1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00258-CV

__________________

ROLAND LANDSCAPE CREATIONS LLC 

AND JAMES ROLAND MARTINEZ, Appellants 

V.

TOM COBB AND BOBBIE COBB, Appellees 

__________________________________________________________________

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause No. 18-10-13489-CV

__________________________________________________________________

MEMORANDUM OPINION

Roland Landscape Creations, LLC and James Roland Martinez

appeal a final summary judgment granted in favor of the Tom and Bobbie 

Cobb (“the plaintiffs” or the Cobbs). Because the plaintiffs’ summaryjudgment evidence doesn’t conclusively establish they had the right to 

prevail on the claims they raised in their motion, we will reverse and 

remand. 
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Background

In January 2018, Roland Landscape LLC (“RLC”) agreed to design 

and then execute a landscaping plan on a lot owned by Tom and Bobbie 

Cobb in Spring, Texas. The parties don’t disagree that RLC partially 

completed the work to landscape their lot, but they disagree about 

whether the evidence conclusively proves what the terms of the 

agreement were and the damages resulting from any breach.The Cobbs 

claimed that RLC agreed to execute the landscaping plan based on the 

terms in two written agreements, a contract dated January 29, 2018, and 

a later agreement for more work, dated April 5, 2018. Neither agreement 

was ever signed by a representative of RLC. 

The Cobbs alleged the written contracts required RLC to complete 

its work on the project for $56,010. The Cobbs also claimed they paid RLC 

$54,810 toward completing the work, butthat RLC and James Martinez 

abandoned the job before it was complete. According to Bobbie Cobb, in 

April 2018 she made the last of the payment that make up the total they 

paid to RLC when she paid RLC an additional $9,800 to work on the 

project when James Martinez told her RLC needed more money to “keep 

the project moving.” 
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After RLC quit the project, Bobbie determined it would cost the 

Cobbs $25,837 to finish landscaping their lot. Bobbie based her estimate 

on an estimate she got from a contractor. 

For its part, RLC acknowledges that in January 2018, it presented 

the Cobbs with an initial written proposal to landscape their lot. 

According to RLC, the Cobbs did not accept RLC’s proposal, but instead 

made a counterproposal, which added more terms to the agreement on 

which the parties never mutually agreed. Additionally, RLC notes it 

never signed the Cobbs’ counterproposal or the subsequent order of April 

2018 authorizing more work. RLC also attributed any delays on the 

project to the Cobbs, whom RLC claims controlled RLC’s ability to access 

the Cobbs’ lot. Still, RLC agrees the Cobbs paid RLC $45,810 toward the 

work it completed on the Cobbs lot.

In October 2018, the Cobbs sued RLC and Martinez, alleging they 

failed to complete the work required under the January and April 2018 

writings discussed above. Several months later, the Cobbs filed their 

First Amended Petition asserting the defendants were liable to them on 

six claims. In the amended petition, the Cobbs alleged the defendants (1) 

breached the landscape contract; (2) withheld money that rightfully 
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belonged to the Cobbs—a theory of money had and received; (3) breached

a trust agreement, which the Cobbs alleged is in the January 2018 

agreement; (4) breached their fiduciary duties to properly manage, 

supervise, and safeguard the funds the Cobbs advanced on the project; 

(5) violated Chapter 134 of the Civil Practice and Remedies Code—The 

Texas Theft Liability Act—by unlawfully appropriating the Cobbs’ 

property; and (6) misrepresented or failed to disclose material facts about 

the payments RLC received on the project, which the Cobbs alleged 

amounted to fraud. The Cobbs also sued the defendants for reasonable 

and necessary attorney’s fees. 

In July 2020, the Cobbs moved for summary judgment on three of 

these claims, their claims for breach of contract, fraud, and their claim

under the Texas Theft Liability Act.1 The Cobbs used the following 

evidence to support their motion:

• The Declaration of Bobbie Cobb.

• The unsigned agreement RLC sent the Cobbs, which Tom 

Cobb signed January 2018.

1Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001-.005. 
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• The April 2018 change order for more work, which is 

unsigned.

• Copies of checks written by the Cobbs payable to RLC and to 

a business named Big Chuck’s.

• A Declaration signed by the Cobbs’ attorney, the attorney’s 

resume, and itemized invoices from the attorney’s firm. 

The trial court set the motion for hearing by submissionon August 

7, 2020.2 Three days before August 7, an attorney for the defendants filed 

a motion to abate the hearing or to continue the hearing and alleged 

defendants, according to their attorney, had not received the required 

twenty-one days’ notice of the summary-judgment hearing.3

On August 8, the trial court granted the Cobbs’ motion and denied 

the defendants’ motion, which asked the court to put off the hearing.The 

judgment granting the Cobbs’ motion states the trial court grants the 

“Plaintiffs’ motion in its entirety.” 

2See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 

359 (Tex. 1998) (noting oral hearings on motions for summary judgment 

are not mandatory). 3Tex. R. Civ. P. 166a(c).
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The trial court’s judgment awards the Cobbs nearly $26,000 in 

actual damages, $1,000 in damages for civil theft, approximately $52,000

in exemplary damages, and around $13,000 in attorney’s fees. And even 

though the Cobbs’ motion addressed only three of the plaintiffs’ six 

theories of recovery, the judgment makes it clear that the trial court 

intended its judgment to be final.4 Defendants timely moved for new trial, 

but the trial court allowed the defendants’ motion to be overruled by 

operation of law.5

RLC and Martinez appealed. They raise seven issues in their brief. 

On appeal, RLC and Martinez argue the trial court erred in granting the 

Cobbs’ motion because:

(1) They weren’t provided the required twenty-one days’ notice of 

the hearing on the Cobbs’ motion for summary judgment;

(2) The Cobbs failed to conclusively prove what the terms of the 

parties’ agreement required RLC and Martinez to do;

(3) The Cobbs failed to conclusively prove what amounts they 

were entitled to recover in damages; 

4The judgment states “[t]his is a final, appealable order, disposing 

of all parties and all claims.” So even though the trial court erred in 

giving the Cobbs a judgment that granted them more relief than they 

asked for, the judgment is still considered final for the purposes of

whether it could be appealed. In re Elizondo, 544 S.W.3d 824, 829 (Tex. 

2018) (orig. proceeding). 

5Tex. R. Civ. P. 329b(c), (e). 
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(4) The Cobbs’ summary judgment evidence isn’t conclusive on 

their claims because even though not contradicted, it isn’t 

clear, positive, direct, otherwise credible, and free from 

contradictions and inconsistencies;

(5) As RLC’s agent, Martinez isn’t jointly and severally liable for 

the damages the trial court awarded against RLC;

(6) The trial court granted relief on claims the Cobbs did not 

include in their motion; and 

(7) The trial court erred by awarding the Cobbs exemplary 

damages on their breach of contract claim. 

Standard of Review

To prevail on their motion, the Cobbs had the burden to prove that 

no genuine issues of material fact existed on the claims they raised in 

their motion for summary judgment, such that they were entitled to 

judgment as a matter of law.6 We review the trial court’s ruling granting

the Cobbs’ motion de novo.7 We take as true all evidence favorable to RLC 

and Martinez, and we indulge every inference and resolve any doubts in 

their favor.8

6See id. 166a(c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).

7See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 

2005).

8Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022).
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The trial court’s ruling for the Cobbs depends on its conclusion that 

the Cobbs’ summary-judgment evidence conclusively proved all the 

elements on at least on one of the claims they raised in their motion.

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When the trial court’s judgment doesn’t specify the grounds on which the 

motion is based, the party who appeals must negate each ground on 

which the judgment could have been based.10

Except for the evidence relevant to attorney’s fees, the Cobbs filed 

just one sworn document to support their liability claims—Bobbie Cobb’s 

Declaration. So the question is whether Bobbie’s Declaration, when 

considered with the exhibits discussed above to support it, conclusively 

established the elements of at least one of the three liability theories on 

which the Cobbs moved for summary judgment. As to Bobbie’s 

Declaration, the trial court’s ruling “may be based on uncontroverted 

testimonial evidence of an interested witness . . . if the evidence is clear, 

positive and direct, otherwise credible and free from contradictions and 

inconsistencies, and could have been readily controverted.”11 Even so, 

9See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 226

(Tex. 2022). 10Id. 11City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
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under well-settled Texas law: “Evidence is conclusive only if reasonable 

people could not differ in their conclusions, a matter that depends on the 

facts of each case.”12

Analysis

For convenience, we will address RLC’s and Martinez’s third and 

fourth issues first. In issue three, RLC and Martinez argue the Cobbs 

failed to conclusively prove the amount they are entitled to recover in 

damages. In issue four, the appellants argue the Cobbs’ summaryjudgment evidence isn’t conclusive because Bobbie Cobb’s Declaration 

isn’t clear, positive, direct, otherwise credible, and free from 

contradictions and inconsistencies.

RLC and Martinez contend the Cobb’s evidence is inconclusive and 

Bobbie’s Declaration isn’t credible for three reasons. First, they say the 

Cobbs failed to include the contractor’s estimate that Bobbie relied on to 

state it will cost $25,837 to finish the work, which the Cobbs alleged RLC 

and Martinez promised and failed to provide.13 Second, the appellants 

12Id. 13Bobbie’s Declaration references the estimate she obtained from a 

contractor as Exhibit 4, but the exhibit she referenced in her Declaration 

and swore she attached is not attached to her Declaration or to the Cobbs’ 

motion for summary judgment. 
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argue the summary-judgment evidence doesn’t conclusively prove that 

RLC and Martinez agreed to perform the work that Bobbie swore in her 

Declaration that RLC failed to complete. Third, the appellants argue the 

summary-judgment evidence fails to conclusively prove that RLC was 

paid $54,810 for its work on the project. 

We agree with the appellants that the evidence is insufficient to

conclusively prove what it will cost the Cobbs to complete the project. We 

also agree with RLC and Martinez that the evidence doesn’t conclusively 

prove that RLC was paid $54,810, as Bobbie claimed. 

We turn first to Bobbie’s claim that it will cost the Cobbs $25,837 

to complete RLC’s work. Generally, opinion testimony isn’t sufficient to 

“establish any material fact as a matter of law.”14 Bobbie based her 

opinion on an investigation she claims she conducted to determine what 

it “will cost to perform the unfinished work on our property.” Bobbie 

didn’t say from whom she obtained her estimate, whether she obtained 

more than one estimate, or whether the contractor or contractors she 

contacted were in the landscaping business. That said, there is no 

summary-judgment evidence showing she is qualified to express an 

14McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). 
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opinion about what the reasonable and necessary costs to complete the 

project might be. There is also no summary-judgment evidence from 

anyone qualified to testify about what it might cost to complete RLC’s 

work. The Cobbs provided the trial court with no summary-judgment 

evidence to show the difference, if any, between the value of the work 

RLC agreed to perform under the terms of the January and April 2018 

agreements (assuming without deciding those agreements are conclusive 

proof of the terms of the scope of RLC’s work) and the value of the work 

RLC completed before it quit the project. Thus, the evidence did not 

establish the amount of the Cobbs actual damages on their claims for 

either breach of contract or for fraud. 

Next, we agree with RLC that the evidence doesn’t show the Cobbs 

paid RLC $54,810, even though that’s what Bobbie swore to in her 

Declaration. On appeal, RLC and Martinez note that the checks made 

payable to RLC in the summary-judgment evidence total $45,810. One of 

the checks in evidence, a check for $9,000,is payable to Big Chuck’s. But 

Bobbie’s Declaration and the other summary-judgment evidence doesn’t 

explain what work Big Chuck’s performed on the Cobbs’ lot, whether Big 

Chuck’s worked on the landscaping project directly for the Cobbs or as a 
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subcontractor for RLC, or why Bobbie credited the $9,000 check made 

payable to Big Chuck’s against the payments the Cobbs made to RLC.

As a party to the case, Bobbie is an interested witness. As an 

interested witness, Bobbie’s testimony about what the Cobbs paid RLC 

is neither clear, or positive, or direct, or otherwise credible and free from 

contradictions and inconsistencies.15 Her testimony about what it will 

cost to complete the project is also not credible because the facts she 

included in her Declaration do not show she is qualified to testify about 

the reasonable and necessary costs to complete the project, and she failed 

to provide the court with the estimate that she relied on to form her 

opinion about the cost of completing the work. Simply put, Bobbie’s 

Declaration fails to support the $25,837 the trial court awarded the Cobbs 

as actual damages.

The evidence is also insufficient to support the trial court’s findings 

under the Theft Liability Act.16 Nothing in the record shows RLC 

15See id.; Tex. R. Civ. P. 166a(c).

16Tex. Civ. Prac. & Rem. Code Ann. § 134.002(2) (“‘Theft’ means 

unlawfully appropriating property or unlawfully obtaining services as 

described by Section 31.03, 31.04, 31.06, 31.07, 31.11, 31.12, 31.13, 31.14, 

Penal Code.”); see Tex. Penal Code Ann. 31.03 (Theft of Property). 
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appropriated $45,810 from the Cobbs without their “effective consent.”17

To be sure, a person’s consent is not effective if it is “induced by 

deception.”18 And when a person promises to perform when it is likely to 

affect the other party to the transaction’s judgment and the person 

making the promise knows he intends the promise will not be performed, 

that is a “deception” if it deprives the owner of their property without the 

owner’s effective consent.19 But under the Theft Liability Act, which 

incorporates the sections of the Penal Code relevant to theft, evidence of 

a “failure to perform the promise in issue without other evidence of intent 

or knowledge is not sufficient proof that the actor did not intend to 

perform or knew the promise would not be performed.”20

The summary-judgment evidence shows RLC failed to complete its 

work after promising the Cobbs more money was needed to “keep the 

project moving.” Yet the record lacks any “other evidence of intent or 

knowledge” that Martinez, when he allegedly made that representation, 

knew the money the Cobbs gave him would not be used by RLC on the 

17Tex. Penal Code Ann. § 31.03(b).

18Id. § 31.01(3)(A).

19Id. 20Id. § 31.01(1)(E).
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Cobbs’ project.21 Thus Bobbie’s Declaration—without more—is 

insufficient evidence to conclusively prove that RLC and Martinez 

committed theft because the record lacks other evidence much less 

conclusive evidence to prove that RLC and Martinez knew or intended to 

commit theft. 

Conclusion

For the reasons explained above, we conclude the Cobbs failed to 

meet their burden of conclusively proving the elements of at least one of 

liability theories they raised their motion for summary judgment. We 

sustain issues three and four. We decline to reach issues one, two, and 

five through seven, as these issues would not afford the appellants any 

greater relief.22

Rule 44.1(b) of the Texas Rules of Appellate procedure provides that 

an appellate court may not order a new trial solely on damages when the 

record shows the liability claims were contested. Even though this case 

involved a summary-judgment proceeding, the record shows the 

defendants contested liability by filing a general denial and affirmative 

21Tex. Civ. Prac. & Rem. Code Ann. § 134.002(2) (adopting the 

meaning of theft in Penal Code section 31.03 as to thefts of property). 

22Tex. R. App. P. 47.1.
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defenses. As a result, we reverse the trial court’s judgment and remand 

for further proceedings consistent with the opinion. 

REVERSED AND REMANDED.

_________________________

HOLLIS HORTON 

Justice

Submitted on June 27, 2022

Opinion Delivered February 16, 2023

Before Golemon, C.J., Horton and Wright, JJ.