its verified answer, Blackstock made a general denial, specifically denied "the execution of any instrument" forming the basis of Ultimate's claims and asserted that any such instrument lacked consideration. The affidavit of Stanley McChesney, the president of Blackstock, was attached to the answer, and it stated that Blackstock "did not contract with Anthony and Gordon Construction Company, Inc. or Ultimate Group, LLP to perform work at the TexAmericas Center project located at 228 Texas Avenue, New Boston, Bowie County, Texas in 2015."

         On April, 7, 2017, Ultimate moved for summary judgment on its breach of contract claim. In support of its motion, [2] Ultimate attached the affidavit of George Brophy, [3] Ultimate's managing partner, which stated, in pertinent part:

At the request of Blackstock Federal Constructors, LLC, Ultimate Group, LLP furnished labor on the TexAmericas Center project in New Boston, Bowie County, Texas during 2015. Ultimate Group fulfilled all of its contractual obligations to Blackstock.
At this time, Blackstock, Federal Constructors, LLC owes Ultimate Group, LLP a total of $46, 114.70 for labor provided in the Fall of 2015. All just payments, credits and offsets have been allowed.

         Blackstock's response denied that it contracted with Ultimate to perform the work described in the petition and motion for summary judgment. In support of its response, Blackstock attached an affidavit from McChesney, again stating that Blackstock "did not contract with Anthony & Gordon Construction Company, Inc. or Ultimate Group, LLP to perform work at the TexAmericas Center project located at 228 Texas Avenue, New Boston, Bowie County, Texas in 2015, " as well as an affidavit from Richard Justice, president of A&G, which stated that "A&G has never undertaken or performed work on a construction project identified or known as the "Tex Americas Project" located at "228 Texas Avenue, New Boston, Bowie County, Texas 75570."

         On June 8, 2017, Ultimate filed a supplemental motion for summary judgment, arguing that the evidence attached to its motions "conclusively establishe[d] the existence of a valid and binding agreement between the parties[, ] . . . conclusively establishe[d] that [Ultimate] performed [its] obligations under the agreement [and] . . . establishe[d] that Blackstock breached the agreement by failing to pay the amount due." Again, an affidavit of Brophy was attached to the motion, but it differed from his previous affidavit in that it contained the more generalized statement that Ultimate "furnished labor on a construction project in New Boston, Bowie County, Texas during 2015." (Emphasis added). ...


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