NUMBER 13-20-00499-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

SILVA, OTTING & SILVA, LLC, Appellant,

v.

DONNA ECONOMIC DEVELOPMENT

CORPORATION 4A, DEVELOPMENT

CORPORATION OF DONNA 4B, AND 

DONNA INTERNATIONAL BRIDGE 

CORPORATION, Appellees. 

 

On appeal from the 464th District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION 

Before Justices Longoria, Hinojosa, and Silva

Memorandum Opinion by Justice Hinojosa
2

Appellant Silva, Otting & Silva, LLC (SOS) sued the City of Donna (the City)1 and 

appellees Donna Economic Development Corporation 4A (DEDC), Development 

Corporation of Donna 4B (DCD), and Donna International Bridge Corporation (DIBC) for 

breach of contract. The trial court granted appellees’ no-evidence summary judgment 

motion as well as DIBC’s traditional motion for summary judgment. It then severed SOS’s 

claims against appellees and entered a final judgment in the severed cause. In three 

issues, which we reorder, SOS argues that the trial court erred in: (1) severing its cause 

of action against appellees; (2) denying its motion for continuance; and (3) granting 

appellees’ motion for summary judgment. We affirm.

I. BACKGROUND

A. SOS’s Petition 

SOS sued appellees and the City for breach of contract. SOS alleged that it 

entered into several business consulting agreements with the City and appellees “for the 

approval[,] financing, construct[ing,] installation[,] and rehabilitation of water and sewer 

facilities” as well as “the financing and development of the Donna-Rio Bravo International 

Bridge Project” (Bridge Project). With respect to the Bridge Project, SOS claimed it 

entered into an agreement on May 29, 2002, which was extended multiple times up to 

February 17, 2016. SOS alleged it obtained a grant for the City in the amount of 

$9,000,000, for which it invoiced the City $750,000. SOS further alleged that it 

implemented a financial plan for the City to obtain the refinancing of bonds in the amount 

of $27,900,000, for which it invoiced the City $1,600,000.

1 The City is not a party to this appeal.
3

With respect to the improvements to water and sewer facilities, SOS claimed it 

originally entered into an agreement on August 12, 2002. SOS stated that it obtained 

$20,000,000 in grants, for which it invoiced the City $1,005,969.76. 

SOS alleged that it entered into an amended payment agreement on March 29, 

2017, that provided payment schedules for the balances owed to SOS under the prior 

agreements. According to SOS, the City made payments under this agreement until June 

2018, at which time the City terminated the agreement.

In an attached letter dated August 13, 2018, from City Manager Carlos Yerena to 

SOS, the City stated it was terminating the “International Bridge Consultant Engagement,” 

and that it would make no more payments to SOS “as the [C]ity cannot recognize the 

purported agreements[.]”

B. Dismissal Motions & Motions for Summary Judgment

Appellees answered suit.2 They later filed a no-evidence motion for summary 

judgment, challenging each element of SOS’s breach of contract action. DIBC separately 

moved for traditional summary judgment on its statute of limitations defense. DIBC 

attached a January 28, 2008 Business Consultant Agreement Amendment between DIBC 

and SOS, which was purportedly the only contract to which DIBC was a signatory. DIBC 

argued that the latest SOS’s action accrued was on October 31, 2009, when its 

agreement with SOS expired by its own terms. Accordingly, DIBC argued that SOS was 

required to bring suit no later than October 30, 2013, when the limitations period expired. 

2 The City also answered suit and brought a counterclaim for declaratory relief. It then filed a motion 

to dismiss for lack of jurisdiction arguing that the agreements were void based on the Texas Constitution’s 

prohibition against unfunded debts. See TEX. CONST. art. XI, §§ 5, 7.
4

See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051; Trelltex, Inc. v. Intecx, L.L.C., 494 

S.W.3d 781, 786 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“The statute of 

limitations for breach-of-contract actions is four years from the date of accrual.”).

SOS filed a combined response to the motions, which included a motion for 

continuance. SOS attached the following exhibits: (1) an undated and unexecuted 

contract labeled “draft” between SOS, the City, and appellees; (2) the affidavit of SOS’s 

principal owner Ernesto Silva; (3) the August 13, 2018 termination notice to SOS from the 

City; and (4) the affidavit of SOS’s counsel in support of the motion for continuance.

SOS alleged that it reached an agreement with the City and appellees on March 

29, 2017, as evidenced by the draft agreement, that obligated appellees to “pay sums 

due and owing [SOS] based on a payment plan.” SOS maintained that it completed the 

services entitling it to payment and that appellees breached the contract by notifying SOS 

“they were no longer going to pay the sums due under the contract.” In response to DIBC’s 

traditional summary judgment motion, SOS argued that it timely filed suit because DIBC 

breached the March 29, 2017 contract on August 13, 2018. SOS alternatively requested 

that the trial court continue the submission date, arguing that it needed “additional time to 

obtain minutes of meetings and audits of” the City and appellees. SOS maintained that 

the evidence was material to showing the existence of a contract with appellees. 

Subsequently, on the parties’ agreed motion, the trial court extended the 

submission deadline from March 30, 2020, to April 6, 2020, because appellees did not

receive service of SOS’s summary judgment response. 
5

Appellees filed a reply to SOS’s response, arguing SOS failed to establish the 

essential elements of its breach of contract claim. Appellees noted that the unsigned draft 

agreement contained no signature block for appellees, was not executed, and was not 

supported by consideration. Appellees further argued that Silva’s affidavit, which 

discussed his dealings with the City, contained no allegation “of any action by any 

[appellees] that would support the existence of a valid, enforceable agreement with 

[SOS].” Appellees also maintained that the agreement violated the statute of frauds 

because it could not be performed within one year. See TEX. BUS. & COMM. CODE ANN.

§ 26.01(b)(6). Finally, appellees argued that SOS presented no evidence that appellees, 

as opposed to the City, breached the contract. DIBC, in particular, argued that SOS failed 

to present any evidence creating a fact issue as to the application of its limitations 

defense. 

Appellees opposed SOS’s motion for continuance. They noted that SOS knew of 

appellees’ defenses to suit no later than October 2019, when they served their response 

to SOS’s request for disclosures. Yet, SOS did not serve further discovery until March 4, 

2020, after appellees filed their motion for summary judgment, which appellees believed 

evidenced a lack of diligence in obtaining discovery. 

The trial court signed an order granting appellees’ motions for summary judgment.3

It did not explicitly rule on SOS’s motion for continuance. The trial court noted that SOS’s 

claims against the City remained on the docket for a May 26, 2020 trial setting. Over 

SOS’s objection, the trial court later granted appellees’ motion to sever SOS’s claims 

3 The trial court denied the City’s motion to dismiss for lack of jurisdiction in the same order. 
6

against them and entered a final take-nothing judgment in the severed cause of action. 

This appeal followed. 

II. SEVERANCE

By its first issue, SOS argues that the trial court erred in granting appellees’ motion 

to sever. Specifically, SOS maintains that it is bringing an “indivisible cause of action

involving . . . the same facts, and the same legal issues, none of which could be 

independently urged as separate claims[.]”

A. Standard of Review & Applicable Law

Texas Rule of Civil Procedure 41 provides that “[a]ny claim against a party may be 

severed and proceeded with separately.” TEX. R. CIV. P. 41.

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.

Dorsey v. Raval, 480 S.W.3d 10, 15 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.)

(quoting F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007)). 

“[A]voiding prejudice, doing justice, and increasing convenience are the controlling 

reasons to allow a severance.” Duenez, 237 S.W.3d at 693. We review a trial court’s order 

severing a claim under an abuse of discretion standard. Id.

B. Analysis

SOS’s claims against appellees no doubt involve some of the same facts and 

issues as its claims against the City. However, at the time the trial court granted 

severance, SOS’s claims against appellees had been dismissed by summary judgment, 
7

while SOS’s claims against the City remained pending. “The [Texas] Supreme Court has 

recognized that severance after summary judgment in an effort to expedite appellate 

review is not an abuse of discretion.” Garcia v. Willman, 4 S.W.3d 307, 311–12 (Tex.

App.—Corpus Christi–Edinburg 1999, no pet.) (citing Cherokee Water Co. v. 

Forderhause, 641 S.W.2d 522, 525–26 (Tex. 1982)); see also In re Zaraienh, No. 13-16-

00465-CV, 2018 WL 4000400, at *6 (Tex. App.—Corpus Christi–Edinburg June 6, 2018, 

orig. proceeding) (per curiam) (mem. op.) (explaining that a trial court does not abuse its 

discretion in severing a claim “for purposes of enabling the parties to expedite appellate 

review of a partial summary judgment”). We conclude that severance was not an abuse 

of discretion because the claims against appellees, unlike the claims against the City, had 

already been disposed of by summary judgment. See Garcia, 4 S.W.3d at 312 (noting 

that, “[b]y granting the severance, the judgment became final and appealable, thereby 

allowing Garcia the benefit of this appeal”); see also Cherokee Water Co., 641 S.W.2d at 

526. We overrule SOS’s first issue.

III. CONTINUANCE

By its second issue, SOS argues that the trial court erred “in implicitly denying 

[SOS’s] motion for continuance.” SOS maintains that it established the need for “more 

time in order to conduct additional discovery to adequately respond to some of the 

allegations raised by [a]ppellees’ summary judgment motion.”

To preserve a complaint for appellate review, the record must show that the 

complaint was made to the trial court by a timely motion with sufficient specificity, the trial 

court expressly or implicitly ruled on the motion or refused to rule on the motion, and the 
8

complaining party objected to the refusal. TEX. R. APP. P. 33.1(a). SOS asserts that the 

trial court implicitly denied its motion for continuance when it granted appellees’ motion 

for summary judgment. See Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114–15 

(Tex. App.—Waco 1999, no pet.) (holding that trial court implicitly overruled motion for 

continuance by granting summary judgment where an inference could be made given the 

continuance had been unlikely abandoned, filed only two days before the hearing). We 

disagree.

Merely filing a motion is not sufficient to preserve an error; the movant must bring 

the motion to the trial court’s attention, thereby giving the court an opportunity to rule on 

the motion. In re Purported Lien or Claim Against Collin Cty. Clerk Taylor, 219 S.W.3d 

620, 623 (Tex. App.—Dallas 2007, pet. denied); In re Davidson, 153 S.W.3d 490, 491 

(Tex. App.—Amarillo 2004, orig. proceeding); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. 

App.—Houston [1st Dist.] 1994, writ denied); see also Alikhan v. Alikhan, No. 03-19-

00515-CV, 2021 WL 3085844, at *4 (Tex. App.—Austin July 22, 2021, pet. denied) (mem. 

op.) (explaining that “an essential element of an implicit ruling is awareness by the trial 

judge of the request or motion that is supposedly being ruled on”) (quotations and 

alterations omitted). Here, we cannot conclude that the trial court implicitly denied the 

motion for continuance because there is no indication in the record that SOS brought the 

motion to the trial court’s attention. See Gonerway v. Corrs. Corp. of Am., 442 S.W.3d 

443, 446 (Tex. App.—Dallas 2013, no pet.) (holding appellant failed to preserve complaint 

concerning trial court’s denial of her motion for continuance where “record does not show 

the trial court ruled on the motion,” “record does not show [appellant] called her motion to 
9

the attention of the trial court,” and “even if the trial court refused to rule on [appellant’s] 

motion, which is not reflected in the record, there is nothing in the record to show 

[appellant] objected to such a refusal”); see also Wulchin Land, L.L.C. v. Ellis, No. 13-18-

00156-CV, 2020 WL 1303230, at *11 (Tex. App.—Corpus Christi–Edinburg Mar. 19, 

2020, pet. denied) (mem. op.) (holding that the trial court did not implicitly overrule the 

motion for continuance where appellant did not bring the motion to the trial court’s 

attention). Likewise, the record does not show that the trial court refused to rule on the 

motion or that SOS objected to that refusal. As a result, we conclude that this issue has 

not been preserved for appellate review. See TEX. R. APP. P. 33.1(a). We overrule SOS’s 

second issue.

IV. SUMMARY JUDGMENT

By its third issue, SOS argues that the trial court erred in granting summary 

judgment on either no-evidence or traditional grounds.

A. Standard of Review & Applicable Law

“We review a trial court’s summary judgment de novo.” KMS Retail Rowlett, LP v. 

City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). We consider the evidence in the light 

most favorable to the nonmovant, indulging every reasonable inference in favor of the 

nonmovant and resolving any doubts against the movant. Id. To prevail on a traditional 

motion for summary judgment, the movant must show that there is no genuine issue of 

material fact as to at least one essential element of the nonmovant’s cause of action and 

that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). If a movant meets 

this burden, then the burden shifts to the non-movant to present evidence raising a 
10

genuine issue of material fact. Kaplan v. City of Sugar Land, 525 S.W.3d 297, 302 (Tex. 

App.—Houston [14th Dist.] 2017, no pet.); Jones v. Ray Ins. Agency, 59 S.W.3d 739, 744 

(Tex. App.—Corpus Christi–Edinburg 2001, no pet.).

After an adequate time for discovery, a party may file a “no-evidence” motion for

summary judgment asserting there is no evidence of one or more essential elements of 

a claim or defense on which the adverse party would have the burden of proof at trial.

TEX. R. CIV. P. 166a(i). “A no-evidence motion for summary judgment immediately shifts 

the burden to the nonmovant.” Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 514 

(Tex. 2022). To defeat a no-evidence motion for summary judgment, the nonmovant must

raise a genuine issue of material fact as to each challenged element of a claim or defense. 

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The nonmovant can meet 

its burden in response to either a no-evidence or traditional summary judgment motion if 

its evidence is more than a scintilla, i.e., it “rises to a level that would enable reasonable 

and fair-minded people to differ in their conclusions.” Id. at 601 (quoting Merrell Dow 

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

“If a party moves for summary judgment on both traditional and no-evidence 

grounds, as the parties did here, we first consider the no-evidence motion.” Lightning Oil 

Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017) (citing Ford Motor 

Co., 135 S.W.3d at 600). Because the trial court did not specify the basis for the ruling, 

we must affirm the judgment if any theory advanced in the motion is meritorious. W. Invs., 

Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). But we may not affirm the judgment on 

grounds not raised in the motion or response. Henkel v. Norman, 441 S.W.3d 249, 251 
11

n.1 (Tex. 2014) (per curiam) (quoting Stiles v. Res. Tr. Corp., 867 S.W.2d 24, 26 (Tex. 

1993) (“[W]e hold that a summary judgment cannot be affirmed on grounds not expressly 

set out in the motion or response.”)).

The elements of a breach of contract claim are: (1) a valid contract, (2) the party 

suing to enforce the contract performed or tendered performance, (3) the other party 

breached the contract, and (4) the suing party was damaged as a result of the breach. 

USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018); Thornton v. 

Dobbs, 355 S.W.3d 312, 316 (Tex. App.—Dallas 2011, no pet.).

B. Analysis

SOS first argues that it met its burden to produce more than a scintilla of evidence 

on each of its breach-of-contract elements in response to appellees’ no-evidence 

challenge. On appeal, SOS relies on documents attached to its pleadings as well as the 

items attached to its response to appellees’ motion for summary judgment. 

We observe that SOS did not rely on or reference the documents attached to its 

petition in its summary-judgment response. Rather, it solely relied on an agreement 

purportedly entered into on March 29, 2017, Silva’s affidavit testimony, and the City’s 

notice of termination. “A party must expressly and specifically identify the supporting 

evidence on file that it seeks the trial court to consider in a summary judgment motion or 

a response to a summary judgment motion.” Speck v. First Evangelical Lutheran Church 

of Hous., 235 S.W.3d 811, 816 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A party 

“may not obtain a reversal of a no-evidence summary-judgment motion based on 

evidence attached to items filed in the trial court other than a summary-judgment 
12

response, unless [it] identified the evidence purportedly raising a genuine fact issue in a 

summary-judgment response.” Stettner v. Lewis & Maese Auction, LLC, 611 S.W.3d 102, 

109 (Tex. App.—Houston [14th Dist.] 2020, no pet.). In addition, “[p]leadings are not 

competent summary judgment evidence, even if sworn or verified.” Heirs of Del Real v. 

Eason, 374 S.W.3d 483, 487–88 (Tex. App.—Eastland 2012, no pet.) (citing Laidlaw 

Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)). Likewise, 

unverified documents attached to pleadings are not proper summary judgment evidence. 

See TEX. R. CIV. P. 166a(f); Eason, 374 S.W.3d at 488. We thus limit our review to the 

documents referenced in the response. 

We first examine whether SOS presented evidence of a valid contract with 

appellees. To establish a valid, enforceable contract, the following elements must be 

shown: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; 

(3) a meeting of the minds on the essential term—or mutual assent; (4) consent to the 

terms; and (5) execution and delivery of the contract. E-Learning LLC v. AT&T Corp., 517 

S.W.3d 849, 858 (Tex. App.—San Antonio 2017, no pet.).

In its response, SOS relied on an unexecuted draft agreement, titled “Amended 

Payment Agreement for Services Rendered,” as evidence of a valid contract. The 

agreement is purportedly between SOS and the City, as well as the appellees. In his 

affidavit, Silva states that the Donna City Commission approved the agreement on March 

29, 2017. The agreement does not bear a signature block for any appellee. It 

contemplates the signatures of the City’s manager, attorney, and secretary, as well as 

Silva. 
13

 Mutual assent, in the case of a written contract, is generally evidenced by the 

signatures of the parties and delivery with the intent to bind. Baylor Univ. v. Sonnichsen, 

221 S.W.3d 632, 635 (Tex. 2007) (per curiam). “But while signature and delivery are often 

evidence of the mutual assent required for a contract, they are not essential.” Phillips v. 

Carlton Energy Grp., LLC, 475 S.W.3d 265, 277 (Tex. 2015). “Texas law recognizes that 

a contract need not be signed to be ‘executed’ unless the parties explicitly require 

signatures as a condition of mutual assent.” Id. (quoting Mid-Continent Cas. Co. v. Glob. 

Enercom Mgmt., Inc., 323 S.W.3d 151, 157 (Tex. 2010) (per curiam)). “If a written draft 

of an agreement is prepared, submitted to both parties, and each of them expresses his 

unconditional assent thereto, there is a written contract.” Id.

Evidence that the City commission approved the contract may be relevant to 

whether the City mutually assented to the agreement, an issue that is not before us. See 

City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441, 446 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (concluding that contract document and City Council’s 

passage of accompanying motion constituted “the last step needed to complete the 

written contract between the parties”); but see S. Disposal, Inc. v. City of Blossom, 165 

S.W.3d 887, 893 (Tex. App.—Texarkana 2005, no pet.) (“The proof of the governing 

body’s acts may be supplied only by the authenticated minutes of the meeting at which 

the action occurred, unless the minutes have been lost or destroyed.”). However, such 

evidence has no bearing as to whether appellees4 took any separate action mutually 

4 “[E]conomic development corporations [are] nonprofit corporate entities with ‘the powers, 

privileges, and functions of a nonprofit corporation[.]” Rosenberg Dev. Corp. v. Imperial Performing Arts,

Inc., 571 S.W.3d 738, 745 (Tex. 2019) (quoting TEX. LOC. GOV’T CODE ANN. §§ 501.053–.054.). “‘All of the 

powers of [the] corporation are vested in’ the corporation’s board of directors.” Id. (quoting TEX. LOC. GOV’T 
14

assenting to the terms of the agreement. SOS provides no evidence of any action by 

appellees which would demonstrate that they mutually assented to the terms of the 

agreement. See Wright v. Hernandez, 469 S.W.3d 744, 760 (Tex. App.—El Paso 2015, 

no pet.) (“[A] parties’ [sic] intent to be bound by a contract may be evidenced by its 

conduct at the time a contract is drafted and by its subsequent conduct reflecting that it 

was acting in accordance with the terms of the contract.”). Indeed, the supposed 

termination of the agreement was accomplished by a letter from the City’s manager 

issued on City letterhead. Therefore, we conclude that SOS has failed to present 

evidence of a valid contract with appellees, an essential element of its claim. See 

Menchaca, 545 S.W.3d at 501 n.21. As such, the trial court properly granted appellees’ 

no-evidence motion for summary judgment. See City of Rowlett, 593 S.W.3d at 181. 

Given this conclusion, we need not address whether DIBC was entitled to traditional 

summary judgment on its limitations defense. See TEX. R. APP. P. 47.1. We overrule 

SOS’s third issue.

V. CONCLUSION

We affirm the trial court’s judgment. 

LETICIA HINOJOSA

Justice

Delivered and filed on the

17th day of November, 2022.

CODE ANN. § 501.062(a)).