Revers ed and Remanded and Memorandum Opinion filed May 15 , 201 2
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 11

- 00 260

- C V

NICOLE HILL A/K/A NICOLE HOLTZ , Appellant
V.
TOOTSIES , INC. , Appellee

On Appeal from the County Court at Law No. 4

Harris County, Texas Trial Court Cause No. 969651



### M E M O R A N D U M O P I N I O N

A ppellee, Tootsies, Inc. , sued a ppellant, Nicole Hill a/k/a Nicole Holtz, for breach of contract based on her alleged failure to pay for merchandise purchased from Tootsies’s store. Too t sies filed a motion for summary judgment, to which Hill responded. On December 9, 2010, the trial court signed an order granting Tootsies’s motion for summary judgment and awarding $12,510.62 in actual damages and pre

- and post

judgment interest but no at torney ’s fees , despite Tootsies’s request . Hill timely filed a motion for new trial, which the trial court denied by written order. In two appellate2

i ssue s , Hill challenges the summary judgment. We conclude the trial court err ed by granting summary judg ment in favor of Tootsie s

. Accordingly, we reverse and remand

. 1

S TANDARD OF R EVIEW
A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215

– 16 (Tex. 2003). A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. Cullins v. Foster , 171 S .W.3d 521, 530 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones , 710 S.W.2d 59, 60 (Tex. 1986) ). We review a summary judgment de novo. Knott , 128 S.W.3d at 21 5

. We take all evidence favorable to the nonmo vant as true and indulge every reasonable inference and resolve any doubts in her favor. Id.

A NALYSIS To prevail on a breach

- of

- contract claim, a plaintiff must prove (1) a valid contract existed between the plaintiff and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant ’ s breach. West v. Triple B Servs., LLP , 264 S.W.3d 440, 446 (Tex. App

. — Houston [14th Dist.] 2008, no pet.)

. In its motion for summary judgment, Tootsies asserted that its summary

- judgment evidence established existence of a contract between Tootsies and Hill, she breached the contract by failing to pay for merchandise purc hased from Tootsies “in accordance with the terms of the agreement,” and Tootsies incurred damage s in the amount of $12,510.62. In
suppo rt , Tootsies present ed only the affidavit of Norman Lewis, who averred as follows :

1 In a cross

- issue, Tootsies challenges the trial court’s refusal to award attorney ’s fees and requests that we take judicial notice of reasonable and necess ary attorney’s fees. T his issue is rendered moot by our conclusion that the trial court erred by granting Tootsies’s motion for summary judgment. Nonetheless, w e would lack jurisdiction to consider this issue because Tootsies seeks to alter the trial court’s judgment but did not file a notice of appeal or argue any “just cause” for granting the requested relief absent a notice of appeal. See Tex. R. App. P. 25.1(c)

.3 “ My name is Norman Lewis. I am over the age of 18 years and fully competent to testify to the matter stated in this affidavit. I have personal knowledge of the facts and s tatements contained in this affidavit and each of them is true and correct.

“ I am the Chief Operating Officer a nd an authorized agent of [Tootsies]

.

“ [Hill] has made several retail purchases from [Tootsies]. However, [Hill] has failed to pay, in full, the amount owed to [Tootsies] for these purchases. [ Tootsies] is owed the principal am ount of $12,510.62 from [ Hill]. The remainder of the affidavit pertain ed solely to attorney ’ s fees. Hill p resents two stated issues: (1) because Lewis’s affidavit failed to establish existence of a contract between Tootsies and Hill , a genuine issue of material fact exists; and ( 2) Lewis’s affidavit was insufficient to support summary judgment “without being supported by other factual statements in his affidavit.” Within the body of her argument, Hill conten ds that Lewis failed to demonstrate his averments were based on personal knowledge and the statements a re conclusory. First, Hill complains Lewis failed to explain how he gained personal knowledge of the averments and his assertion that he is Chief Operating Officer and an authorized agent of To otsies was insufficient to demonstrate personal knowledge. However, this complaint is a challenge to the form of Lewis’s affidavit , which Hill waived by failing to obtain a ruling on the objection advanced in her summary

- judgment response

. See Butler

v. Hudson & Keyse, L.L.C. , No. 14

- 07

- 00534

- CV, 2009 WL 402329 , at *2 (Tex. App.

— Houston [14th Dist.] Feb

. 19, 2009 , no pet. ) ( mem. op.) (citing Grand Prairie Indep. Sch. Dist. v. Vaughn , 792 S.W.2d 944, 945 (Tex. 1990) )

. Next, Hill suggest s Lewis’s averments are conclusory

. T his complaint i s a challenge to an alleged substantive defect, which Hill may raise for the first time on appeal

. See Pico v. Capriccio Italian Restaurant , Inc. , 209 S.W.3d 902, 909 (Tex. App.

— Houston [14th Dist.] 2006, no pet.). “‘ A conclusory statement is one that does not4

provide the underlying facts to support the conclusion

. ’ ” Hou

- Tex, Inc. v. Landmark Graphics , 26 S.W.3d 103, 112 (Tex. App.

— Houston [14th Dist.] 2000 , no pet. ) (quoting Rizkallah v. Conner , 952 S.W.2d 580, 58 7 (Tex. App.

— Houston [1st Dist.] 1997, no writ) )

. Although Hill’s contention is not exactly clear , we liberally construe it as an

a rgu ment that Lewis’s averment s are conclusory relative to existence of a contract because he did not include any facts, or reference or attach any documents , proving a contract obligating Hill to pay for the merchandise. Alternatively, we construe Hill’s

ove rall complaint as an argument that Tootsies’s summary

- judgment evidence is legally insufficient to establish existence of a contrac t

. Regardless of how Hill frames her contention, w e agree with the argument

. Lewis’s assertion that Tootsies is “ owed ” a certain amount for merchandise purchased by Hill did not establish existence of a contract. Lewis did not mention a ny
contract or reference or attach any documents proving a contract. Qui te simply, Lewis did not actually demonstrate the basis for Hill’ s alleged obligation to pay for the merchandise, much less what contract she purported ly breached by failing to pay

. In fact, in its petition and motion for summary judgment, Tootsies also provide d no details regarding the alleged contract. In its respons e to Hill’s motion for new trial, Tootsies asserted that it sued Hill for “failure to pay her credit card bills.” However, in its motion for summary judgment, Tootsies did not mention , or present evidence of , a credit

- card agreement. To support her motio n for new trial, Hill attached her own affidavit, averring that she never owned a Tootsies’ credit card. In her appellate brief, Hill notes that she may not rely on this
averment on appeal because this evidence was late filed. However, in its order denying the motion for new trial, the trial court indicated it considered the evidence attached to the motion. See Auten v. DJ Clark, Inc. , 209 S.W.3d 695, 702 (Tex. App.

— Houston [14th Dist.] 2006, no pet.) (recognizing that appel late court may consider late

- filed
summary

- judgment evidence, including evidence presented to support motion for new5

trial , as long as trial court affirmatively indicated in record it accepted or considered the late

- filed evidence). Regardless, because To otsies failed to prove existence of a credit

card agreement, the burden never shifted to Hill to raise a genuine issue of material fact

on existence of such an agreement

. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000)

. In support of Hill’s motion for new trial, she also attached Tootsies’s responses to Hill’s request for production, in which Tootsies answered “ N one” when requested to
pr oduce “[a] copy of the signed contract between” Hill and Tootsies. Again, the burden never shifted to Hill to negate existence of a signed contract. However, e ven if we consider Tootsies’s answer to the discovery request , it failed to provide summary

jud gment evidence of any other documents allegedly establishing a written contract or
prove an oral contract. 2
In sum, because Tootsies failed to conclusively prove existence of a contract, the trial court erred by granting its motion for summary judgment. A ccordingly, w e reverse
t he trial court’s judgment and remand for further proceedings consistent with this opinion.

/s/ C harles W. Seymore Justice

Panel consists of Justice s Frost, Seymore , and Jamison

.

2 Contrary to the statement in its respon se to the motion for new trial, Tootsies suggests in its appellate brief that the suit is not based on a credit

- card agreement but is based on “an account debt. ” Regardless, a t this point, Tootsies has pleaded and moved for summary judgment on only a breac h

- of

contract theory without establishing existence of a contract under which Hill was allegedly oblig ated to pay for the merchandise, whether a credit

- card agreement or other contract.