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Date: 09-15-2022
Case Style:
Said Nasr v. Fidelis Owubu, et al
Case Number: 01-20-00631-CV
Judge:
Court:
Court of Appeals For The First District of Texas
On appeal from County Court at Law No. 2 of Harris County
Plaintiff's Attorney:
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Defendant's Attorney: Robert Glen Moll
Description: C
Houston, Texas – Breach of Contract lawyer represented Appellees with suing for breach of contract.
Fidelis Owobu owns Omoba Investments, LLC. Owobu and his company
purchase luxury vehicles in Houston, export them, and sell them in Nigeria. One of
Owobu’s vehicles was a 2013 Rolls Royce Ghost that needed repairs.
Said Nasr is a mechanic who conducts business under the name Precision
General. In 2017, Owobu brought the Ghost to Nasr for repairs. According to
Owobu, his company paid Nasr $10,904 for parts and he paid $5,000 for labor in
advance of the repairs. Nasr did not, however, repair the vehicle. He returned the car
to Owobu, but he did not refund the amounts that had been paid.
Owobu and Omoba Investments filed suit against Nasr for breach of contract
on March 9, 2020. They alleged that they had paid Nasr for repairs to the vehicle,
but Nasr did not make the repairs and he did not return the money they had advanced.
In their original petition, they alleged that all conditions precedent to suit had
occurred. They also specifically alleged that they gave notice of their claim to Nasr
more than thirty days before filing suit, but Nasr failed to make any payment, thus
entitling Owobu and Omoba Investments to attorney’s fees under Civil Practice and
Remedies Code Chapter 38.
On April 6, 2020, Nasr answered and generally denied the allegations in
Owobu’s petition. This answer was not verified.
Owobu and Omoba Investments moved for traditional summary judgment on
their breach of contract claim on June 4, 2020, less than three months after they filed
their original petition. As summary judgment evidence, they attached records
concerning the vehicle, including a price quote for parts; a work order; two checks
from Omoba Investments to Nasr totaling $10,904 for parts; a check from Owobu to
4
Nasr for $5,000 as a partial payment for labor; and a tow truck slip from when the
car was towed from Precision General to Owobu’s residence. They also attached a
declaration from their counsel, in which counsel declared that he had spent ten hours
on the case and charged a total of $2,000. Counsel further declared that a total of
$15,000 in appellate-level attorney’s fees would be reasonable and necessary.
The summary judgment evidence also included a transcript of testimony that
Nasr gave in October 2019 in a federal bankruptcy proceeding involving Owobu.
Nasr was not a party to this proceeding, and he was not represented by counsel when
he testified. In this proceeding, Nasr testified that he performed some work on the
Ghost and obtained the needed parts from the dealership. After Owobu had already
taken possession of the car again, Nasr proposed that Owobu bring the car back and
allow Nasr to install the parts, but Owobu was out of the country at the time. Nasr
ultimately returned the parts to the dealership. When asked whether he still had the
money that Owobu paid him for the parts, Nasr replied, “That’s no doubt. Yes, sir.”
Nasr later stated, “I’m not saying that he’s not entitled to this money, you know,
that’s not what we’re here about.” He agreed that Owobu was entitled to a refund,
but he did not know how much he had spent on labor.
Nasr filed a response to the summary judgment motion and requested
additional time before submission of the motion. Nasr noted that the case had been
on file for less than four months, the parties had been ordered to mediation but that
5
had not yet occurred, and discovery was still outstanding. Nasr requested an
additional sixty days before a hearing on the motion so he could have the benefit of
Owobu’s answers to written discovery. Nasr did not file an affidavit supporting his
request for additional time.
Regarding the merits of the summary judgment motion, Nasr argued that
Owobu did not meet his summary judgment burden to establish his breach of
contract claim as a matter of law. He pointed out that Owobu did not submit any
banking records showing payments made to Nasr; instead, Owobu relied only on
“front copies of unnegotiated handwritten checks.” Nasr did not challenge Omoba
Investments’ capacity to bring suit.
As summary judgment evidence, Nasr submitted two affidavits: one executed
in October 2018, in connection with the federal bankruptcy proceeding, and one
executed in June 2020, after Owobu moved for summary judgment.1
In his first
affidavit, Nasr agreed that Owobu brought him a car in need of repairs and that, after
Nasr provided a quote, Owobu authorized repairs. He averred that “[t]here was a
great deal of work to be done requiring additional advance payments from Mr.
1
In their response, Owobu and Omoba Investments objected to portions of Nasr’s
first affidavit and the entirety of Nasr’s second affidavit. In part, they argued that
the affidavits contradicted Nasr’s testimony in federal court, and therefore the
affidavits should be disregarded as sham affidavits. The trial court did not rule on
these objections.
6
[Owobu] for parts as work progressed.” Nasr did not assign a dollar amount to the
labor that he performed on the vehicle.
In his second affidavit, Nasr averred that he had not been represented by
counsel when he testified in the bankruptcy proceeding and the excerpted testimony
did not “fully and accurately reflect all of the details of [his] dealing with Fidelis
[Owobu] relating to the Rolls Royce.” Nasr stated that he never agreed to provide
Owobu with “free labor, free mechanical estimates, free storage and security, or free
transportation of the Rolls Royce in question.” Nasr also averred that Owobu
attempted to involve him in “what appeared to be an improper series of transactions
involving” the car, but Nasr “refused to become involved.”
Owobu opposed Nasr’s request for a continuance. He argued that Nasr had no
grounds for a continuance of the summary judgment proceedings, Nasr’s request for
a continuance did not comply with the requirements in the rules of civil procedure,
Nasr failed to specify what discovery was still needed, and Nasr’s requested
discovery was not relevant to any issue in the proceeding.
On June 29, 2020, the trial court rendered summary judgment in favor of
Owobu and Omoba Investments. The court awarded $15,904 in damages, pre- and
post-judgment interest, and $2,000 in trial-level attorney’s fees. The court also
awarded a total of $15,000 in conditional appellate-level attorney’s fees.
7
Nasr filed a motion for new trial, arguing that the trial court should not have
granted summary judgment without allowing a reasonable time for discovery. He
also argued that the court should not have ruled on the motion in light of the
COVID-19 pandemic and the related local and statewide restrictions on public
gatherings. Nasr further argued that Owobu did not meet his summary judgment
burden because he offered no affirmative evidence to support his breach of contract
claim, and he offered no evidence to rebut Nasr’s affidavits. After Owobu responded
to this motion, Nasr filed a reply and argued that the court’s ruling on the summary
judgment motion “in an expedited manner” violated Nasr’s due process rights.
The trial court denied Nasr’s motion for new trial. This appeal followed.
Summary Judgment on Breach of Contract
In his first issue, Nasr argues that the trial court erred by granting summary
judgment in favor of Owobu and Omoba Investments on their breach of contract
claim.
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. Odyssey 2020
Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021). In
a traditional summary judgment motion, the movant bears the burden to establish
that no genuine issue of material fact exists and he is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c). When a plaintiff moves for summary judgment on
8
his own cause of action, he must conclusively prove all essential elements of his
claim as a matter of law. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.—
Houston [14th Dist.] 2018, no pet.).
Evidence is conclusive if reasonable people could not differ in their
conclusions. Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex.
2017); see City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005) (stating that
undisputed evidence allowing only one logical inference can be viewed only in one
light and reasonable jurors can reach only one conclusion from it). If the summary
judgment movant establishes his entitlement to judgment, the burden shifts to the
nonmovant to present evidence sufficient to raise a genuine issue of material fact.
Leonard, 551 S.W.3d at 909; see Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex.
2018).
Summary judgment is improper if the nonmovant brings forth more than a
scintilla of probative evidence to raise a fact issue. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003). The nonmovant presents more than a scintilla of
evidence when the evidence rises to a level that would enable reasonable and fairminded people to differ in their conclusions. Id. When reviewing a summary
judgment ruling, we take as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.
9
Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (quoting Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).
B. Analysis
In contending that the trial court erred in granting summary judgment, Nasr
argues that the summary judgment record did not include sufficient evidence for the
trial court to determine the existence of a contract, the parties to the contract, the
terms of the contract, or when the contract was breached and by whom.
The essential elements of a breach of contract claim are: (1) the existence of
a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach
of the contract by the defendant; and (4) damages sustained as a result of the breach.
AKIB Constr. Inc. v. Shipwash, 582 S.W.3d 791, 806 (Tex. App.—Houston [1st
Dist.] 2019, no pet.); APMD Holdings, Inc. v. Praesidium Med. Prof’l Liab. Ins. Co.,
555 S.W.3d 697, 707 (Tex. App.—Houston [1st Dist.] 2018, no pet.). A breach of
contract occurs when a party fails or refuses to do something it has promised to do.
AKIB Constr., 582 S.W.3d at 806.
The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a
meeting of the minds, (4) each party’s consent to the terms, and (5) execution and
delivery of the contract with the intent that it be mutual and binding. Savoy v. Nat’l
Collegiate Student Loan Tr. 2005-3, 557 S.W.3d 825, 835 (Tex. App.—Houston [1st
10
Dist.] 2018, no pet.). For a contract to be enforceable, it must be sufficiently certain
to enable a court to determine the rights and responsibilities of the parties. Id.
In Jones v. Star Houston, Inc., this Court addressed whether Jones—the
nonmovant in the summary judgment proceedings—presented sufficient evidence
demonstrating the existence of a contract such that summary judgment on his breach
of contract claim against Star Motor was improper. See 45 S.W.3d 350, 354–55 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). Jones purchased a vehicle from Star Motor
and took the car back to the dealership for repair of a dashboard brake light. Id. at
352. The hood of the car was damaged while in the dealership’s possession. Id. Jones
sued Star Motor for breach of warranty, breach of contract, negligence, gross
negligence, and DTPA violations. Id.
Star Motor moved for summary judgment on the breach of contract claim,
arguing that Jones could not identify one or more essential elements of a contract.
Id. at 354. In response, Jones offered a copy of Star Motor’s repair order, deposition
testimony, and an affidavit to prove that a contract existed between the parties. Id.
The repair order was a printed form “with the handwritten specifics of Jones’s
vehicle’s repair needs (‘Brake Light on Dash Flashing’).” Id. We concluded that this
evidence was “sufficient to implicate the existence of a contract.” Id.; see also
Ingram v. D.C. Rachal Ford, Inc., 545 S.W.2d 886, 888–89 (Tex. App.—Corpus
Christi–Edinburg 1976, writ dism’d) (concluding, in venue case, that repair order—
11
which was in writing, expressly authorized auto shop to repair car, and particularly
described car—was “sufficiently certain to enable a court to determine the legal
obligations of the parties thereto”). Ultimately, we held that Jones had raised a fact
issue on his breach of contract claim and remanded the claim for further proceedings.
Jones, 45 S.W.3d at 355, 357.
Here, Owobu and Omoba Investments moved for summary judgment on their
own breach of contract claim. As summary judgment evidence, they attached a
printed work order that included handwritten notations describing the make and
model of the vehicle, its vehicle identification number, a general description of the
necessary work, and an estimate of the cost of necessary parts and labor. The work
order also had Owobu’s address handwritten in the corner and had a photocopy of
his driver’s license. Owobu signed the work order under a paragraph stating that he
authorized the “above repairs.” Owobu also attached a printed copy of a list of parts
for the vehicle and a quoted price that matched the price stated for parts on the work
order. This document stated that the parts were sold to Omoba Investments.
Additionally, Owobu attached copies of two checks, payable to Nasr from Omoba
Investments, for a total of $10,904 for parts “paid in full.” A copy of a third check
was payable to Nasr from Owobu for $5,000 as a “part payment for labor.”
Owobu also attached an excerpt from testimony that Nasr gave in a federal
bankruptcy proceeding. Nasr testified that after Owobu picked up his car, which had
12
not been repaired, Nasr offered to install the necessary parts, which he had ordered
from the dealership. Owobu, however, was out of the country at the time, so Nasr
returned the parts to the dealership. The dealership refunded Nasr the money for the
parts, minus a restocking fee in an unspecified amount. Nasr acknowledged that he
had the money that Owobu had paid for the parts. Nasr stated, “I’m not saying that
he’s not entitled to this money.” He agreed that Owobu was entitled to a “refund,
minus the restocking fee.”
Nasr also agreed that Owobu paid him $5,000 for labor. He testified, “I did
work on the car, clean up the glass, and some other work that was done to it, and I
covered it, and I parked it.” When asked how much labor Nasr “put into the car,”
Nasr responded, “It was quite a bit. I don’t recall.” He did not provide an estimate
on how much the labor that he performed on the vehicle was worth. Additionally,
when asked whether he agreed that any amount that he “did not put into labor on the
vehicle, Mr. Owobu is entitled to a refund,” Nasr stated, “I don’t disagree with that
at all, sir. He’s entitled to it, yes, sir.”
Nasr submitted two affidavits in response to Owobu’s summary judgment
motion. In his first affidavit, executed while Owobu’s bankruptcy proceeding was
pending, Nasr averred that he provided a repair estimate for the car to Owobu, and
Owobu “authorized the work” and “made a partial deposit for parts.” He stated,
“There was a great deal of work to be done requiring additional advance payments
13
from Mr. [Owobu] for parts as work progressed.” He also averred that after Owobu
informed him of the bankruptcy proceeding in early 2018, a dispute arose between
them “about the costs of the repairs and the timing of [Owobu’s] payments,” and
Owobu demanded the return of the vehicle. Nasr complied with this demand. Owobu
then requested the return of his “repair deposit.”
In his second affidavit, executed after Owobu filed suit and moved for
summary judgment, Nasr averred that he was not represented by counsel when he
testified in the bankruptcy proceeding. His testimony did not “fully and accurately
reflect all of the details of [his] dealing with Fidelis [Owobu] relating to the Rolls
Royce.” He then averred, “I did not and have never agreed to provide to Mr.
[Owobu], free labor, free mechanical estimates, free storage and security, or free
transportation of the Rolls Royce in question.” He also averred that Owobu
“attempted to involve [him] in, what appeared to be an improper series of
transactions involving the Rolls Royce Ghost,” but he “refused to become involved.”
We disagree with Nasr that Owobu’s summary judgment evidence did not
establish that an enforceable contract existed between him and Nasr. The work order
identified the vehicle, set out the estimated parts and services required to repair the
vehicle, stated an estimated price for parts and labor, contained an authorization to
perform the stated work, and was signed by Owobu. This work order was
accompanied by a list of parts for the vehicle and the estimated price for the parts,
14
which matched the price stated on the work order. Owobu presented copies of checks
made payable to Nasr for the amount of parts and labor, signed by Omoba
Investments and Owobu. Additionally, in his testimony during the bankruptcy
proceeding, Nasr did not deny that the parties agreed that he would repair the vehicle
and that Owobu and Omoba Investments had paid him to repair the vehicle. As in
Jones, we conclude that this evidence is sufficient to establish the terms of an
enforceable contract between the parties. See 45 S.W.3d at 354.
Nasr’s statements in his affidavits do not contradict Owobu’s evidence
establishing the existence of a contract. Nasr averred in his second affidavit that he
did not have an agreement to provide Owobu “free labor, free mechanical estimates,
free storage and security, or free transportation of the Rolls Royce in question.” He
also stated that his testimony during the bankruptcy proceeding did not “fully and
accurately reflect all of the details of [his] dealing with Fidelis [Owobu] relating to
the Rolls Royce.” However, he agreed in his first affidavit that Owobu brought him
a Rolls Royce in need of repair, he provided an estimate of costs to Owobu, Owobu
authorized the work, and Owobu “made a partial deposit for parts.” This is evidence
that the parties had an enforceable contract in which the parties agreed that Owobu
would pay Nasr for parts and repairs to the Rolls Royce. When viewing the evidence
in the light most favorable to Nasr, none of his summary judgment evidence raises
a fact issue on the existence of an enforceable contract between the parties. See
15
Savoy, 557 S.W.3d at 835 (listing elements of valid contract and stating that contract
“must be sufficiently certain to enable a court to determine the rights and
responsibilities of the parties” to be enforceable).
We conclude that Owobu and Omoba Investments established as a matter of
law that they had an enforceable contract with Nasr concerning parts and repairs to
the Rolls Royce. See TEX. R. CIV. P. 166a(c). The trial court did not err by granting
summary judgment to Owobu and Omoba Investments on their breach of contract
claim.
We overrule Nasr’s first issue.
Standing and Capacity to Sue
In his second issue, Nasr argues that the trial court erred by granting summary
judgment in favor of Omoba Investments because it had neither standing nor
capacity to sue. Specifically, he argues that Owobu and Omoba Investments did not
plead and prove that Omoba Investments was in privity of contract with Nasr, that it
was a third-party beneficiary under a contract between Nasr and Owobu, or that
Owobu had assigned his claims to Omoba Investments.
A. Standing
Standing is a constitutional prerequisite to maintain a lawsuit in state court.
Sneed v. Webre, 465 S.W.3d 169, 179–80 (Tex. 2015); Tran v. Hoang, 481 S.W.3d
313, 315 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Generally, unless
16
standing is conferred by a statute, a plaintiff must demonstrate that it possesses an
interest in the conflict distinct from that of the general public, such that the
defendant’s actions have caused the plaintiff some particular injury. Sneed, 465
S.W.3d at 180 (quoting Williams v. Lara, 52 S.W.3d 171, 178–79 (Tex. 2001)). The
standing inquiry focuses on whether a party has a sufficient relationship with the
lawsuit such that it has a “justiciable interest” in the outcome of the suit. Id. (quoting
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005)). The general
test for standing asks whether (1) a real controversy exists between the parties, and
(2) the controversy will be actually determined by the judicial declaration sought.
Id. (quoting Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993)).
Standing is a component of subject-matter jurisdiction, and as such, we review
this issue de novo. Id.; Heckman v. Williamson Cnty., 369 S.W.3d 137, 149–50 (Tex.
2012). Subject-matter jurisdiction is essential to a court’s power to hear a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Subject-matter
jurisdiction must exist before we can consider the merits of a case, and a
jurisdictional challenge cannot be waived. Tex. Propane Gas Ass’n v. City of
Houston, 622 S.W.3d 791, 797 (Tex. 2021). If a plaintiff lacks standing to assert a
claim, the court lacks jurisdiction over that claim and must dismiss it. Heckman, 369
S.W.3d at 150.
17
B. Capacity
As with standing, capacity is also necessary for a plaintiff to bring a lawsuit.
Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 775 (Tex. 2020). “A plaintiff has
standing when it is personally aggrieved, regardless of whether it is acting with legal
authority; a party has capacity when it has the legal authority to act, regardless of
whether it has a justiciable interest in the controversy.” Nootsie, Ltd. v. Williamson
Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996); Austin Nursing Ctr., 171
S.W.3d at 848 (noting that capacity is procedural issue concerned with party’s
personal qualifications to litigate suit).
Although standing cannot be waived, capacity can be waived. Coastal Liquids
Transp., L.P. v. Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001); see
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) (“An argument
that an opposing party does not have the capacity to participate in a suit can be
waived by a party's failure to properly raise the issue in the trial court.”).
Additionally, standing may be asserted at any time, but a challenge to a party’s
capacity must be raised by a verified pleading in the trial court. Austin Nursing Ctr.,
171 S.W.3d at 849; see TEX. R. CIV. P. 93(1)–(2) (requiring certain pleadings to be
verified by affidavit, including pleadings alleging that plaintiff does not have legal
capacity to sue or is not entitled to recover in capacity in which it sues). Rule 93
requires a verified plea to be filed anytime the record does not affirmatively
18
demonstrate the plaintiff’s right to bring suit in the capacity in which it is suing.
Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988) (per curiam); see Sixth
RMA Partners, 111 S.W.3d at 56 (“When capacity is contested, Rule 93 requires
that a verified plea be filed unless the truth of the matter appears of record.”).
The Dallas Court of Appeals and the Fourteenth Court of Appeals have
repeatedly held that a challenge to a party’s privity of contract is a challenge to
capacity, not standing. See, e.g., Transcon. Realty Inv’rs, Inc. v. Wicks, 442 S.W.3d
676, 679 (Tex. App.—Dallas 2014, pet. denied); John C. Flood of DC, Inc. v.
SuperMedia, L.L.C., 408 S.W.3d 645, 651 (Tex. App.—Dallas 2013, pet. denied);
Heartland Holdings, Inc. v. U.S. Tr. Co. of Tex. N.A., 316 S.W.3d 1, 6–7 (Tex.
App.—Houston [14th Dist.] 2010, no pet.); Yasuda Fire & Marine Ins. Co. of Am.
v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
The courts reasoned that the issue of privity of contract implicates capacity, but not
standing, because whether a party is entitled to sue on a contract “does not affect the
jurisdiction of the court; it is, instead, a decision on the merits.” Transcon. Realty
Inv’rs, 442 S.W.3d at 679 (quoting Nat’l Health Res. Corp. v. TBF Fin., LLC, 429
S.W.3d 125, 128–29 (Tex. App.—Dallas 2014, no pet.)); Heartland Holdings, 316
S.W.3d at 6–7; see also Polignone v. Bulldog Chems., LLC, No. 01-16-00633-CV,
2018 WL 4128002, at *3 n.6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no
pet.) (mem. op.) (“Capacity is a distinct issue from standing and not a jurisdictional
19
issue.”). If a plaintiff lacks entitlement to sue on a contract, the proper disposition
may be summary judgment on the merits of the claim, but it is not dismissal for want
of jurisdiction. John C. Flood of DC, 408 S.W.3d at 651; Heartland Holdings, 316
S.W.3d at 7.
Because a challenge to privity of contract is an issue of capacity, and not an
issue of standing, the party bringing the challenge is required to comply with Rule
93. King-Mays v. Nationwide Mut. Ins. Co., 194 S.W.3d 143, 145 (Tex. App.—
Dallas 2006, pet. denied) (“A challenge to privity is a capacity issue, not standing,
and requires compliance with rule 93.”); see Polignone, 2018 WL 4128002, at *3
n.6 (“[T]he defense of capacity must first be raised by a verified pleading in the trial
court pursuant to Texas Rule of Civil Procedure 93, otherwise it is waived on
appeal.”). If the party challenging capacity does not raise the issue in a verified
denial as required by Rule 93, the party waives the issue. Landry’s Seafood HouseAddison, Inc. v. Snadon, 233 S.W.3d 430, 434 (Tex. App.—Dallas 2007, pet.
denied); Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784,
787 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (stating that issue was
whether plaintiff was entitled to recover in capacity in which it sued, but defendant
failed to file verified pleading challenging capacity, so it waived issue); see also
Pike, 610 S.W.3d at 779 (stating that requiring defendant to raise question of “wrong
plaintiff” by verified plea provides opportunity for plaintiff to correct problem and
20
“signals whether the parties need to develop and present evidence on the issue at
trial”).
It is undisputed that Nasr did not file a verified denial challenging Omoba
Investments’ capacity to sue. Instead, he raises the issue for the first time on appeal,
arguing that Owobu and Omoba Investments “did not plead privity, third-party
beneficiary or proffer evidence of any assignment of claims in connection with
Appellee Omoba Investments, LLC,” and therefore “[t]here is no basis whatsoever
for establishing any contractual obligations by and between Appellant and Appellee
Omoba Investments, LLC.” To the extent Nasr argues that he and Omoba
Investments were not in privity with each other, and therefore Omoba Investments
cannot sue on any contract that existed between Nasr and Owobu, this argument does
not implicate standing. Rather, it implicates capacity to sue, and Nasr was required
to raise the issue of Omoba Investments’ capacity to sue in a verified denial pursuant
to Rule 93. See TEX. R. CIV. P. 93; King-Mays, 194 S.W.3d at 145. Because Nasr
undisputedly did not file a verified denial challenging Omoba Investments’ capacity,
he has waived this issue for appellate review. See Landry’s Seafood House-Addison,
233 S.W.3d at 434; Nine Greenway Ltd., 875 S.W.2d at 787.
We overrule Nasr’s second issue.
21
Award of Attorney’s Fees
In his third issue, Nasr argues that the trial court erred by awarding Owobu
and Omoba Investments attorney’s fees in the absence of proof that they complied
with the notice and demand requirements of Civil Practice and Remedies Code
section 38.002.
Generally, a party may not recover attorney’s fees from another party unless
authorized by statute or contract. In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 809
(Tex. 2017) (orig. proceeding). Civil Practice and Remedies Code section 38.001
allows a party to recover attorney’s fees in addition to the amount of a valid claim
and costs if the claim is for an oral or written contract. TEX.CIV. PRAC. & REM.CODE
38.001(b)(8). To recover attorney’s fees under Chapter 38, (1) the claimant must be
represented by an attorney; (2) the claimant must present the claim to the opposing
party; and (3) payment for the just amount owed may not have been tendered before
the expiration of the thirtieth day after the claim is presented. Id. § 38.002.
A claimant seeking recovery of attorney’s fees bears the burden to plead and
prove presentment. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983) (op. on
reh’g); Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd., 566 S.W.3d 801, 824 (Tex.
App.—Houston [14th Dist.] 2018, pet. denied). However, when a claimant alleges
in his petition that all conditions precedent have occurred or have been performed,
he is required to prove only those conditions that the opposing party has specifically
22
denied. Shin-Con Dev. Corp. v. I.P. Invs., Ltd., 270 S.W.3d 759, 768 (Tex. App.—
Dallas 2008, pet. denied); TEX. R. CIV. P. 54. Thus, if a defendant does not
specifically deny that a plaintiff presented his contract claim as required by section
38.002, the defendant waives his right to complain of such a failure on appeal. ShinCon Dev. Corp., 270 S.W.3d at 768; see Coleman v. Coleman, No. 01-09-00615-
CV, 2010 WL 5187612, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no
pet.) (mem. op.) (“Presentment must be raised at the trial court to be preserved on
appeal.”); A.G.E., Inc. v. Buford, 105 S.W.3d 667, 678 (Tex. App.—Austin 2003,
pet. denied) (concluding that challenges to presentment must be raised in trial court
to be preserved for appellate review).
In their original petition, Owobu and Omoba Investments sought attorney’s
fees under Chapter 38 and pleaded that they gave notice of their claim and “made
demand for payment to [Nasr] more than thirty (30) days ago, but [Nasr] failed to
make payment although duly demanded.” They also alleged, “All conditions
precedent necessary to maintain this lawsuit have been performed or have occurred.”
Nasr filed a general denial, but he did not specifically deny any conditions precedent
or specifically deny presentment of the claim. Nasr did not challenge presentment in
his summary judgment response. Nor did he challenge presentment in his motion for
new trial or in his reply to Owobu’s response to the new trial motion.
23
Because Owobu and Omoba Investments pleaded that all conditions precedent
to recovery had occurred and they presented their claim to Nasr, but Nasr did not
specifically deny this allegation or otherwise challenge presentment in the trial court,
we conclude that Nasr failed to preserve this claim for appellate review. See
Coleman, 2010 WL 5187612, at *2; Shin-Con Dev. Corp., 270 S.W.3d at 768;
A.G.E., 105 S.W.3d at 678.
We overrule Nasr’s third issue.
Motion for Continuance
Finally, in his fourth and fifth issues, Nasr argues that the trial court abused
its discretion when it denied Nasr’s request for additional time to respond to
Owobu’s summary judgment motion and when it denied Nasr’s motion for new
trial.2 He additionally argues that the trial court’s “expeditious disposition of the
case” violated his due process rights, especially in light of the COVID-19 restrictions
on in-person gatherings in place at the time.
2 To the extent Nasr argues that the trial court abused its discretion in denying his
motion for new trial because Owobu and Omoba Investments failed to present
sufficient evidence to meet their initial summary judgment burden, we have already
concluded, in response to Nasr’s first appellate issue, that Owobu and Omoba
Investments conclusively established the existence of an enforceable contract
between the parties and the court did not err by granting summary judgment in their
favor on that claim. Likewise, the trial court did not abuse its discretion in denying
Nasr’s motion for new trial on this basis. See J&J Container Mfg., Inc. v. Cintas-R
U.S., L.P., 516 S.W.3d 635, 637 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(stating that review of trial court’s denial of motion for new trial is for abuse of
discretion).
24
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.—
Houston [1st Dist.] 2008, no pet.). We also review the denial of a motion for new
trial for an abuse of discretion. J&J Container Mfg., Inc. v. Cintas-R U.S., L.P., 516
S.W.3d 635, 637 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Under this
standard, we will not reverse the trial court’s decision unless the court acted
unreasonably or in an arbitrary manner without reference to guiding rules and
principles. Landers, 257 S.W.3d at 747. A trial court’s order granting a summary
judgment motion constitutes an implicit decision to overrule a motion for
continuance. Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 403 (Tex.
App.—Houston [1st Dist.] 2017, no pet.).
The trial court may grant a continuance to a party opposing a summary
judgment motion to conduct further discovery if the nonmovant can show the need
for such discovery to oppose the motion. Landers, 257 S.W.3d at 747; TEX. R. CIV.
P. 166a(g). The party seeking a continuance for additional time to conduct discovery
must support the request with an affidavit that describes the evidence sought,
explains its materiality, and shows that the party has used due diligence to timely
obtain the evidence. Stierwalt v. FFE Transp. Servs., Inc., 499 S.W.3d 181, 189
(Tex. App.—El Paso 2016, no pet.); Cardenas, 527 S.W.3d at 404; see TEX. R. CIV.
P. 251 (“[N]or shall any continuance be granted except for sufficient cause supported
25
by affidavit, or by consent of the parties, or by operation of law.”). The affidavit
must state with particularity the evidence sought and the diligence used to obtain the
evidence. Stierwalt, 499 S.W.3d at 192; Carter v. MacFadyen, 93 S.W.3d 307, 310
(Tex. App.—Houston [14th Dist.] 2002, pet. denied) (“The affidavit must show why
the continuance is necessary; conclusory allegations are not sufficient.”).
Owobu and Omoba Investments filed suit against Nasr on March 9, 2020.
They filed for traditional summary judgment on June 4, 2020, less than three months
later.
In Nasr’s timely summary judgment response, filed on June 19, 2020, he
requested that the trial court set the hearing or submission date on the motion “to a
date occurring not sooner than sixty (60) days from this date so that [Nasr] has the
benefit of [Plaintiffs’] responses to the written discovery propounded on Plaintiffs.”
Nasr did not file an affidavit in support of this request for a continuance. He did not
state what discovery he had sought from Owobu but not obtained, and he did not
state how this evidence was material to his case.
After the trial court granted summary judgment in favor of Owobu and Omoba
Investments, Nasr moved for a new trial. His counsel argued that COVID-19
regulations had restricted his ability to practice law and conduct discovery. Nasr
stated that he requested a continuance in his summary judgment response and
pointed out to the trial court that he “was relying on responses to outstanding
26
discovery requests propounded on Plaintiff.” He argued that he had been unfairly
prejudiced “by entry of an expedited summary judgment . . . in a case in which
discovery responses from the summary judgment movant were still outstanding.” He
stated that discovery responses “would form a good faith basis for Defendant’s
rebuttal to the allegations of Plaintiff.” Nasr did not, however, support his motion
for new trial with an affidavit. He also did not identify specific discovery requests
or explain how the requested discovery would have helped his summary judgment
defense.
To obtain a continuance for the purpose of conducting discovery, Nasr was
required to support his request with an affidavit that described, among other things,
the evidence he sought and its materiality to the summary judgment proceeding. See
Stierwalt, 499 S.W.3d at 189; Landers, 257 S.W.3d at 747. Nasr did not file such an
affidavit, either during the summary judgment proceedings or the new trial
proceedings. He never explained to the trial court what discovery he sought from
Owobu or how it was material to his defense. Under these circumstances, we
conclude that the trial court did not abuse its discretion in denying Nasr’s motion for
continuance or in denying his motion for new trial on this basis. See Landers, 257
S.W.3d at 747.
Nasr also argues that the trial court, by not allowing him additional time to
develop his defenses, effectively denied him due process.
27
The rules of civil procedure afford the nonmovant in a summary judgment
proceeding twenty-one days’ notice before the summary judgment hearing. TEX. R.
CIV. P. 166a(c). Both the United States and the Texas Constitutions protect against
the deprivation of life, liberty, or property without due process—or due course—of
law. Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300
S.W.3d 348, 363 (Tex. App.—Dallas 2009, pet. denied) (quoting U.S. CONST.
amend. XIV, § 1; TEX.CONST. art. I, § 9). At a minimum, due process requires notice
and an opportunity to be heard at a meaningful time and in a meaningful manner. Id.
A nonmovant’s due process rights are satisfied if he received a reasonable
opportunity to present his written response and evidence. Whiteside v. Ford Motor
Credit Co., 220 S.W.3d 191, 194–95 (Tex. App.—Dallas 2007, no pet.).
Nasr does not contend that he received less than twenty-one days’ notice of
the summary judgment hearing. Additionally, it is undisputed that he filed a written
response to the summary judgment motion and attached evidence that he contended
raised a fact issue on the breach of contract claim. However, although Nasr argued
in both his summary judgment response and his motion for new trial that the answers
to the written discovery that he propounded to Owobu would assist his defense, he
did not identify with specificity the evidence that he sought or how it was material.
Because Nasr did not provide that information to the trial court when he sought a
continuance, we conclude that the trial court’s denial of additional time for discovery
28
did not violate Nasr’s due process rights. See id. at 195 (noting that defendant
responded to summary judgment motion but did not “describe what further response
he wished to make” or “set forth any evidence he was precluded from presenting to
the trial court” and concluding that trial court did not violate defendant’s due process
rights).
We overrule Nasr’s fourth and fifth issues.
Appellate Sanctions
In their appellate brief, Owobu and Omoba Investments request that this Court
sanction Nasr pursuant to Rule of Appellate Procedure 45 for filing a frivolous
appeal.
Rule 45 allows an appellate court, if it determines that an appeal is frivolous,
to award each prevailing party “just damages.” See TEX.R. APP. P. 45. “To determine
whether an appeal is objectively frivolous, we review the record from the standpoint
of the advocate and decide whether the advocate had reasonable grounds to believe
the case could be reversed.” KB Home Lone Star Inc. v. Gordon, 629 S.W.3d 649,
659 (Tex. App.—San Antonio 2021, no pet.). The decision to award damages under
Rule 45 is “a matter within this court’s discretion, which we exercise with prudence
and caution after careful deliberation.” Glassman v. Goodfriend, 347 S.W.3d 772,
782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
29
Although we have overruled each of Nasr’s appellate issues, we do not agree
with Owobu and Omoba Investments that, when viewing the record from the
standpoint of Nasr’s counsel, no reasonable grounds existed to believe the case could
be reversed. See KB Home Lone Star, 629 S.W.3d at 659. We therefore decline to
exercise our discretion to award “just damages” to Owobu and Omoba Investments
under Rule 45.
Outcome: We affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: