Opinion
No. 10-03-00147-CV
Opinion Delivered and Filed August 17, 2005.
Appeal from the 270th District Court, Harris County, Texas, Trial Court No. 01-58745.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Andrew Davidoff entered into an employment contract with GX Technology (GXT), agreeing to render services for them in Jakarta, Indonesia. Before the end of the contract, GXT terminated the agreement. Thereupon, Davidoff filed an action against GXT for breach of the contract. GXT filed a no-evidence motion for summary judgment, and the court granted the motion. Davidoff appeals. We reverse.
No-Evidence Summary Judgment Motion
Davidoff argues in his sole issue that the trial court erred in granting GXT's no evidence motion for summary judgment because Davidoff presented sufficient evidence on each element of the claim.
We review the decision to grant or deny a summary judgment motion de novo. See Rosas v. Hatz, 147 S.W.3d 560, 563-64 (Tex.App.-Waco 2004, no pet.); Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). We apply the same standard in reviewing the grant or denial of a no-evidence summary judgment motion as we would in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Rosas, 147 S.W.3d at 564.
We review the summary judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, 118 S.W.3d at 751; Rosas, 147 S.W.3d at 564. A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant. King Ranch, 118 S.W.3d at 751; Rosas, 147 S.W.3d at 564. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, 118 S.W.3d at 751; Rosas, 147 S.W.3d at 564.
The elements for a breach of contract claim are (1) a valid, enforceable contract; (2) plaintiff's performance; (3) defendant's breach; and (4) plaintiff's damage as a result of the defendant's breach. Runge v. Raytheon E-Systems, Inc., 57 S.W.3d 562, 565 (Tex.App.-Waco 2001, no pet.). GXT's motion argued that there was no evidence for elements (2)-(4).
Plaintiff's Performance
GXT claims that Davidoff's affidavit in response to GXT's no evidence emotion is conclusory and no evidence of performance. Davidoff argues that GXT's objections are not preserved for our review. Citing our decision in Allen ex rel. B.A v. Albin, Davidoff argues that because the trial court did not specifically rule on GXT's objections to Davidoff's evidence, we cannot assume that the objections were implicitly sustained merely because the summary judgment was granted. See 97 S.W.3d 655, 663 (Tex.App.-Waco 2002, no pet.).
However, a conclusory objection is an objection of "substance." Harris County v. Smyly, 130 S.W.3d 330, 336 (Tex.App.-Houston [14th Dist.] 2004); City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex.App.-Dallas 1994), aff'd, 904 S.W.2d 656, 660-61 (Tex. 1995). Substantive objections, as opposed to "form" objections, do not require a written ruling, and the objection may be raised for the first time on appeal. Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex.App.-Waco 2003, no pet.); Dailey v. Albertson's, Inc., 83 S.W.3d 222, 225 (Tex.App.-El Paso 2002, no pet.); see also Albin, 97 S.W.3d at 663 (holding that a ruling from the trial court is required to preserve defects of "form.").
"A conclusory statement is one that does not provide the underlying facts to support the conclusion." Choctaw Props., L.L.C., 127 S.W.3d at 242. In his affidavit, Davidoff states, "My obligations under the Consulting Agreement were specifically enumerated in Paragraph 3 of the attached agreement and incorporated herein by reference. In addition to those responsibilities, I was in charge of the operations of [GXT's] Jakarta office. I discharged all of these responsibilities in a competent and diligent manner." GXT argues that this is a bare conclusion of performance. Also, it argues that because Davidoff was required under the contract to maintain written records of his compliance, the bare conclusion that he performed is not the "best Davidoff could muster." However, to defeat a no-evidence motion, the non-movant is not required to marshal its proof. Smith v. Mosbacker, 94 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2002, no pet.).
Davidoff incorporates his contract by reference and states that he diligently performed the duties listed there. He also lists specific work that was performed by the Jakarta office, of which he had previously stated he was in charge. While these paragraphs were used to support his claim that GXT breached the employment contract, they also support the contention that he performed under the contract. "An affidavit containing conclusory and subjective determinations of fact may constitute competent summary judgment evidence if the remaining statements contain sufficient factual information. . . ." General Prod. Co. v. Black Coral Inv., 715 S.W.2d 121, 123 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). Therefore, Davidoff's evidence of performance is not conclusory. Further, given the above he presented more than a scintilla of evidence that he performed under the contract. See Rosas, 147 S.W.3d at 564.
Breach of the Contract
Next, GXT argues that Davidoff presented no evidence that GXT breached the employment contract. The contract provided that either party could terminate the agreement in the event that the funds in the Jakarta accounts were insufficient to pay expenses. Davidoff attached to his affidavit an email sent to Davidoff from GXT informing him of the termination of the contract. The email stated that GXT would not be providing services in Indonesia because of greater competitive pressures. The email also directed Davidoff to pay his outstanding salary with current Jakarta funds. Davidoff argues that because the email does not list insufficient funds as the reason for terminating the contract, it is some evidence that GXT breached the contract.
Further, in response to GXT's argument that it terminated the contract legally because of insufficient funds, Davidoff argues that the Houston office did not credit the Jakarta office with certain profits so that it would seem that the Jakarta office had insufficient funds. In his affidavit, Davidoff listed work performed by the Jakarta office the profits of which were credited to the Houston office and Jakarta funds that were used to pay certain Houston expenses, but were not later reimbursed. Davidoff argued that had the Jakarta office been credited with this work, there would have been sufficient funds.
The email and the bookkeeping problems create more than a surmise or suspicion that GXT breached the employment contract with Davidoff, and thus constitute more than a scintilla of evidence. See Rosas, 147 S.W.3d at 564.
Damages
Finally, GXT argues that there is no evidence that Davidoff suffered damages from the alleged breach. In the termination email attached to Davidoff's affidavit, GXT directs Davidoff to pay his outstanding salary and commissions from the current funds and the remaining invoice payments. In his affidavit, Davidoff states that he did not have control of the accounting or Jakarta office funds and that he was "never paid in this fashion."
GXT claims that the statement "never paid in this fashion" is conclusory. However, Davidoff has personal knowledge of whether or not he was paid according to GXT's directions, and was restating a fact. See Hou-Tex., Inc. v. Landmark Graphic, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Further, Davidoff's affidavit references the termination email and the original consulting agreement stating the terms of his compensation. This provides more than a scintilla of evidence that Davidoff suffered damages due to GXT's alleged breach. See Rosas, 147 S.W.3d at 564.
Because Davidoff brought forth some evidence to prove each element of his breach of contract claim, the trial court erred in sustaining GXT's no-evidence summary judgment motion. Accordingly, we sustain Davidoff's only issue.
Conclusion
We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.
DISSENTING OPINION
This is a case where the majority stretches the evidence to save a party. I would not. On motion for rehearing, GX Technology points out that Davidoff's only "evidence" of damages, an element of his case attacked by GXT's no-evidence motion for summary judgment, is the statement "I was never paid in this fashion." Though the majority notes that Davidoff references the termination e-mail and the contract, I fail to see how these references provide any evidence on the issue of whether or not Davidoff suffered any damages. In its motion for rehearing, GXT challenged the majority's conclusion in the original opinion that Davidoff's affidavit testimony was some evidence of payment. Actually, in the original opinion, the Court had limited this affidavit testimony to "I was never paid."
The Court issued an opinion March 23, 2005 which is being withdrawn to issue the new opinion.
The limitation is significant. GXT, in addition to asserting the statement was conclusory, also asserted that the complete quote was inadequate to support the determination that Davidoff was not paid and, therefore, that he suffered damages. I share one of GXT's views of this evidence, and one of the majority's views as well. As the majority rightfully concludes — "I was never paid in this fashion" is not the type conclusory statement which constitutes no evidence. It is a statement, made by a person with personal knowledge of the event in question, Davidoff, as the recipient of payments from GXT, would be in the position to know whether or not he was ever paid in a certain manner. In particular, as Davidoff explains in his affidavit and by referencing the termination email, GXT had instructed Davidoff to pay himself using current funds and payments on outstanding invoices. Thus, his statement "I was never paid in this fashion" could indicate a couple of different things. It could mean Davidoff had never previously been paid from current funds and payments on invoices, or it could mean that at no time subsequent to the instruction and prior to the affidavit did Davidoff receive compensation from current funds or from payments on outstanding invoices.
But what does not flow from the statement is an inference that Davidoff was never paid in any manner. If Davidoff was never paid, at all, in any manner, for his services, it would have been extraordinarily easy for him to say so. He did not. He only negated one source/method/type of payment. We are left to speculate that he was not paid by any other source or method. Speculation is not evidence. While I have some questions about the other elements, the absence of proof of any damages in response to GXT's no evidence motion for summary judgment would cause me to affirm the trial court's judgment. Because the majority determines the trial court erred and reverses the judgment, I respectfully dissent.