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Romero v. D. R. Kidd Company, Inc.

Court of Appeals of Texas, Fourteenth District

July 9, 2019

OSCAR ROMERO III, Appellant
v.
D. R. KIDD COMPANY, INC. D/B/A KIDD ROOFING, Appellee

          On Appeal from the 200th District Court Travis County, Texas Trial Court Cause No. D-1-GN-17-001123

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          KEN WISE, JUSTICE

         A 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 and remand.

         I. Background

         In 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.[1] 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 general denial.

         On June 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.

         On 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.

         On 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), [2]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.

         In 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 interest."

         Kidd 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 relief.

         In his 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.

         On 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.

         Romero 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 ...


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