Opinion issued July 11, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-01035-CV

———————————

SILVER OAK CUSTOM HOMES, LLC, APPELLANT

V.

BRENT TREDWAY AND JENA TREDWAY, APPELLEES

On Appeal from the 151st Judicial District Court

Harris County, Texas

Trial Court Cause No. 2009-29065A 

MEMORANDUM OPINION

This lawsuit arises out of a home remodeling project. Silver Oak Custom 

Homes, LLC (“Silver Oak”) appeals the trial court summary judgment in favor of 

Brent and Jena Tredway. When the project went awry, Silver Oak sued the 

Tredways under multiple liability theories. Silver Oak contends that it presented 

evidence that creates a fact issue regarding each of its claims and the Tredways’ 
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affidavits consist of conclusory statements insufficient to support summary 

judgment. We hold that the trial court erred in granting summary judgment as to 

Silver Oak’s breach of contract claim, suit on sworn account, and quantum meruit

claim, but it properly granted summary judgment against Silver Oak on its claims 

for fraud, defamation, business disparagement, and tortious interference with 

contractual relations. We therefore affirm in part, reverse in part, and remand for 

further proceedings. 

Background

The Tredways hired Silver Oak to build an addition on their home. Over the 

course of the project, the Tredways paid Silver Oak a total of $365,000 in five 

installments. When Silver Oak requested another payment, the Treadways refused 

to pay. Silver Oak ceased work on the project and sued the Tredways for breach of 

contract, quantum meruit, suit on sworn account, statutory and common law fraud, 

defamation, business disparagement, and tortious interference with contractual 

relations. The Tredways counterclaimed for breach of contract and fraud. The trial 

court granted the Tredways’ subsequent traditional motion for partial summary

judgment on Silver Oak’s claims. The trial court severed the partial summary 

judgment, and Silver Oak filed a notice of appeal. The Tredways’ counterclaims 

for fraud and breach of contract remain pending in a separate cause of action in the 
3

trial court. See Tredway v. Silver Oak Custom Homes, LLC, No. 2009-29065, 

(151st Dist. Ct., Harris County, Tex.).

Discussion

I. Appellate Jurisdiction

A partial summary judgment becomes final and appealable upon the 

severing of the parties and claims disposed of by the partial summary judgment 

into a separate cause. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 

1995) (per curiam). Thus, a notice of appeal must be filed within thirty days after 

severance. Id.; TEX. R. APP. PROC. 26.1.

The Tredways initially contend that we lack jurisdiction over this appeal, 

because Silver Oak did not timely perfect it. The Tredways contend that the trial 

court dismissed all claims and parties with the partial summary judgment order.1

But neither the Tredways’ motion for summary judgment nor the trial court’s order 

granting partial summary judgment referred to the Tredways’ then-pending 

counterclaims. The order granting partial summary judgment does not purport to 

dismiss all parties and all claims.

The trial court did not grant the Tredways’ motion to sever Silver Oak’s 

claims from their counterclaims until October 19, 2012. Silver Oak filed its notice 

of appeal on November 7, 2012, well within the thirty-day period after severance. 

 1 The Tredways reference a July 2011 order dismissing all causes and all parties. But after a 

diligent search of the appellate record and the district clerk’s records, we find no such order.
4

See Farmer, 907 S.W.2d at 496; TEX. R. APP. PROC. 26.1. Accordingly, Silver Oak 

timely perfected its appeal.

II. Summary Judgment Proof

Silver Oak contends that the Tredways failed to produce valid summary 

judgment evidence to negate its claims, because their affidavits are based on 

information and belief rather than personal knowledge. An objection that an affiant 

lacks personal knowledge of facts recited in the affidavit or that it lacks a recitation 

that an affiant has personal knowledge of the facts therein is an objection to the 

affidavit’s form. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Dodge v. 

Durdin, 187 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2005, no pet.). To 

preserve an objection to the form of an affidavit, a party must timely object in 

writing to the defect and obtain a ruling from the trial court sustaining or striking 

the evidence. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 

n. 7 (Tex. 1993); Dodge, 187 S.W.3d at 532.

Silver Oak objected in writing to the trial court that both of the Tredways’ 

affidavits stated that they were based on information and belief rather than 

personal knowledge. But it did so more than a year after the trial court granted the 

partial summary judgment. We hold that the objection was untimely to preserve 

this challenge on appeal. See McConnell, 858 S.W.2d at 343 n. 7; Dodge, 187 

S.W.3d at 532.
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III. Summary Judgment Analysis

Silver Oak seeks reversal of the summary judgment, contending that it raised 

a fact issue on each of its claims and that the Tredways’ proof is insufficient to 

support summary judgment. 

A. Standard of Review

We review de novo the trial court’s ruling on a motion for summary 

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 

844, 848 (Tex. 2009). In a traditional motion for summary judgment, like the one 

filed in this case, the movant must establish that no genuine issue of material fact 

exists and the movant is thus entitled to judgment as a matter of law. TEX. R. CIV.

P. 166a(c). When reviewing a summary judgment, we take as true all evidence 

favorable to the nonmovant and indulge every reasonable inference and resolve 

any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 

S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128 

S.W.3d 211, 215 (Tex. 2003).

Traditional summary judgment is proper only if the movant establishes that 

there is no genuine issue of material fact and that the movant is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the 

specific grounds relied upon for summary judgment. Id. A genuine issue of 

material fact exists if the nonmovant produces more than a scintilla of probative 
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evidence regarding the challenged element. See Ford Motor Co. v. Ridgway, 135 

S.W.3d 598, 600 (Tex. 2004). A defendant moving for traditional summary 

judgment must conclusively negate at least one essential element of each of the 

plaintiff’s causes of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 

(Tex. 1997).

Conclusory statements in an affidavit unsupported by facts are insufficient to 

support or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464, 

466 (Tex. 1997). A conclusory statement is one that does not provide the 

underlying facts to support the conclusion and cannot be readily controverted. 

Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Rizkallah v. Conner, 952 

S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also Earle v. 

Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (holding that witness’s affidavit is 

conclusory if it fails to explain basis of witness’s statements to link his conclusions 

to facts).

B. Silver Oak’s Summary Judgment Evidence

The Tredways respond that Silver Oak wrongly relied on its sworn pleadings

to oppose the summary judgment motion because pleadings are not valid summary 

judgment evidence. We agree. Pleadings, even if sworn, are generally not proper 

summary judgment evidence. Hidalgo v. Sur. Sav. and Loan Ass’n, 462 S.W.2d 

540, 544–45 (Tex. 1971); Inwood Forest Comty. Improvement Ass’n v. R.J.S. Dev.
7

Co., Inc., 630 S.W.2d 751, 754 (Tex. App.—Houston [1st Dist.] 1982, no writ). An 

affidavit that adopts the pleadings in the case is also insufficient to support or 

oppose a motion for summary judgment because it cannot transform the pleading 

into evidence. Langley v. Arnold D. Kamen & Co., 455 S.W.2d 820, 824 (Tex. Civ. 

App.—Texarkana 1970, writ ref’d n.r.e.). 

Silver Oak relies on its sworn pleadings, a deposition excerpt, and its agent’s 

affidavit verifying its suit on sworn account as summary judgment evidence that 

raises fact issues about each of its claims. An affidavit required to plead a suit on 

sworn account is proper summary judgment evidence. See Seisdata, Inc. v. 

Compagnie Generale de Geophysique, 598 S.W.2d 690, 692 (Tex. Civ. App.—

Houston [14th Dist.] 1980, writ ref’d n.r.e.). Deposition excerpts are also proper 

summary judgment evidence. McConathy v. McConathy, 869 S.W.2d 341, 341 

(Tex. 1994) (per curiam). Accordingly, in reviewing whether Silver Oak raises a 

fact issue, we consider the deposition excerpt and Silver Oak’s affidavit on its suit 

on sworn account. See Seisdata, Inc., 598 S.W.2d at 692; McConathy, 869 S.W.2d 

at 342.

C. Silver Oak’s Claims

Silver Oak contends that it raised a fact issue as to each of the Tredways’ 

claims, and that the Tredways’ affidavits contain of conclusory statements that are 
8

insufficient to support summary judgment. We review the summary judgment 

evidence on each of Silver Oak’s claims in turn.

1. Breach of Contract

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. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). In their summary judgment motion, the 

Tredways maintain that Silver Oak’s breach of contract claim fails because Silver 

Oak failed to satisfy its obligation to complete construction in a workmanlike 

manner. As summary judgment evidence to support this contention, the Tredways 

averred that “[t]he work provided by Silver Oak Custom Homes, LLC was 

unacceptable. Silver Oak Custom Homes, LLC failed to complete the work in a 

good and workmanlike manner.”

The Tredways provide no particular facts on which they base this 

conclusion. See Anderson, 808 S.W.2d at 55; CA Partners v. Spears, 274 S.W.3d 

51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). They do not explain 

any particular portions of the project completed or the flaws present in the 

completed work to explain the basis of their conclusion that the project was not 

completed in a workmanlike manner. See Earle, 998 S.W.2d at 890. Because the 
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affidavit lacks sufficient factual specificity about the unsatisfactory work of Silver 

Oak, the affidavits, with nothing more, fail to negate Silver Oak’s breach of 

contract claim. See Wadewitz, 951 S.W.2d at 466; Martinez, 941 S.W.2d at 911. 

Accordingly, the trial court erred in granting summary judgment against Silver 

Oak on its breach of contract claim. 

2. Suit on Sworn Account

Texas Rule of Civil Procedure 185 provides a procedure for collecting on an 

open account that applies to any contract “for personal service rendered, or labor 

done or labor or materials furnished, on which a systematic record has been kept.” 

TEX. R. CIV. PROC. 185. The claim must be “. . . supported by . . . affidavit . . . to 

the effect that such claim is within the knowledge of (the) affiant, just and true, that 

it is due, and that all just and lawful offsets, payments and credits have been 

allowed.” TEX. R. CIV. PROC. 185.

Silver Oak attached to its petition and summary judgment response an 

affidavit verifying its suit on sworn account. See TEX. R. CIV. PROC. 185. In that 

affidavit, Silver Oak averred that an open account existed and that it remained 

unpaid. It attached records detailing the cost of materials and labor that it had 

provided. The Tredways answered with a sworn denial. The parties raised a fact 

issue regarding Silver Oak’s claim for suit on sworn account, and the Tredways did 

not negate an element of Silver Oak’s claim. See Ridgway, 135 S.W.3d at 600. 
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Accordingly, the trial court erred in granting summary judgment on Silver Oak’s 

suit on sworn account.

3. Quantum Meruit

The Tredways argued in their motion for summary judgment that Silver 

Oak’s quantum meruit claim fails because quantum meruit and breach of contract 

are mutually exclusive claims, and thus, a party may plead only one. A party 

generally may not recover for quantum meruit if an express contract covers the 

same services or materials. Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988). 

However, a party may plead the two mutually exclusive theories in the alternative 

and submit both theories to a jury. TEX. R. CIV. PROC. 48; Univ. State Bank v. 

Gifford–Hill Concrete Corp., 431 S.W.2d 561, 574 (Tex. Civ. App.—Fort Worth 

1968, writ ref’d n.r.e) (“Although the two theories of recovery are inconsistent, 

they may be pled alternatively under the provisions of Rules 47 and 48, Texas 

Rules of Civil Procedure”). To recover under quantum meruit, a claimant must 

prove that (1) valuable services were rendered or materials furnished; (2) for the 

person sought to be charged; (3) which services and materials were accepted by the 

person sought to be charged, used and enjoyed by him; (4) under such 

circumstances as reasonably notified the person sought to be charged that the 

plaintiff in performing such services was expecting to be paid by the person sought 
11

to be charged. Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 

944 (Tex. 1990).

Silver Oak pleaded its claims for breach of contract and quantum meruit in 

the alternative. Although Silver Oak ultimately could not recover for quantum 

meruit upon a finding that a valid contract existed, Silver Oak may plead and 

proceed on both theories. See Univ. State Bank, 431 S.W.2d at 574. As with Silver 

Oak’s breach-of-contract claim, the Tredways’ conclusory statements regarding 

Silver Oak’s unworkmanlike performance are insufficient to negate an element of 

Silver Oak’s quantum meruit claim. See Martinez, 941 S.W.2d at 911. 

Accordingly, the Tredways failed to satisfy their summary judgment burden to 

defeat Silver Oak’s quantum meruit claim, and the trial court erred in granting 

summary judgment as to Silver Oak’s quantum meruit claim.

4. Fraud

A fraud claim requires proof that: (1) a material misrepresentation was 

made; (2) the representation was false; (3) when the representation was made, the 

speaker knew it was false or made it recklessly without any knowledge of the truth 

and as a positive assertion; (4) the speaker made the representation with the intent 

that the other party should act upon it; (5) the party acted in reliance on the 

representation; and (6) the party thereby suffered injury. Aquaplex, Inc. v. Rancho 

La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009). 
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The Tredways averred that they had never made any false representations or 

promises to any Silver Oak employee. This is an affirmative statement of fact that 

may be readily controverted by any facts regarding specific misrepresentations by 

the Tredways to Silver Oak. See Anderson, 808 S.W.2d at 55. Because Silver Oak 

failed to controvert this statement with valid summary judgment evidence, the 

Tredways negated the first element of Silver Oak’s fraud claims. The trial court 

thus properly granted summary judgment on Silver Oak’s fraud claims.

5. Defamation and Business Disparagement

To recover for defamation, a private plaintiff must prove that the defendant 

(1) published a statement, (2) that was defamatory to the plaintiff, (3) while acting 

negligently as to the truth of the statement. WFAA–TV, Inc. v. McLemore, 978 

S.W.2d 568, 571 (Tex. 1998). Similarly, to prevail on a business disparagement 

claim, a plaintiff must establish that (1) the defendant published false and 

disparaging information about it, (2) with malice, (3) without privilege, (4) that 

resulted in special damages to the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co., 749 

S.W.2d 762, 766 (Tex. 1987). 

The Tredways averred that they did not publish any statements about Silver 

Oak or its employees. This, too, is an affirmative statement of fact, and it may be 

readily controverted with examples of statements the Tredways made to third 

parties regarding Silver Oak. See Anderson, 808 S.W.2d at 55. Because Silver Oak 
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failed to present summary judgment evidence to controvert the first element in 

both its defamation and business disparagement claims, it failed to raise a fact 

issue regarding those claims. The trial court properly granted summary judgment 

on these claims. 

6. Tortious Interference with Prospective and Existing Contracts

To prevail on a claim for tortious interference with existing contracts, a 

plaintiff must show that: (1) contracts existed that were subject to the defendants’ 

interference; (2) the defendants willfully and intentionally committed acts of 

interference; (3) the defendants’ acts proximately caused damages; and (4) actual 

damages or loss occurred. Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 

(Tex. 1993); Rodarte v. Investeco Grp., LLC, 299 S.W.3d 400, 411 (Tex. App.—

Houston [14th Dist.] 2009, no pet.). Similarly, to recover on a cause of action for 

tortious interference with a prospective business relationship, a plaintiff must show

that: (1) there was a reasonable probability he would have entered into a business 

relationship; (2) the defendant acted maliciously by intentionally preventing the 

relationship from occurring with the purpose of harming the plaintiff; (3) the 

defendant was not privileged or justified in his actions; and (4) actual harm or 

damage occurred to the plaintiff as a result. Winston v. Am. Med. Int’l, Inc., 930 

S.W.2d 945, 953 (Tex. App.—Houston [1st Dist.] 1996, no writ). 
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The Tredways averred that they were not aware of any contracts of Silver 

Oak, thus negating the requirement that the defendants willfully and intentionally 

committed acts of interference. Reyna, 865 S.W.2d at 926; Winston, 930 S.W.2d at 

953. Silver Oak presented no summary judgment evidence to controvert the 

Tredways’ statement. In the deposition excerpt attached to its summary judgment 

response, Silver Oak’s president described a settlement between it and another 

subcontractor who was involved in the construction on the Tredways’ home. The 

deposition indirectly references the Tredways but does not address whether they 

were aware of Silver Oak’s contract with the subcontractor or how they might have 

affected Silver Oak’s contractual relations with the subcontractor. Accordingly, 

Silver Oak failed to raise a fact issue, and the trial court properly granted summary 

judgment in favor of the Tredways on Silver Oak’s claims for tortious interference 

with contractual relations.
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Conclusion

We hold that fact issues exist to resolve Silver Oak’s claims for breach of 

contract, suit on sworn account, and quantum meruit, but not Silver Oak’s 

remaining claims. We therefore affirm the trial court’s summary judgment on 

Silver Oak’s claims for fraud, defamation, business disparagement, and tortious 

interference with contractual relations, but we reverse its judgment on Silver Oak’s 

claims for breach of contract, suit on sworn account, and quantum meruit, and 

remand those claims for further proceedings. 

Jane Bland

Justice 

Panel consists of Justices Keyes, Higley, and, Bland.