A ffirmed in Part and Reversed in Part and Remanded and Memorandum

Opinion filed April 23 , 2020
.

In The



## Fourteenth Court of Appeals

NO. 14

- 18

- 00557

- CV

KEVIN L
. HOOD , Appellant

V.
HANNA & HANNA INC. , Appellee

On Appeal from the Co unty Civil C ourt at Law No
. 4

Harris County, Tex as Trial Court Cause No. 1106883

MEMORANDUM OPINION App e llee , Hanna & Hanna, Inc. performed court reporting services for appellant, Kevin L. Hood. W h en Hood failed to pay for those ser vices, H an na & Hanna filed suit a gainst Hood alleging sev eral differ en t causes of action. Han na & Hanna file d a motion for summary judgment on its claims soon after filing the lawsuit , which the trial court granted. Hood challenges that final summary judgment on ap pea l. Con cluding that Hanna & Hanna established its right to2

summary judgment on its breach of contract claim, we affirm that po rtion of the trial court ’ s final summary judgment. But, because we c onclude tha t Hanna & Hanna failed to prove the amount of attorney ’ s fees incu rred in t his litigation as a matter of law , we sustain Hood ’ s fi fth issue , reverse the tr ial court ’ s summary judgment in part, and re mand the case to the trial co urt for fu rther proceedings.

B ACKGROUND
Hanna & Hann a operates a co urt reporting serv ice. It is undis puted that Hanna & Hanna provided court reporting ser vi ces in a la wsuit in which Hood represented the plaintiff. It is also und isputed that seven depo sitions were taken during which Hanna & Han na provided the court reporter. Hanna & Hanna sen t in voices t o Hood for each of the seven depositions. Hanna & Hanna ’ s charges for all seven deposit i ons totaled $7, 998.39

. Hanna & Hanna filed suit alleging the following causes of action : (1) suit on

a sworn account, (2) breach of con t r ac t, (3) suit on an open acco unt , and (4) quantum meruit

. I t also alleged tha t Hood was liable pursuant to section 52.059 o f the Government Code bec ause he asked the first question at the deposit ion or requested a copy o f the deposition transcript. 1 Hanna & Hanna alleged that it had suffered d amages totali ng $ 7,998.38 plus attorney’s fees. Hood filed a verified

answer gene rally de n ying Hanna & Hanna ’ s claim ed damages , den ying that Han na & Hanna ’ s charges cons tituted the usual and cu st oma ry fees for the services rendered , and also as serted that Hanna & Hanna had failed to meet the required conditions precedent to recover attorney ’ s fees. Hood alleged no affirma tive

1 Section 52.059 of the Texas Government Code creates statutory liabilit y for an attorney and his law firm for court reporter fe es associated with a depo sition unless the attorney states on the record of the depo sition that he and his law firm will not be responsible. Cole v. Gwendolyn Parker, Inc. , N o . 05

- 13

- 01655

- CV, 2015 WL 4626750, at * 4 (Tex. App.

— Dallas Aug. 4, 2015 , no pet. )

.3

de fenses in his answer.
Hanna & Hanna filed a hy brid no

- evidence and traditional motion for summary judgment based on th eir claims for breach of contract, suit on a sworn
account , and section 52.059 o f the Government Code thirty

- two days after Hood filed his answer. Prior to the motion’ s sub mission date, Hood filed a veri fied motion for continuance, objections to the movan t’s summary judgment evidence, and a substantive response to the motion itself. Hood did not, however , attach any evidence, such as an affidav it, to hi s substantive response to Hanna & Hanna ’ s motion

. The trial cour t did not rule on Hood ’ s m otion for con tinuance, or his objections to Hanna & Hanna ’ s sum mary jud gment evi dence

. The trial court granted Hanna & Hanna ’ s motion and it signed a final su mm ary judgment awarding Hanna & Hanna $7,998.38 and $2 ,500 in attorney ’ s fees

. This appeal followed.
A NALYSIS Ap pell ant raises f

ive issues on appeal. We need only address three of appellant ’ s issues

. I. Hood d id n o t preserve his first is sue for ap pellate review. In response to Hanna & Hanna ’ s motion for summa ry jud gment, which was set on the trial court ’ s sub mission docket, Hood filed a motion for continuance of the summary judgment proceeding as sert ing that he needed a ddi ti onal time to conduct d iscovery in order to adeq uately respond to Hanna & Hanna ’ s motion. Hood argues i n his first issue on appeal that th e trial court abused its discretion when it denied his con tinu ance motion

. The record , however, does not reflect that the tr ia l co urt rule d on Hood ’ s motion. Rule 166a(g) of the Texas Rules of Civil Procedure permits a party opposing4

a motion for summary judgment to request a continuance of the hearing on the

mo tion so t hat discovery may be completed. DeAnda v. Jason C. Webster, P.C. , No. 14

- 17

- 0002 0

- CV, 2018 WL 358057 9, at *4 (Tex. App.

— H ouston [14th Dist.] July 26, 2018 , pet. denied) (mem. op.)

. A party contending that it has not had an adequate op portunity for discov ery before a summary

- judgment hearing must either f ile an affidavit explaining the need for further discovery or file a verified

mo ti on for continuance. Muller v. Stewart Title Gu aranty Co. , 5 2 5 S.W.3d 859, 86 6 (Tex. App.

— Houston [14th Dist.] 2 017, no pet .) . Merely filing a motion for continuance is no t enough , standing alone, to preserve error. See id. at 867, n.7 (stating in a su mma ry judgment case, that showing a motion was fi l ed with the
court clerk does not constitute proof that the motion was brough t to the trial court ’s attention or presented to the tr i al court w ith a request f or a ruling)

. Instead, a par ty must obtain a ruling, or object to the trial court ’ s failure to ru le on that party ’ s motion for contin u ance to preserve that issue for appellate review

. See id ; Bryant v. Jeter , 341 S.W.3d 447, 45 1 (Te x. App.

— Dallas 2011, no pet.) ( “ I n this case, the record does not show that B ryant ’ s motion for continuance was brought to the trial
court ’ s attention. Likewise, the record does not show that the trial co urt either denied the motion or refused to r ul e on the motion. And to the extent that the trial court refused to rule on the mo tion, the record does not show that Bryant objected to that refusal. As a result, we conclude that this issue has not been pres erved for appellate review. ”) ; Yazdchi v. Walker , No. 01

- 05

- 0 0177

- C V , 2009 WL 1270395,
at * 2 (Tex. App.

— Houston [1st Dist.] May 7, 2009, p et. denied) (mem. op.) (“Because the recor d does not show that the motion for continuance was filed and brought to the attentio n of the trial court or that the trial court r uled on it before it granted summary judgment, we conclude that the appellants hav e failed to preserve error, if any, on this issue.”).5

Here, while Hood did fi le a motio n for continuance of the s ummary judgme nt proc eeding , he d id not s et the motion for a hear ing , for submission , or other wise bring the motion to the trial court ’ s att ention

. There is also no indic ation in the r ecord that Hood ob jected to the trial court ’ s failure to rule on his motion for

con tinuance. As a resu l t, we conclude Hood faile d to pr e serve error , if an y, on th is issue. We o verrule Hood ’ s firs t issue on app eal.

I I. Hanna & Ha nna estab lished its breach of contract claim as a matter of law. Hood argues in his second issue that the tr ial court erred when it granted Hanna & Hanna ’ s tradi tional motion for summary judg ment on its breach of contract claim. We di sagree.
We review a trial court’s order granti ng a traditional summary judgm ent de

no vo. Mid

- Century Ins. Co. v. Ademaj , 243 S.W .3d 618, 621 (Tex. 2007). In reviewing a gran t of su mmary judgment, we c onsider a ll of the ev idence in the light most fav orable to the no nmovant. Ron v. AirTran Airways, I nc. , 397 S.W.3d 7 85, 788 (Tex. App.

— Hou ston [14 th Dist.] 2013, no pe t.). When a pl aintiff such

as Hanna & Hanna , moves for summa ry judg ment on its cause of acti on, it must conclusiv ely pr ove all essent ial elem ents of its clai m as a ma tter o f law. Cullins v. Foster , 171 S.W.3d 521, 530 (Te x. App.

— H ouston [ 14th Dist.] 2005, pet . denied). Evidence is considered conclusive if reasona bl e peo ple could not differ in t heir conclusions. Di as v. Goodman Mfg. C o., L.P. , 214 S.W.3d 672 , 676 (Te x. App

. — Houston [14th D ist.] 2007, pet. den ied ). The no nmovant h as no bu rden to respond
to a motion for summary judgment unless the movant conclusive ly esta blishes each element of i ts cause of action as a mat ter of law. R hone

- Pou lenc, Inc. v. St eel , 997 S.W.2d 217, 222

– 23 (T ex. 1999). If the mov ant establish es its en titlemen t to judgment, then t he burden shifts to the nonmovant to come forward with6

c om peten t controverting evidence sufficient to raise a genui ne issue of ma terial f act. Muller , 525 S.W.3d at 868

. “A breach of contrac t occurs when a party fails or refuses to do s om ethin g he has promised to do.” XCO Prod. Co. v. Jamison , 194 S.W.3d 622, 632 (Tex. App.

— Houston [14th Dist.] 2006, pet. denied)

. When alleging that a defendant b reached a contract, a plaintiff must prove the follow in g ele ments : (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 br each. Eurecat v. Marklund , 527 S .W.3d 367, 387 (Tex. A pp.

— H ouston [14th Dist.] 2017, no pet. ).

Hanna & Hanna moved for summary judg ment on its breach of contract claim. In support of its motion, it attached an affidavit from Kelly Hanna, a dir ector of Ha nna & H anna. Among other things, Hanna averred that Ho od

“ p laced his order for ou r services. ” Hanna also s tated that Hood “ personally requested the wo rk that we performed for h im, but the i nvoices , attached here to as [an exh ibit], have remained unpa id. ” Hanna also attached seven invoices a s well as two transcript order forms to her affidavit

. Hanna & Hanna ’ s s ummary judgment evidence conclusively established each element of its breach of contract claim. 2 See Cole , 2015 WL 4626750, at *3 ( affirming brea ch of contract finding based o n oral contract f

or court reporting services ); May v. Ticor Title In s. , 422 S.W.3d 93, 100 (T ex. App.

— Houston [14th D ist.] 2 014, no pet.) (“Determining whether a party has breached a contract is a question of law for the court rather than a question of f

act for the jury when the facts of the parties ’ conduct are undisputed or conclusively established.”) ; Gensco v. Transformacio nes

2 Hood did fil e objections to Hanna & Ha nna ’ s summary judgment evid ence. The tr ial court did not rule on those objections

. In addit ion, Hood has not raised any complaint on appeal regarding the obje ctions he lodged to Han n a & Ha nna ’ s summary judgment evidence.7

M etalurgic ias E

speciales, S.A. , 666 S.W.2d 549, 552

– 53 (Tex. App.

— Houston [14th Dist.] 1984, pet. d ism.) (affi rming breach of contract judgment based in part on invoices admitted into evidence ).
Once Hanna & Hanna proved its entitlement to summary judg ment as a matter of law, the b urden shifted to Hood to raise a genuine issue of material fact precludi ng summary judgment. Centeq Realty , Inc. v. Siegler , 899 S

. W. 2d 1 95, 197 (Tex. 1995). Hood attached no evidence to his summary judgment r esponse. As a result, we conclude that he did not meet his b urden to raise a genuine issue of material fact precludi ng summary judgment

. T he tri al court properly gra nted Hanna & Hanna ’ s motion and properly awarded Han na & Hanna breach of
contract d amages in the amount of $7,998.38. See id. We overrule Hood ’ s second issue on ap peal. 3

III. The tr ial court erred when it gr anted Hanna & Han na ’ s mot i on for summary judgment on its attorney ’ s fees claim. Hood argues in his fifth issue on app eal that the trial court erred wh en it
gr anted Hanna & Ha nn a ’ s motion for summary jud gment on Hanna & Ha nna ’ s claim for attorney ’ s fees. Beca use Hanna & Ha nna pres ented no evidence of the fees incurred in t his litigation, we agree.
In support of its claim for $2,500 in atto rney ’ s fees , Hanna & Hanna included an af

fidavit from its attorney, James West. In that affidavit West averred

3 Having overruled Ho od ’ s challen ge to the trial court ’ s sum mary judgment on Han na & Hanna ’ s breach o f contract claim , we need not address his third and f ourth issues challenging the trial court ’ s granting o f Hanna & Hanna ’ s motion for summary judgment on Hanna & Hanna ’ s other causes of a ction. See Tex. R. App. P. 47.1; Star

- T elegram, Inc. v. Doe , 915 S.W .2d 471, 473 (Tex. 1995) (stating th at a no n

- movan t is required to show that each ground alle ged in the motion for summary jud gment was insufficient to s upport summary judgme n t) ; Gonzales v. Thorndale Co operative G in and Grain Co. , 578 S.W.3d 655, 657 (Tex. App.

— Houston [14th Dist.] 2019, no pet.) ( “ When the trial court does not specif y the basis for its summary judgment, the appellant must show that the tr i al court erred to bas e the summar y judgment on every ground asserted in t he motion. ” )

.8

as f ollows:
Service were [sic] rendered or based upon personal experience , will be rendered on be half of Bobcat of Houston Compa ny Division o f Berry C ompanies , I in the prosecution of its clai ms and the collection of its judgment in the above

- captioned matter.
B ecause thi s statement addresses the prov ision of legal services to a different entity , Bobcat of Ho uston , rather than Hanna & Hanna, it constitutes no evidence that Hanna & Hanna incurred $2, 500 in attorney ’ s fe es wh ile pro secuting this case. Se e Ron , 3 97 S.W.3d at 7 88 (stating that a reviewing court must vi ew the evidence in the light most fav orable to the no nmovant )

. Because a summa ry

- judgment
movant m ust prove there is no genuine issue of material fact to prevail on its motion , we conclude th at Hanna & Hanna did n ot establish that it was entitled to summary judgme nt on it s attorney ’ s fee claim. See Rhone

- Poulenc, Inc. , 997 S.W.2d at 22 3 (stating th at because a traditiona l mo tion for summary judgment

m ust stand on its own merits, a nonmovant c an al way s argue on a pp eal that the
movant ’ s summary judgment evidence is insufficient as a matter of law, even if the nonmovant did not file a response); S t ate Farm Fire & Cas. Co. v. Vaughan , 968 S.W .2d 931, 93 3 (Tex . 1998) (citing Tex. R. Civ. P. 166a(c) ). We t herefore

s us ta in Hood ’ s fifth issue and reverse the trial court ’ s summary judgm ent on the award of atto rney ’ s fees to Hanna & Hanna

. C ONCLUSION
Having overruled Hood ’ s issues challenging the trial court ’ s summary judgment on Hanna & Hanna ’ s breach of cont ract cau se o f action , we affirm the portion of th e final summary judgment holding Hood liable for breac h of contract and awarding Hanna & Hanna $7,998.38 in damages

. Havin g sustained Hood ’ s challenge to the trial court ’ s summary judgment awarding Hanna & Hann a
attor n ey ’ s fee s, we reverse that part of the trial court ’ s summary judgment and9

r emand to the trial court for further pro cee di ngs consistent wi th this opinion.

/s/ Jerry Z immerer Justice

P anel con sists of Ju s ti ces Christopher, Bourliot, and Zimmerer.