Opinion
No. 05-20-00382-CV
03-16-2021
J & A COATING, LLC, Appellant v. PPG INDUSTRIES, INC., Appellee
On Appeal from the 193rd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-18-09326
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Myers
J & A Coatings, LLC, appeals the order granting PPG Industries, Inc.'s motion for summary judgment on PPG's claims for money had and received and unjust enrichment. J & A brings three issues on appeal contending the trial court erred by granting PPG's motion for summary judgment because (1) the existence of a written contract barred PPG's claims for equitable relief; (2) evidence in the summary judgment record raised a genuine issue of material fact; and (3) PPG's claims were barred by the statute of limitations. We affirm the trial court's judgment.
BACKGROUND
In 2014, PPG hired J & A to perform coating work on its silos. J & A provided an estimate that the work would cost PPG $152,000. In April 2015, J & A submitted its first invoice of $38,000 for partial payment of the work, and PPG paid it. On April 30, 2015, J & A sent PPG a second invoice for $110,375.85. In May 2015, J & A sent PPG a third invoice, also for $110,375.85. In July 2015, PPG sent J & A two payments of $110,375.85. PPG believed the third invoice was a duplicate of the second invoice, and PPG asked J & A to refund one of the $110,375.85 payments. J & A refused to do so and asserted the third invoice was for "downtime" during the project that totaled $110,375.85.
In 2018, PPG filed suit against J & A alleging claims including money had and received and unjust enrichment and seeking damages of $110,375.85. J & A filed a general denial, which was signed by J & A's attorney. PPG moved for summary judgment on its claims. J & A filed its "Pro Se Response" to the motion for summary judgment signed by Felecia Gomez as J & A's "Female Minority Owner." The trial court granted PPG's motion for summary judgment, and the court stated in a footnote in the order that J & A "is not represented by an attorney and, consequently, this Court has not considered the response filed on Defendant[']s behalf by its owner."
SUMMARY JUDGMENT
In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).
EXISTENCE OF EXPRESS CONTRACT
In its first issue, J & A contends the trial court erred by granting the motion for summary judgment on PPG's claims for money had and received and unjust enrichment because those are equitable claims that do not apply when there is a written contract between the parties.
Unjust enrichment and money had and received are quasi-contract theories that are equitable in nature. See Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683 (Tex. 2000); Stewart Title Guar. Co. Mims, 405 S.W.3d 319, 339 (Tex. App.—Dallas 2013, no pet.). Unjust enrichment occurs when the person sought to be charged has wrongfully secured a benefit or has passively received one that it would be unconscionable to retain. Stewart Title, 405 S.W.3d at 339. "To prove a claim for money had and received, a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him." Id. (quoting MGA Ins. Co. v. Charles R. Chesnutt, P.C., 358 S.W.3d 808, 814 (Tex. App.—Dallas 2012, no pet.)). Generally, when an express contract covers the subject matter of the parties' dispute, a party cannot recover under a quasi-contract theory. Fortune Prod. Co., 52 S.W.3d at 684. There are exceptions to this general rule, including for overpayments. See Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 469-70 (Tex. 1998). PPG's theory of recovery was that it had paid twice for the same work, i.e., that it had overpaid. Therefore, the defense of the existence of an express contract does not apply.
We overrule J & A's first issue.
EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT
In its second issue, J & A contends the trial court erred by granting the motion for summary judgment because J & A presented evidence raising a genuine issue of material fact. J & A asserts it presented evidence that the third invoice was not a duplicate of the second invoice but was a billing for downtime created by PPG and was not covered by the second invoice.
J & A cites evidence attached to its response to PPG's motion for summary judgment. J & A's non-attorney owner signed the response. PPG filed a motion to strike the response because it was not signed by a licensed attorney. The trial court did not expressly grant the motion to strike. Instead, the court stated in its order granting the motion for summary judgment that it considered "the motion, the reply brief, the arguments of counsel, and the applicable legal authority," but the court did not state it considered J & A's response. The court added a footnote after the words "legal authority" stating, "Defendant J & A Coating, L.L.C. is not represented by an attorney and, consequently, this Court has not considered the response filed on Defendant[']s behalf by its owner."
Legal entities, including limited liability companies, generally may appear in district or county court only through a licensed attorney. See Kunstoplast of Am. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex. 1996); Sherman v. Boston, 486 S.W.3d 88, 95-96 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A non-attorney may perform certain ministerial acts for a limited liability company, such as depositing cash with a clerk in lieu of a cost bond. See Kunstoplast, 937 S.W.2d at 456. A company's response to a motion for summary judgment is not a ministerial act, and it must be made through an attorney. See Computize, Inc. v. NHS Commc'ns Group, Inc., 992 S.W.2d 608, 612 (Tex. App.—Texarkana 1999, no pet.); see also McClane v. New Caney Apartments, 416 S.W.3d 115, 119-20 (Tex. App.—Beaumont 2013, no pet.) (corporation could not be represented in county court by its non-attorney property manager on its claim for forcible detainer). Allowing a non-attorney to present a company's claim would permit the unlicensed practice of law. Sherman, 486 S.W.3d at 95. A non-attorney's attempt to appear for a limited liability company has no legal effect, and any evidence presented by the non-attorney cannot be considered. See id. at 95-96 ("Because Boston is not an attorney, his presentation had no legal effect, thereby rendering the evidence legally insufficient to support a judgment in favor of Mr. Day Rents.").
J & A argues PPG waived J & A's failure to be represented by an attorney because the trial court did not expressly rule on PPG's motion to strike the response. Instead, the court stated in a footnote to the order granting summary judgment that the court would not consider the pro se response. J & A cites no authority holding that a trial court must consider a business entity's non-attorney legal filings absent a sustained objection from the opposing party. Such a rule might apply if the failure to be represented by counsel were merely a formal defect. See Hydroscience Techs. Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 793 (Tex. App.—Dallas 2013, pet. denied) ("Formal defects may be waived by failure to object, and if waived, the evidence is considered . . . ."). But evidence that is substantively defective "is incompetent and cannot be considered under any circumstances." Id. Evidence presented by a non-attorney on behalf of a business entity is incompetent and cannot be considered. See McClane, 416 at 121; Sherman, 486 S.W.3d at 96. Therefore, J & A's response to the motion for summary judgment and the evidence attached to it were substantively defective and could not be considered by the trial court regardless of whether PPG objected and obtained a ruling on its objection. See Sherman, 486 S.W.3d at 96.
We conclude appellant has not shown the summary judgment evidence raised a genuine issue of material fact. We overrule appellant's second issue.
LIMITATIONS
In its third issue, J & A contends the trial court erred by granting PPG's motion for summary judgment because PPG's claims were barred by the statute of limitations. Limitations is an affirmative defense that is waived if it is not pleaded. Brown v. EMC Mortg. Corp., 326 S.W.3d 648, 653 (Tex. App.—Dallas 2010, pet. denied); Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 814-15 (Tex. App.—Dallas 2008, no pet.). J & A pleaded only a general denial and did not allege any affirmative defenses. J & A first raised the issue of limitations in its motion for new trial (where it was represented by counsel), stating that limitations would have been raised had J & A been allowed time to retain new counsel. However, limitations may not be raised for the first time in a motion for new trial. Hollingsworth, 274 S.W.3d at 815.
J & A argues that even when the statute of limitations is not pleaded or raised in a response to a motion for summary judgment, the defense should be enforced by the trial court sua sponte in an equitable cause of action when the record clearly shows the cause of action would be barred by limitations. J & A quotes this statement from the supreme court:
The equitable power of the court exists to do fairness and is flexible and adaptable to particular exigencies, "so that relief will be granted when, in view of all the circumstances, to deny it would permit one party to suffer a gross wrong at the hands of the other."Johnson v. Cherry, 726 S.W.2d 4, 8 (Tex. 1987) (quoting Warren v. Osborne, 154 S.W.2d 944, 946 (Tex. App.—Texarkana 1941, writ ref'd)). However, neither Johnson nor Warren imposed on a trial court the duty to enforce an unpleaded affirmative defense that was first raised in a motion for new trial. We decline to do so in this case.
We overrule J & A's third issue.
CONCLUSION
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE 200382F.P05
JUDGMENT
On Appeal from the 193rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-18-09326.
Opinion delivered by Justice Myers. Justices Osborne and Carlyle participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee PPG INDUSTRIES, INC. recover its costs of this appeal from appellant J & A COATING, LLC. Judgment entered this 16th day of March, 2021.