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Amer-Consolidated Roofing, Inc. v. Key City Veterinary Clinic, Inc.

Court of Appeals of Texas, Eleventh District

August 30, 2019

AMER-CONSOLIDATED ROOFING, INC. D/B/A TOP WALL CONSTRUCTION, Appellant
v.
KEY CITY VETERINARY CLINIC, INC., Appellee

          On Appeal from the County Court at Law Taylor County, Texas Trial Court Cause No. 22, 909

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1] Willson, J., not participating.

          MEMORANDUM OPINION

          KEITH STRETCHER, JUSTICE.

         This is an appeal from a summary judgment in favor of Appellee, Key City Veterinary Clinic, Inc. (KCV) and against Appellant, Amer-Consolidated Roofing, Inc. d/b/a Top Wall Construction (TWC). In two issues, TWC contends that the trial court erred when it (1) granted KCV's motion for summary judgment on TWC's original breach-of-contract claim and (2) granted summary judgment on TWC's entire case because KCV's motion did not address TWC's newly pleaded claims of quantum meruit and unjust enrichment, which TWC added after KCV filed its motion but before the hearing on the motion. Because we conclude that the trial court properly granted summary judgment on TWC's breach-of-contract claim and did not err when it granted summary judgment on the entire case, we affirm.

         Background Facts

         In November 2015, TWC filed suit against KCV for breach of contract. The alleged contract in dispute is entitled "Service Contract" (the Contract). Pursuant to the Contract, KCV agreed to allow TWC to inspect KCV's property (specifically, the roof) to "[d]etermine if the roof has hail damage," "[d]etermine the life expectancy of the roof," and "[e]stimate the replacement cost." The Contract stated that the "inspection will be free of charge." The Contract then expressed the following two provisions immediately afterward:

In consideration for TWC acting as the owner's project manager and assisting in the acquisition of funds, the Owner agrees to allow TWC to perform the work arising from any weather caused property damage[.]
In return for these services, the Owner will enter into a production contract that allows TWC to perform the work to repair the damaged property equal to the replacement cost value of the damage.

         The Contract concluded with two signatures: one presumably by the "Owner/Agent" of KCV and the other by "Top Wall Construction."

         In its original petition, TWC alleged that it entered into a valid and enforceable contract with KCV, that it fully performed its obligations under the Contract, and that it incurred damages as a result of KCV's failure to perform KCV's obligations under the Contract-namely, failing to enter into a production contract with TWC and failing to retain TWC to perform the repair work. According to TWC, it suffered "lost income" damages of $19, 604.88 because KCV failed to enter into a production contract and allow TWC to perform the repair work. In response to TWC's original petition, KCV generally denied the allegations.

          In May 2017, KCV filed its traditional and no-evidence motion for summary judgment. In relevant part, KCV argued that the Contract was invalid for lack of consideration and that TWC failed to show any evidence of its lost profits. The trial court set a hearing on KCV's motion for June 9, 2017.

         On June 2, 2017, TWC filed its First Amended Original Petition to include two additional causes of action: quantum meruit and unjust enrichment. Despite the amendment, KCV did not amend its motion for summary judgment to address the additional causes of action.

         After the hearing on the motion, the trial court granted summary judgment in favor of KCV. The trial court also rendered final judgment in favor of KCV. In doing so, the trial court ordered that TWC take nothing by way of its claims against ...


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