Appeal from the 200th District Court Travis County, Texas
Trial Court Cause No. D-1-GN-17-001123
consists of Justices Wise, Zimmerer, and Spain.
homeowner appeals a summary judgment in favor of a roofing
company that sued the homeowner for damages after the
homeowner allegedly failed to pay for roofing services and
disparaged the roofing company's business in an online
review. The homeowner contends that the trial court erred in
granting the roofing company's summary judgment motion
and in denying the homeowner's motion to strike deemed
admissions and motion to dismiss the business disparagement
claim under the Texas Citizens Participation Act. We reverse
March 2017, Appellee D.R. Kidd Company, Inc., d/b/a Kidd
Roofing, sued appellant Oscar Romero III in a Travis County
district court, asserting claims based on a sworn account,
breach of contract, quantum meruit, and business
disparagement. Kidd Roofing alleged that Romero failed to
pay for roofing work provided at Romero's house as agreed
in a written contract and published disparaging words about
Kidd Roofing's business and employees on Angie's
List, a web-based service. Romero timely responded with a
1, 2017, Kidd Roofing filed and served on Romero a notice of
deemed admissions. In the notice, Kidd Roofing asserted that
it served a request for admissions on Romero on March 28,
2017, Romero failed to timely respond, and the requested
admissions were deemed admitted as required by Rule 198.2 of
the Texas Rules of Civil Procedure. When Romero received the
notice of deemed admissions, he served Kidd Roofing with his
response to the requested admissions that same day. Romero
denied all sixteen of the requested admissions.
August 7, 2017, Kidd Roofing filed a combined traditional and
no-evidence motion for summary judgment on its claims. Kidd
Roofing supported its motion with Romero's deemed
admissions and late-filed response, as well as other
evidence. A hearing on the motion was set for September 18.
September 7, Romero filed an amended, verified answer. On
September 11, Romero timely filed a response to Kidd
Roofing's motion for summary judgment. Romero also filed
a motion to strike the deemed admissions attaching a copy of
his responses and a motion to dismiss Kidd Roofing's
business disparagement claim pursuant to the Texas Citizens
Participation Act (TCPA), The next day, one day after the filing
deadline, Romero filed his affidavit in support of his
response to the summary judgment motion along with a motion
for leave to file the affidavit. In the motion for leave,
Romero stated that the affidavit was intended to be included
in his summary judgment response but was omitted in the
e-filing of the document.
support of its summary judgment motion, Kidd Roofing relied
on a written contract, the unpaid invoice and related
correspondence, a copy of Romero's review on Angie's
List, and the following deemed admissions as evidence of
every assertion of fact made in support of its claims:
• "Kidd Roofing and [Romero] entered into a valid
agreement for the Work."
• "Kidd Roofing performed its obligations under the
contract by supplying the Work."
• "[Romero] breached [his] contract with Kidd
Roofing when [Romero] failed to instruct [his] insurance
carrier to include DR Kidd as an additional payee on the
check issued to pay for Kidd Roofing's work."
• "[Romero] breached [his] contract with Kidd
Roofing when [Romero] failed to pay Kidd Roofing the sum of
$6, 648.52 due and owing for the Work."
• "Romero published false disparaging words about
Kidd Roofing's business and its employees on Angie's
List with the intent of interfering with Kidd Roofing's
potential clients, business reputation and economic
Roofing also relied on the affidavit of its president and the
unverified answer Romero originally filed as additional
support for its sworn account claim. See Tex. R.
Civ. Proc. 185 (providing that if a defendant does not timely
file a verified denial, then "he shall not be permitted
to deny the claim, or any item therein"). Kidd Roofing
prayed for a judgment awarding it $6, 548.52 for the amount
owed, $10, 000.00 for business disparagement, and other
response, Romero argued that his affidavit raised fact issues
on the breach of contract and related claims. Romero also
argued that Kidd Roofing failed to support its business
disparagement claim with any evidence of special damages,
that Romero acted with malice, or that the published material
was false, citing Forbes Inc. v. Granada Biosciences,
Inc., 124 S.W.3d 167, 170 (Tex. 2003) (listing elements
of a business disparagement claim). Romero further asserted
that the lack of evidence of disparagement supported his TCPA
motion to dismiss, which he stated was filed separately.
Romero did not mention his motion to strike the deemed
admissions in his summary judgment response.
October 9, 2017, the trial court signed an order granting
Kidd Roofing's summary judgment motion without stating
the grounds for the ruling. The trial court ordered Romero to
pay Kidd Roofing $16, 548.52, plus pre- and post-judgment
interest. All other requested relief was denied.
filed a motion for new trial in which he again argued that
his affidavit raised fact issues precluding summary judgment
on each of Kidd Roofing's claims and that Kidd Roofing
was not entitled to a summary judgment. Romero also mentioned
having filed the motion to strike deemed admissions but did
not expressly argue that it should be granted. In response,
Kidd Roofing argued that the trial court had ...