COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-16-00057-CV 

HOWARD MICHAEL 

LAUDERBACK, INDIVIDUALLY 

AND D/B/A NEW ERA CONTRACT

SERVICES

APPELLANT

V.

FMWB, INC. APPELLEE 

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 15-06246-16

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MEMORANDUM OPINION1

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Appellant Howard Michael Lauderback, individually and d/b/a New Era 

Contract Services, appeals from the trial court’s summary judgment entered in 

favor of appellee FMWB, Inc. Because FMWB conclusively established its right 

 

1See Tex. R. App. P. 47.4.
2

to judgment on its claim for breach of contract, we affirm the trial court’s 

judgment.

I. BACKGROUND

The relevant facts are largely undisputed. Lauderback contracted with the 

Texas Department of Transportation (TDOT) to provide mowing services along 

various roadways located in Cooke County (the contract). The contract included 

several “special provisions,” one of which required Lauderback and any 

subcontractor to provide to TDOT a “Certificate of Insurance,” verifying that either 

Lauderback or the subcontractor provided workers’ compensation insurance in 

an amount “Not Less Than: Statutory.” 

On June 4, 2013, Lauderback and FMWB entered into a subcontract under 

which FMWB agreed to perform these mowing services along a particular Cooke 

County highway (the subcontract). FMWB was to finish the project in 57 working 

days. In exchange, Lauderback agreed to pay FMWB $100,159.26. The 

subcontract apparently incorporated the special provisions included in 

Lauderback’s contract with TDOT.2 FMWB provided a certificate of insurance. 

During a “preaudit review of subcontractor documentation,” Lauderback’s 

insurance carrier informed him that FMWB’s certificate of insurance “was 

 

2FMWB argues that the special provisions in the contract between TDOT 

and Lauderback were not incorporated into its subcontract with Lauderback; 

however, the subcontract reflects that FMWB agreed to perform the services “as 

shown and described in the plans and in accordance with the provisions of the 

referenced specifications and special provisions which are a part of this contract.” 

[Emphasis added.] 
3

inadequate, inaccurate, and did not provide the minimum amount of coverage of 

Workers’ Compensation Insurance as required by the contract.” As a result, 

Lauderback withheld the last payment he owed FMWB on the subcontract—

$42,951.64—“in lieu of the charges that [Lauderback] will have to pay to provide 

workers[’] comp insurance.” FMWB asserts, and Lauderback does not dispute, 

that it performed the mowing services within the 57-day deadline. 

On May 27, 2015, FMWB sent written notice of its claim for the unpaid 

portion of the subcontract to Lauderback and his insurer (the demand letter). 

Lauderback never paid the amount requested in the demand letter: $42,951.64 

plus $1,000 in incurred attorney’s fees. On July 27, 2015, FMWB filed a verified 

petition against Lauderback, alleging a suit on a sworn account and a claim for 

breach of contract. See Tex. R. Civ. P. 185. FMWB also alternatively asserted a 

quantum-meruit claim. FMWB attached to its petition the affidavit of Shawn 

Sloan, FMWB’s president. In turn, Sloan attached to his affidavit a “Statement of 

Claim,” reflecting the total amount Lauderback owed FMWB on the subcontract, 

and the demand letter. 

Lauderback filed a verified denial, denying the account and denying that

“all just and lawful offsets, payments, and credits have been given or allowed.” 

See Tex. R. Civ. P. 93(10), 185. Lauderback also alleged the following 

affirmative defenses: waiver, equitable estoppel, discharge, justification, offset, 

credit, laches, failure to meet conditions precedent, and fraud. See Tex. R. Civ. 

P. 94.
4

FMWB moved for a traditional summary judgment on its claim on a sworn 

account, arguing that it had established as a matter of law “its sworn account 

based upon a written contract or founded on business dealings between the 

parties on which a systematic record has been kept; that the account is just and 

true; and that all lawful offsets, payments, and credits have been allowed,” 

resulting in damage to FMWB “in the sum of $42,951.64.” FMWB also moved for 

summary judgment on its breach-of-contract claim, contending that it had 

established as a matter of law the existence of an enforceable contract between 

the parties and Lauderback’s breach by his failure to pay all amounts owed under 

the subcontract, which resulted in $42,951.64 in damages. In support of its 

motion, FMWB attached Sloan’s affidavit, the demand letter, and portions of the 

subcontract. Sloan’s affidavit again included as attachments the demand letter 

and the “Statement of Claim.” FMWB also argued it was entitled to attorney’s

fees and attached its attorney’s affidavit, reflecting the attorney’s fees it had 

incurred. 

Lauderback responded to the motion, arguing that summary judgment 

would be inappropriate because he had filed a verified denial and because 

genuine issues of material fact existed on FMWB’s breach-of-contract and 

sworn-account claims. Lauderback also argued that he was entitled to an offset. 

Lauderback’s attached summary-judgment evidence consisted of his affidavit, his 

business records regarding the subcontract, and the subcontract. Neither FMWB 
5

nor Lauderback objected to the other’s proffered summary-judgment evidence. 

See Tex. R. Civ. P. 166a(f). 

The trial court granted FMWB’s motion “in its entirety” and entered a final 

judgment awarding FMWB $42,951.64, prejudgment and postjudgment interest, 

attorney’s fees, and court costs. In its judgment, the trial court denied all other 

claims for relief. Lauderback appeals from the trial court’s judgment and argues 

in five issues that the trial court erred by granting summary judgment on FMWB’s 

claims.3 

II. DISCUSSION

A. STANDARD OF REVIEW

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the 

light most favorable to the nonmovant—Lauderback—crediting evidence 

favorable to him if reasonable jurors could and disregarding contrary evidence 

unless reasonable jurors could not. See Mann Frankfort Stein & Lipp Advisors, 

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable 

inference and resolve any doubts in Lauderback’s favor. See 20801, Inc. v. 

 

3Although Lauderback asserts that summary judgment on FMWB’s claim 

for quantum meruit was in error, FMWB did not move for and the trial court did 

not grant summary judgment on that claim. FMWB raised quantum meruit solely 

in the alternative to its contractual claims. See generally Arias v. Brookstone, 

L.P., 265 S.W.3d 459, 469 (Tex. App.―Houston [1st Dist.] 2007, pet. denied) 

(recognizing party may plead quantum meruit in the alternative to contractual 

claims but noting recovery may not be had on both). Thus, we will not address 

Lauderback’s fourth issue and that portion of issue five directed to this claim. 
6

Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary 

judgment on a cause of action if it conclusively proves all essential elements of 

the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 

60 (Tex. 1986). Once a movant produces summary-judgment evidence entitling 

it to summary judgment, the burden shifts to the nonmovant to present evidence 

raising a fact issue on at least one of those elements. See Amedisys, Inc. v. 

Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). We must 

affirm a summary judgment if any of the grounds presented to the trial court are 

meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 

(Tex. 2003).

B. BREACH OF CONTRACT

In its summary-judgment motion, FMWB argued that it had conclusively 

established that Lauderback breached the subcontract “by failing to pay [FMWB] 

for the labor and equipment provided to [Lauderback] under the terms of the 

contract.” In his third issue and part of his fifth issue, Lauderback asserts that the 

trial court erred by granting summary judgment on FMWB’s breach-of-contract 

claim because there were genuine issues of material fact regarding FMWB’s 

performance and whether Lauderback was entitled to an offset based on 

FMWB’s alleged failure to carry the required insurance. Lauderback raised these

arguments in response to FMWB’s summary-judgment motion as well. 

To be entitled to summary judgment on its breach-of-contract claim, 

FMWB had to conclusively establish (1) the existence of a valid contract, 
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(2) FMWB’s performance or tender of performance, (3) Lauderback’s breach of 

contract, and (4) FMWB’s damages as a result of the breach. See Schum v. 

Munck Wilson Mandala, LLP, No. 06-16-00006-CV, 2016 WL 3197159, at *2 

(Tex. App.—Texarkana June 9, 2016, no pet.); Triton 88, L.P. v. Star Elec., 

L.L.C., 411 S.W.3d 42, 56 (Tex. App.—Houston [1st Dist.] 2013, no pet.). No 

party disputed that Lauderback and FMWB had entered into a valid contract or 

that Lauderback had failed to pay FMWB the final installment payment of 

$42,951.64 for the mowing services it timely performed under the subcontract. 

Lauderback argues that summary judgment was improper because FMWB failed 

to conclusively establish that it had fully performed under the subcontract 

because it had failed to provide sufficient workers’ compensation insurance―the 

second element of FMWB’s claim. 

The subcontract incorporated the TDOT special provisions from the 

contract, including the provision requiring subcontractors to provide workers’

compensation insurance in a statutorily required amount through its own 

coverage or through Lauderback’s coverage. On appeal, both Lauderback and 

FMWB point solely to section 505.013 of the labor code as the source of this

statutory duty. See Tex. Lab. Code Ann. § 505.013 (West 2015). That section 

provides that an individual employed by a subcontractor is not considered an 

employee of TDOT for the purposes of insurance unless the subcontractor 

leases “a tractor, a truck, mowing or cutting machinery, or other equipment to 

[TDOT] and us[es] the equipment to perform work under a contract with [TDOT].” 
8

Id.; see also id. § 406.002(a) (West 2015) (providing that employers’ participation 

in state’s workers’ compensation scheme is voluntary “except for public 

employees and as otherwise provided by law”). Here, Lauderback did not assert 

that FMWB had leased equipment to TDOT to perform the subcontract. Indeed, 

the subcontract recognized that FMWB was “fully equipped” and that it had 

agreed to perform all of its contractual work “at its own proper cost and expense.” 

Therefore, under the terms of section 505.013―the sole statute identified by the 

parties as defining the applicability and scope of a subcontractor’s workers’ 

compensation obligations―FMWB was not under a duty to provide a certificate 

of insurance under the subcontract even though the TDOT special provision was 

incorporated into the subcontract.

Lauderback’s assertion in his affidavit that his insurer informed him that 

FMWB’s certificate of insurance was “inadequate” and “inaccurate” failed to raise 

a fact issue regarding FMWB’s performance in light of the limits of section 

505.013. Similarly, Lauderback’s assertion that it was entitled to an offset, 

thereby raising a fact issue regarding FMWB’s performance and damages, is

unavailing. First, this argument rests on Lauderback’s contention that FMWB 

failed to provide the insurance required under the subcontract. As we have 

concluded, the special provision incorporated into the subcontract did not require 

FMWB to provide a certificate of insurance to TDOT. Second, Lauderback failed 

to conclusively establish the affirmative defense of offset upon which he had the 
9

burden of proof.4 To establish offset, Lauderback had to produce conclusive 

evidence of the existence and amount of damages caused by FMWB’s alleged 

failure. See Mathis v. Benavides, No. 04-15-00555-CV, 2016 WL 3020893, at *5 

(Tex. App.―San Antonio May 25, 2016, pet. filed) (mem. op.). In Lauderback’s 

January 14, 2016 affidavit, which was prepared more than two years after 

Lauderback withheld his final payment to FMWB, he could not state the damages 

he had incurred as a result of FMWB’s alleged failure to provide a sufficient 

certificate of insurance to TDOT: 

I paid FMWB for all of their work on all of the contracts, with the 

exception of the last payment due. . . . The money that is being 

withheld is in lieu of the charges that I will have to pay to provide 

workers[’] comp insurance.

. . . . 

Because FMWB has not provided proper Workers[’] Comp 

Insurance documentation, I will have to purchase coverage for the time 

period of their work. I have requested information from State Farm 

regarding this and as of the date of this affidavit, I do not have the final 

information regarding how much this will cost or when it will cost you 

money. 

 

4We assume without deciding that Lauderback’s claim of “offset” is an 

affirmative defense―as Lauderback pleaded in the trial court and asserts on 

appeal―and not a counterclaim―as FMWB contends. Whether it was an 

affirmative defense or a counterclaim, Lauderback had the burden to produce 

summary-judgment evidence establishing the amount of his damages, which he 

did not do. See Davis v. Am. Express Bank, FSB, No. 03-12-00564-CV, 

2014 WL 4414826, at *4 (Tex. App.―Austin Aug. 29, 2014, no pet.) (mem. op.); 

Triton 88, 411 S.W.3d at 60; Bellair, Inc. v. Aviall of Tex., Inc., 819 S.W.2d 895, 

899–900 (Tex. App.―Dallas 1991, writ denied). See generally Tex. R. Civ. P. 94 

(listing affirmative defenses that must be pleaded), 97(a) (defining compulsory 

counterclaims). 
10

There is no evidence that any claim for a work-related injury regarding the 

subcontract has been filed.

FMWB conclusively proved all essential elements of its breach-of-contract 

claim through its summary-judgment evidence, and Lauderback failed to raise a 

fact issue on any of these established elements. See, e.g., Sw. Pipe Servs., Inc. 

v. Sunbelt Rentals, Inc., No. 01-15-00124-CV, 2016 WL 888780, at *3–5 (Tex. 

App.―Houston [1st Dist.] Mar. 8, 2016, no pet.) (mem. op.); Kleas v. Clark, 

Thomas & Winters, P.C., No. 03-12-00755-CV, 2013 WL 4516120, at *2 (Tex. 

App.―Austin Aug. 21, 2013, pet. denied) (mem. op.); Law Office of David E. 

Williams, II, P.C. v. Fort Worth Tex. Magazine Venture, LP, No. 02-10-00373-CV, 

2011 WL 2651865, at *1–2 (Tex. App.―Fort Worth July 7, 2011, no pet.) (mem. 

op.); UL, Inc. v. Pruneda, No. 01-09-00169-CV, 2010 WL 5060638, at *11–15 

(Tex. App.―Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op.). Accordingly, 

the trial court did not err by granting judgment as a matter of law in favor of 

FMWB on its claim for breach of contract. 

III. CONCLUSION

FMWB conclusively established each element of its claim for breach of 

contract, and Lauderback failed to raise a fact issue as to those established 

elements. We overrule issue three and that portion of issue five directed to 

FMWB’s breach-of-contract claim. We need not address issue one, issue two, or

that portion of issue five directed to FMWB’s suit on a sworn account. See Tex. 

R. App. P. 47.1. A suit on a sworn account is not an independent cause of action 
11

but is a procedural device by which a plaintiff may recover for certain types of 

contractual claims. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 

862 (Tex. 1979). Because we have upheld the summary judgment on FMWB’s 

breach-of-contract claim, we are not required to address the propriety of the 

summary judgment on its suit on a sworn account. See Burruss v. Citibank 

(S.D.), N.A., 392 S.W.3d 759, 762 (Tex. App.―Dallas 2012, pet. denied) (after 

affirming summary judgment on breach-of-contract claim, declining to address 

summary judgment regarding claim for account stated). Finally and as we 

previously stated, we will not address issue four or that portion of issue five 

directed to FMWB’s quantum-meruit claim. Accordingly, we affirm the trial 

court’s judgment. See Tex. R. App. P. 43.2(a). 

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: October 6, 2016