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Skrastina v. Breckinridge-Taylor Design, LLC

Court of Appeals of Texas, Fifth District, Dallas

June 20, 2018

ZANE SKRASTINA, Appellant
v.
BRECKINRIDGE-TAYLOR DESIGN, LLC D/B/A BRECKINRIDGE TAYLOR, JOHN BRECKINRIDGE WOOLSEY, AND CHARLES TAYLOR, Appellees

          On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-15-04902-E

          Before Justices Francis, Fillmore, and Whitehill

          MEMORANDUM OPINION

          ROBERT M. FILLMORE, JUSTICE

         After purchasing a house, Zane Skrastina hired Gage Prichard Custom Homes, Inc. (GPCH) as the general contractor and Breckinridge-Taylor Design, LLC d/b/a Breckinridge Taylor (BTD) as the interior designer for an extensive renovation project. Skrastina became dissatisfied with the timeliness and quality of the work and stopped paying draw requests submitted by GPCH. After receiving an adverse decision in an arbitration initiated by GPCH, Skrastina filed this suit against BTD, [1] asserting claims for breach of contract, fraudulent inducement, statutory fraud, negligent misrepresentation, violation of the Texas Deceptive Trade Practices Act (the DTPA), and breach of fiduciary duty.

          BTD filed a combined traditional and no-evidence motion for summary judgment. Skrastina then joined John Breckinridge Woolsey and Charles Taylor, the members of BTD, as defendants, asserting they were individually liable for BTD's conduct. After the trial court granted BTD's motion for summary judgment, Woolsey and Taylor filed a combined traditional and no-evidence motion for summary judgment, which the trial court also granted. Skrastina brought this appeal asserting, in five issues, that the trial court erred by sustaining appellees' objections to her summary judgment evidence and by granting summary judgment on her claims for breach of contract, breach of fiduciary duty, and fraudulent inducement. We affirm the trial court's judgment.

         Background

         Skrastina purchased a house on February 19, 2013, with the intention of doing extensive renovations. Skrastina hired BTD as the interior designer for the project, but did not sign a written contract with BTD. Skrastina also hired GPCH to serve as the general contractor on the project. Skrastina and Gage Prichard, Jr., the president of GPCH, signed a residential remodel contract on March 26, 2013, that stated the estimated total cost for the renovation was $424, 070, but the cost was subject to adjustment based on the materials selected by Skrastina. The contract also stated the estimated completion date for the renovation was August 10, 2013. According to Skrastina, both GPCH and BTD were aware the project needed to be finished before her children began school in August and assured her the renovation would be completed on time.

         Skrastina told both GPCH and BTD that she intended to spend the summer in Latvia, but would be available to discuss the renovation by email or phone. The parties' working relationship evolved to the point that Skrastina would typically convey her decisions to Woolsey, who would then communicate that information to GPCH.

         After it "became clear" to her that she "needed to be physically present to make certain decisions, " Skrastina returned to Dallas for a few days at the beginning of July 2013. Skrastina was "shocked" by the lack of progress on the renovation and "alarmed" by "several glaring mistakes." According to Skrastina, appellees assured her the project would be completed on time. Skrastina made the necessary design decisions and returned to Latvia.

         In early August 2013, Skrastina emailed Woolsey and asked whether she could move her furniture and other belongings into the house. After conferring with GPCH, Woolsey informed Skrastina the renovation would not be completed for another five weeks. Skrastina alleged she was admitted to a hospital in Latvia due to the severe anxiety and stress she suffered when she learned the project would not be completed on time.

         The contract with GPCH required Skrastina to pay draws as submitted by GPCH. Skrastina reviewed the draws and was "shocked" to find that many of the charges were "excessive." Skrastina stopped paying GPCH's draw requests. GPCH then terminated the contract for convenience and instituted an arbitration proceeding against Skrastina. The arbitrator found in favor of GPCH and ordered Skrastina to pay the outstanding draw requests as well as GPCH's attorneys' fees. At the time GPCH terminated the contract, the cost of the project was approximately $200, 000 over the estimated price.

         Skrastina filed this lawsuit against BTD, asserting claims for breach of contract, fraudulent inducement, statutory fraud, negligent misrepresentation, violation of the DTPA, and breach of fiduciary duty. BTD filed a combined traditional and no-evidence motion for summary judgment on all of Skrastina's claims. Skrastina filed a fifth amended petition, adding Woolsey and Taylor as defendants and asserting they were individually liable for BTD's conduct because BTD was used to perpetrate a fraud for their direct, personal benefit.

         In the fifth amended petition, Skrastina alleged appellees represented they (1) had the requisite skill, expertise, experience, and knowledge to handle the design project, (2) would ensure Skrastina was not taken advantage of during the renovation and the renovation would "end up exactly" how she wanted, and (3) would see the project through to completion. Skrastina alleged appellees "failed to complete the job they represented" they could do, "covered up" their poor performance, did not timely inform her the project was behind schedule, and overcharged her for goods and services. Skrastina alleged appellees were acting as her agent during the project and it was their "responsibility to oversee the completion of the renovation project, and ensure that it was completed timely, and according to [her] desires and budget." Skrastina sought to recover actual damages consisting of the "cost of repairs, replacement, temporary housing, loss of use, and amounts overcharged, " as well as damages for mental anguish, exemplary damages, and attorneys' fees.

         Skrastina responded to BTD's motion for summary judgment, attaching as summary judgment evidence her declaration, the contract with GBCH, the arbitration award, excerpts of testimony from the arbitration and depositions, photographs, emails, and invoices from BTD. BTD objected that portions of Skrastina's declaration were conclusory, not based on personal knowledge, and self-serving and the photographs were hearsay and not properly authenticated. The trial court granted BTD's motion for summary judgment without stating the bases for its ruling and without ruling on BTD's objections to Skrastina's summary judgment evidence.

         Woolsey and Taylor subsequently filed a combined traditional and no-evidence motion for summary judgment on all of Skrastina's claims. Skrastina responded to the motion, attaching as summary judgment evidence a more detailed declaration, the evidence supporting her response to BTD's motion for summary judgment, screen shots from various websites, and additional deposition testimony. Woolsey and Taylor objected that portions of Skrastina's declaration were conclusory, not based on personal knowledge, self-serving, and in violation of the best evidence rule and that the photographs and the screen shots were hearsay and not properly authenticated. The trial court granted Woolsey and Taylor's motion for summary judgment without specifying the bases for its ruling and without ruling on their objections to Skrastina's summary judgment evidence.

         Skrastina subsequently filed a response to appellees' objections to her summary judgment evidence. After the trial court sustained all of appellees' objections to Skrastina's summary judgment evidence, Skrastina brought this appeal.

         Standard of Review

         We review a trial court's grant of summary judgment de novo. Lujan v. Navistar, Inc., No. 16-0588, 2018 WL 1974473, at *3 (Tex. Apr. 27, 2018). To be entitled to a traditional summary judgment, the movant must show no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan, 2018 WL 1974473, at *3. A defendant moving for traditional summary judgment must either conclusively negate at least one essential element of the plaintiff's cause of action or conclusively establish each element of an affirmative defense. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). If the movant carries this burden, the nonmovant must then raise a genuine issue of material fact precluding summary judgment. Lujan, 2018 WL 1974473, at *3.

         A party seeking a no-evidence summary judgment must challenge specific elements of the nonmovant's claim or defense on which the nonmovant would have the burden of proof at trial. Tex.R.Civ.P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). To defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of a claim. Tex.R.Civ.P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). "A genuine issue of material fact exists if the evidence 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Evidence that is "'so weak as to do no more than create a mere surmise or suspicion' that the fact exists" does not create an issue of material fact. Id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact on each of the challenged elements, then a no-evidence summary judgment is not proper. Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014) (per curiam).

         In reviewing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)); Boerjan, 436 S.W.3d at 311-12. We credit evidence favorable to the nonmovant if a reasonable factfinder could, and disregard contrary evidence unless a ...


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