Opinion
NO. 12-17-00072-CV
11-22-2017
RONDAL L. HITE D/B/A METRON CONSTRUCTION, APPELLANT v. ARK-LA-TEX ELECTRIC, INC., APPELLEE
APPEAL FROM THE 188TH JUDICIAL DISTRICT COURT GREGG COUNTY , TEXAS
MEMORANDUM OPINION
Rondal L. Hite d/b/a Metron Construction (Hite) appeals the trial court's order granting summary judgment in favor of Ark-La-Tex, Inc. (Ark-La-Tex). Hite raises two issues on appeal. We affirm.
BACKGROUND
Hite served as the general contractor on a project for improvements made to Top Fun, an indoor entertainment center in Longview, Texas, owned by Southern Sports Entertainment, L.L.C. and Southern Sports Holdings, Inc. (Southern Sports). Hite subcontracted with Ark-La-Tex, an electrical company, to provide materials and services on the project.
Ark-La-Tex provided $86,673.94 worth of goods and services to Hite for the project. Hite paid Ark-La-Tex $18,750.40, but failed to pay $67,823.54. Consequently, on August 8, 2016, Ark-La-Tex filed a lawsuit against Hite for payment of its sworn account and breach of contract. Ark-La-Tex attached an affidavit from Jerry Jay Nance, the president of Ark-La-Tex, itemizing $67,823.54 in past due and presently payable charges including all lawful offsets, payments, and credits. On November 8, Hite filed an unverified general denial.
On January 4, 2017, Ark-La-Tex filed a motion for summary judgment on grounds that Hite's failure to file a verified denial entitled Ark-La-Tex to judgment as a matter of law. The court set the motion for a hearing on February 10. On January 16, Hite sought leave from the court to join Southern Sports to the suit, alleging that Southern Sports failed to pay for Hite's work and is liable for any and all damages Hite owes to Ark-La-Tex. The court granted Hite permission to join Southern Sports, and Hite filed a third party petition joining Southern Sports on January 17. Hite did not file a response to Ark-La-Tex's summary judgment motion. On February 10, the day of the summary judgment hearing, Hite filed a motion for continuance on grounds that Southern Sports had not yet been served with the third party petition. Ark-La-Tex opposed the continuance. The trial court denied the continuance and granted Ark-La-Tex's motion for summary judgment.
Thereafter, Ark-La-Tex moved to sever its claims against Hite from the suit. Hite opposed the severance. Contemporaneously, Ark-La-Tex filed a cross-claim against Southern Sports based upon the judgment rendered against Hite. The trial court granted the severance and entered an appealable final judgment in favor of Ark-La-Tex in the amount of $67,823.54 for the sworn accounts and pre-judgment interest, and $2,448.53 in attorney's fees. This appeal followed.
MOTION FOR CONTINUANCE
In Hite's first issue, he argues that the trial court erred in denying his motion to continue the hearing on Ark-La-Tex's motion for summary judgment. Standard of Review and Applicable Law
The rules of civil procedure state that a trial court may grant a continuance on sufficient cause supported by affidavit, by consent of the parties, or by operation of law. TEX. R. CIV. P. 251; see also White v . Mellon Mortg. Co., 995 S.W.2d 795, 803 (Tex. App.—Tyler 1999, no pet.). We review a trial court's ruling on a motion for continuance of a summary judgment hearing for an abuse of discretion. Chico Auto Parts & Serv. v. Crockett , 512 S.W.3d 560, 578 (Tex. App.—El Paso 2017, pet. denied); see also BMC Software Belgium , N.V. v. Marchand , 83 S.W.3d 789, 800 (Tex. 2002). We will not disturb the trial court's ruling on appeal unless the trial court acted without reference to guiding rules or principles, or if its action "was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law[.]" Crocket , 512 S.W.3d at 578 (quoting D.R. Horton-Texas , Ltd. v. Savannah Prop. Assoc., L.P., 416 S.W.3d 217, 222 (Tex. App.—Fort Worth 2013, no pet.)).
In a summary judgment context, it is generally not an abuse of discretion to deny a motion for continuance if the party has received the twenty-one days notice required by Rule 166a(c) of the rules of civil procedure. MKC Energy Invs., Inc. v. Sheldon , 182 S.W.3d 372, 379 (Tex. App.—Beaumont 2005, no pet.); Mellon Mortg. Co., 995 S.W.2d at 804; TEX. R. CIV. P. 166a(c). Furthermore, allegations stated in general terms, without specifics, are insufficient to support a motion for continuance. See Blake v . Lewis , 886 S.W.2d 404, 409 (Tex. App.—Houston [1st Dist.] 1994, no writ). When the reason stated to support a motion for continuance is unnecessary and irrelevant to the determination of the legal issues in the case, it is not an abuse of discretion to deny the motion. See Mellon Mortg . Co., 995 S.W.2d at 804.
To be entitled to summary judgment under Rule 166a(c), the movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see also Ellis v . Reliant Energy Retail Servs., L.L.C., 418 S.W.3d 235, 245 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A plaintiff's motion for summary judgment must conclusively prove all essential elements of its claim. Ellis , 418 S.W.3d at 245. If the movant's motion and summary judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Id. at 246.
Rule 185 of the rules of civil procedure describes the evidence required to establish a prima facie right to recovery or defense for a suit on a sworn account. TEX. R. CIV. P. 185; Tandan v. Affordable Power , L.P., 377 S.W.3d 889, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.). If a plaintiff complies with the requirements of Rule 185, he is entitled to judgment as a matter of law unless the defendant files a verified denial. Tandan , 377 S.W.3d at 894. A defendant's failure to file a verified denial "conclusively establishes that there is no defense to the suit on the sworn account." Id. (quoting Powers v. Adams , 2 S.W.3d 496, 498 (Tex. App.—Houston [14th Dist.] 1999, no pet.)); TEX. R. CIV. P. 185.
Privity is an essential element for recovery in any action based on a contract; a breach of contract action usually requires privity between the injured party and the party sought to be held liable. Sanders v. Total Heat & Air , Inc., 248 S.W.3d 907, 912 (Tex. App.—Dallas 2008, no pet.) In construction contracts, in the absence of an express agreement to the contrary, a subcontractor is not in privity with the owner and thus looks to the general contractor alone for payment. Id. at 913; see also Interstate Contracting v . City of Dallas , 135 S.W.3d 605, 618 (Tex. 2004). Persons performing services or providing materials to a general contractor are paid by the general contractor, not the owner, even if the work is done under the direction of and in accordance with the plans furnished by the owner. Sanders , 248 S.W.3d at 913. Analysis
In this case, Hite moved for a continuance of the summary judgment hearing because Southern Sports had not been served and "Ark-La-Tex's claim should not be adjudicated until Southern Sports Holdings appears and asserts any defenses it may have to payment."
The record indicates that Ark-La-Tex notified Hite of the hearing on January 4, within the twenty-one day notice requirements of Rule 166a. See Sheldon , 182 S.W.3d at 379; see also Mellon Mortg . Co., 995 S.W.2d at 804; TEX. R. CIV. P. 166a(c). Furthermore, Hite's motion contains no specific reasoning explaining why the continuance is necessary. See Blake , 886 S.W.2d at 409. Hite, as general contractor, was directly liable to Ark-La-Tex, as subcontractor, and thus, any defenses that Southern Sports may have asserted against payment would not be relevant to Ark-La-Tex's claims against Hite. See Sanders , 248 S.W.3d at 913; see also Mellon Mortg . Co., 995 S.W.2d at 804. Moreover, Hite did not file a verified denial of Ark-La-Tex's sworn account, which conclusively establishes that Hite had no defense to the suit. Tandan , 377 S.W.3d at 894; TEX. R. CIV. P. 185. Nor did Hite file a response to Ark-La-Tex's motion for summary judgment. When, as in this case, a defendant fails to file a verified denial to a sworn account, the sworn account is received as prima facie evidence of the debt and the plaintiff is entitled to summary judgment on the pleadings. PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d 756, 765 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Accordingly, Hite was entitled to summary judgment as a matter of law. See id .; see also Ellis , 418 S.W.3d at 245; Tandan , 377 S.W.3d at 894; TEX. R. CIV. P. 166a(c), 185.
For the reasons stated above, we hold that the trial court did not abuse its discretion in denying Hite's motion for continuance. We overrule Hite's first issue.
SEVERANCE
In Hite's second issue, he contends that the trial court erred in granting Ark-La-Tex's motion to sever its claims against Hite. He argued to the trial court that the severance of Ark-La-Tex's claim from the suit creates a substantial risk of his exposure to inconsistent obligations. On appeal, Hite argues that the claim was not properly severable because it involves the same facts and issues as his claim against Southern Sports. Standard of Review and Applicable Law
Rule 41 of the Texas Rules of Civil Procedure states that "[a]ny claim against a party may be severed and proceeded with separately." Guar. Fed. Sav. Bank v. Horseshoe Operating , 793 S.W.2d 652, 658 (Tex. 1990); TEX. R. CIV. P. 41. This rule grants the trial court broad discretion in the matter of severance and consolidation of causes. Guar. Fed. Sav. Bank , 793 S.W.2d at 658. We review a trial court's order granting a severance for an abuse of discretion. Id.
A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. F.F.P. Operating Partners , L.P. v. Duenez , 237 S.W.3d 680, 693 (Tex. 2007). The Supreme Court has stated that the controlling reasons to allow a severance of a claim is to do justice, avoid prejudice, and increase convenience. Id. We particularly focus on the issue of interrelatedness of the claims being severed. In re State , 355 S.W.3d 611, 614 (Tex. 2011). Analysis
Hite argues that Ark-La-Tex's claim against him was not properly severable because the claim involves the same facts and issues as Hite's claim against Southern Sports. In support of this argument he directs our attention to two cases from our sister courts which found severance of a claim an abuse of discretion. However, the underlying facts of both cases are distinguishable from this case because they involve the severance of compulsory counterclaims. See Rucker v . Bank One of Tex., N.A., 36 S.W.3d 649, 651-52 (Tex. App.—Waco 2000, pet. denied) (guarantors' counterclaims against bank, which sued them for amount due on delinquent promissory note, stemmed from the same negotiations and contracts which were the subject matter of the primary suit initiated by the bank and the facts necessary to prevail on the counterclaim were identical to those necessary to defend against the primary suit on the basis of the guarantors' asserted affirmative defenses of fraudulent inducement and breach of contract); see also Fuentes v . McFadden , 825 S.W.2d 772, 780 (Tex. App.—El Paso 1992, no writ) (defendant's counterclaim against plaintiff for fraud and violations of the Deceptive Trade Practices Act were compulsory and improperly severed from the original breach of contract suit).
In this case, the controversy involves more than one cause of action and the severed claim is properly the subject of its own lawsuit. See Duenez , 237 S.W.3d at 693. Nor is the severed claim so interwoven with the remaining claims that it involves the same facts and issues. See Guar . Fed. Sav. Bank , 793 S.W.2d at 658. According to Hite's third party petition, Southern Sports owes $92,121.77 to Hite for breach of contract separate from the $67,823.54 Hite owes to Ark-La-Tex for its goods and services. Thus, any claims remaining in the lawsuit would logically stem from the contractual relationship between Hite and Southern Sports, whereas, Ark-La-Tex's severed claim stemmed from a suit on a sworn account claim against Hite. Accordingly, the facts and circumstances of these separate claims are not identical and separate proof is needed for each claim. See Saxer v . Nash Phillips—Copus Co. Real Estate , 678 S.W.2d 736, 739-40 (Tex. App.—Tyler 1984, writ ref'd n.r.e.). Moreover, the legal issues raised for these separate claims are not identical. See In re State , 355 S.W.3d at 614. Therefore, the severed claim was not so interwoven with the remaining claims that they involve the same facts and legal issues. See Guar . Fed. Sav. Bank , 793 S.W.2d at 658. Thus, we hold that the trial court did not abuse its discretion in severing Ark-La-Tex's claim against Hite from Hite's claim against Southern Sports. Hite's second issue is overruled.
DISPOSITION
Having overruled Hite's two issues, the judgment of the trial court is affirmed.
JAMES T. WORTHEN
Chief Justice Opinion delivered November 22, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 188th District Court of Gregg County, Texas (Tr.Ct.No. 2016-1526-A-1)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the Appellant, RONDAL L. HITE D/B/A METRON CONSTRUCTION, for which execution may issue, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.