i 

### Cause No. 13- 15 -233- CV

In The Court of Appeals For the Thirteenth Appellate District Corpus Christi, Texas ROCASS L.L.C., D/B/A ROCASS HOMES APPELLANT

v. NANCY ZAZUETA APPELLEE



## BRIEF OF APPELLANT ROCASS L.L.C. D/B/A ROCASS HOMES

__/s/_ Thomas G. Rayfield

_____ Thomas G. Rayfield State Bar No. 16615825 1300 North Tenth Street, Suite 300 McAllen, Texas 78501-4392 Telephone (956) 994-1155 Telecopier (956) 994-1148



## ORAL ARGUMENT WAIVED ACCEPTED 13-15-00233-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 10/14/2015 2:08:40 PM Dorian E. Ramirez

CLERKii 

### TABLE OF CONTENTS
CERTIFICATE OF PARTIES iv
TABLE OF AUTHORITIES v WAIVER OF ORAL ARGUMENT xiv
STATEMENT OF THE NATURE OF THE CASE 2 ISSUES PRESENTED 3 STATEMENT OF FACTS 4 SUMMARY OF ARGUMENT 10 ARGUMENT 11 [A] Summary Judgments Generally Improper 11 [B] Home Owner Failed to Present Competent Evidence 15 {1} S OME E XHIBITS W ERE N OT S WORN 15 {2} H EARSAY C

ANNOT S UPPORT S UMMARY J UDGMENT 16 {3} N O C OMPETENT E VIDENCE = N O S UMMARY J UDGMENT 24 [C] Ignoring Defects, Home Owner Presented Insufficient Evidence 24 {1} N O E VIDENCE OF C ONTRACT W ITH H OME O WNER 25 {2} N O E NFORABLE C ONTRACT W ITH H OME O WNER ' S A SSOCIATION 26 {3} I NS UFFICIENT E VIDENCE OF D AMAGES P RESENTED 30 [ D ] Builder Defeated Summary Judgment by Questioning Terms 34 {1} N ON M OVANT D EFEATS M OTION B Y C REAT ING A F ACT I SSUE 34iii

{2} F ACT I SSUE C REATED BY D ISPUTING C ONTRAC T UAL T ERMS 37 [ E ] Recovery Under Texas Residential Liability Act 39 CONCLUSION AND PRAYER 40 CERTIFICATE OF COMPLIANCE 41 CERTIFICATE OF SERVICE 41iv 

### CERTIFICATE OF PARTIES Appellant does hereby certify that the following are the parties and their attorneys in this matter:
APPELLANT ROCASS L.L.C., D/B/A ROCASS HOMES 1117 S outh Shary Road Mission, Texas 78572
APPELLANT'S COUNSEL
THOMAS G. RAYFIELD 1300 North Tenth Street, Suite 300 McAllen, Texas 78501

- 4392 Telephone (956) 994

- 1155 Telecopier (956) 994

- 1148
APPELLEE Nancy Zazueta 4217 Ben Hogan Ave

. McA llen T exas 78503
APPELLEE'S COUNSEL
Armando M. Guerra & Associates PLLC 113 North 9th Avenue Edinburg, Texas 78541 (956) 616

- 4641v 

### TABLE OF AUTHORITIES
C ASES Aldridge v. De Los Santos , 878 S.W.2d 288, 297 ( Tex. App.

-- Corp us Christi, 1994, writ dism'd w.o.j.) 22 Allied Marketing Group, Inc. v. Paramount Pictures Corp. , 111 S.W.3d 168, 172 ( Tex. App

. -- Eastland 2003, pet. denied ) 14 Amaya v. Potter , 94 S.W.3d 856, 861 ( Tex. App.

-- Eastland 2002, pet. denied ) 14 Amerada Hess Corp. v. Wood Group Production Technology , 30 S.W.3d 5 (Tex. App.

-- Houston [14th Dist.] 2000, pet. denied) 32 Anderson v. Snider , 808 S.W.2d 54, 55 (Tex. 1991) 23 Arellano v. Americanos USA, LLC , 334 S.W.3d 326, 329 (Tex. App.

-- El Paso 2010, no pet) 14 Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W.2d 812, 818 (Tex. 1997) 23 Associated Indem. Corp. v. CAT Contracting, Inc. , 964 S.W.2d 276, 284 (Tex. 1998) 32 Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc. , 278 S .W.3d 470, 476 ( Tex. App.

-- Houston [ 14 th Dist. ] 2009 , no pet.) 13 Balawajder v. Texas Dept. of Criminal Justice Institutional Div. , 217 S.W.3d 20, 27 n. 6 (Tex. App.

-- Houston [1st Dist.] 2006, pet. denied) 34 Ballis v. Urban National Bank , 770 S.W.2d 590, 592 (Tex. App.

-- Houston [14th Dist.] 1989, no writ) 36 Barrera v. Sanchez , 679 S.W.2d 704, 705 (Tex. App.

-- San Antonio 1984, no writ) 16vi

Bennack Flying Service, Inc. v. Balboa , 997 S.W.2d 748, 751 (Tex. App.

-- Corpus Christi 1999, writ dism'd w.o.j.) 12 Birdwell v. Long , 508 S.W.2d 466, 468 (Tex. Civ. App.

-- Amarillo 1974, no writ) 35 Board of Adjustment of City of San Antonio v. Leon , 621 S.W.2d 431, 434 (Tex. Civ. App.

-- San Antonio 1981, no writ) 15 Brazos River Conservations & Reclamation Dist. v. Harmon , 178 S.W.2d 281, 292 (Tex. Civ. App.

— Eastland 1944, writ ref’d) 36 Cedyco Corp. v. Whitehead , 253 S.W.3d 877, 880 (Tex. App.

-- Beaumont 2008, pet. denied) 18 City of San Anto nio ex rel. City Public Service Bd. v. Bastrop Cent. Appraisal Dist. , 275 S.W.3d 919, 923 (Tex. App.

-- Austin 2009, pet. dism’d) 33 Cline v. Southwest Wheel & Mfg. Co. , 390 S.W.2d 297, 299 (Tex. Civ. App.

-- Amarillo 1965, no writ) 18 Crawford v. Pullman, Inc. , 630 S.W.2d 377, 379

- 80 (Tex. App.

-- Houston [14th Dist.] 1982, no writ) 25 Day Cruises Maritime, L.L.C v. Christus Spohn Health System , 267 S.W.3d 42, 57 ( Tex. App.

-- Corpus Christi 2008, pet. denied) 30 Deverian v. Aviall of Texas, Inc. , 1991 WL 218799 at 4 (Tex. App.

-- Dallas 1991, no writ) 37 Digby v. Texas Bank , 943 S.W.2d 914, 923 (Tex. App.

-- El Paso 1997, writ denied) 37 Dob's Tire and Auto Center v. Safeway Ins. Agency , 923 S.W.2d 715, 718 (Tex. App.

-- Houston [1st Dis t.] 1996, writ dism’d w.o.j.) 11 Domingo v. Mitchell , 257 S.W.3d 34, 40 ( Tex. App.

-- Amarillo 2008, pet. denied ) 27 Doss v. Homecomings Fin. Network, Inc. , 210 S.W.3d 706, 713 (Tex.vii

App.

-- Corpus Christi 200 6, pet. denied) 27 Drew v. Lauder , 647 S.W.2d 749, 751 (Tex. App.

-- Corpus Christi 1983, writ ref' d n.r.e.) 35 Easley v. State , 986 S.W.2d 264, 269 (Tex. App.

-- San Antonio 1998, no p.d.r.) 17 E.B. Smith Co. v. United States Fidelity & Guar. Co. , 850 S.W.2d 621, 624 (Tex. App.

-- Corpus Christi 1993, writ denied) 14 Eberstein v. Hunter , 260 S.W.3d 626, 630 ( Tex. App.

-- Dallas 2008 , no pet.) 23 Ellert v. Lutz , 930 S.W.2d 152, 155 (Tex. App.

-- Dallas 1996, no writ) 36 Empire Finance Service, Inc. v. Western Preferred Life Ins. Co. , 461 S.W.2d 489, 490 ( Tex. Civ. App.

-- Waco 1 970, writ ref ' d ) 17 Farley v. Farley , 731 S.W.2d 733 (Tex. App.

-- Dallas 1987, no writ) 17 Farley v. Prudential Insurance Co. , 480 S.W.2d 176, 178 (Tex. 1972) 12 Fibreboard Corp. v. Pool , 813 S.W.2d 658, 676 ( Tex. App.

-- Texarkana 1991 , writ denied ) , cert. denied , 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993) 20 Fisher v. Yates , 953 S.W.2d 370, 380 (Tex. App.

-- Texarkana 1997), writ denied per curiam , 988 S.W.2d 730 (Tex. 1998) 35 Gaines v. Hamman , 163 Tex. 618, 358 S.W.2d 557, 562 63 (1962) 35 Gentry v. Squires Construction, Inc. , 188 S.W.3d 396, 404 (Tex. App.

-- Dallas 2006 no pet.) 39 Gerland's Food Fair, Inc. v. Ha re , 611 S.W.2d 113, 116 (Tex. Civ. App.

-- Houston [1st Dist.] 1980, writ ref'd n.r.e.) 17 Gonzalez v. City of Mission , 620 S.W.2d 918, 922 (Tex. Civ. App.

-- Corpus Christi 1981, no writ) 30viii

Good v. Baker , 339 S.W.3d 260, 273 ( Tex. App.

-- Texarkana 2011, pet. denied ) 21 Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965) 12 Green v. Unauthorized Practice of Law Comm. , 883 S.W.2d 293, 297 (Tex. App.

- - Dallas 1994, no writ) 22 Greenville Ave. State Bank v. Lang , 421 S.W.2d 748, 751 (Tex. Civ. App.

-- Dallas 1967, no writ) 23 Guillen ex rel. Guillen v. Potomac Ins. Co. of Illinois , 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1 , 14 ( 2003 ) 31 Gulbekian v. Penn , 151 Tex. 412, 252 S.W.2d 929, 931 (1952) 11 Hall v. Harris County Water Control & Improvement Dist. , 683 S.W.2d 863 (Tex. App.

-- Houston [14th Dist.] 1984, no writ) 38 HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board , 235 S.W.3d 627, 658 (Tex. 2007) 34 Horn v. First Bank of Houston , 530 S.W.2d 864, 865 (Tex. Civ. App.

-- Houston [ 14th Dist. ] 1975, no writ) 16 Houston Lighting & Power Co. v. Wheelabrator Coal Services Co. , 788 S.W.2d 933, 935 (Tex. App.

-- Houston [14th Dist.] 1990, no writ) 12 Howe v. Kroger Co. , 598 S.W.2d 929, 931 (Tex. Civ. App.

-- Dallas 1980, no writ) 22 In re 24R, Inc. , 324 S.W.3d 564, 567 (Tex. 2010) 27 In Re Price's Estate , 375 S.W.2d 900, 904 (Tex. 1964) 40 In re SSP Partners , 241 S.W.3d 162, 170 ( Tex. App.

-- Corpus Christi 2007, pet. denied) 29 International Insurance Co. v. Herman G. West, Inc. , 649 S.W.2d 824 825 (Tex. App.

-- Fort Worth 1983, no writ) 11ix

Keaton v. R. Dakin & Co. , 716 S.W.2d 726, 727 (Tex. App.

-- Corpus Christi 1986, no writ) 12 Kotzur v. Kelly , 791 S.W.2d 254, 256 (Tex. App.

-- Corpus Christi 1990, no writ) 15 Laidlaw Waste Systems, Inc. v. City of Wilmer , 904 S.W.2d 656, 660 (Tex. 1995) 18 Lee v. McCormick , 647 S.W.2d 735, 737 (Tex. App.

-- Beaumont 1983, no writ) 12 M.D. Anderson Hospital and Tumor Institute v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000) 25 Magnuson v. Mullen , 65 S.W.3d 815, 828 (Tex. App.

-- Fort Worth 2002, pet. denied) 18 Mandell v. Hamman Oil & Ref. Co. , 822 S.W.2d 153, 161 (Tex. App.

-- Houston [1st Dist.] 1991, writ denied) 27 MCI Telecommications Corp. v. Tex. Util. Elec. Co. , 995 S.W.2d 647, 651 (Tex. 1999) 29
Mercer v. Daoran Corp. , 676 S.W.2d 580, 583 (Tex. 1984) 22 Merit Drilling Co. v. Honish , 715 S.W.2d 87, 92 ( Tex. App.

-- Corpus Christi 1986, w rit ref'd n.r.e. ) 29 Miller v. State and County Mutual Fire Ins. Co. , 988 S.W.2d 326, 330 (Tex. App.

-- C orpus Christi 19 99, no writ) 13 Moeller v. Fort Worth Capital Corp. , 610 S.W.2d 857, 860 (Tex. Civ. App.

-- Fort Worth 1982, writ ref'd n.r.e.) 13 Montgomery v. Kennedy , 669 S.W.2d 309, 311 (Tex. 1984) 13 Moore v. Memorial Hermann Hospital System, Inc. , 140 S.W.3d 870, 874 ( Tex. App.

-- Houston [ 14 th Dist. ] 2004 , no pet. ) 20x

Motel Enterprises, Inc. v. Nobani , 784 S.W.2d 545 (Tex. App.

-- Houston [1st Dist.] 1990, no writ) 37 Munoz v. Gulf Oil Co. , 693 S.W.2d 372, 374 (Tex. 1984 ) 24 Nationwide Property and Cas. Ins. Co. v. McFarland , 887 S.W.2d 487, 490 (Tex. App.

-- Dallas 1994, writ denied) 11 Neimes v. Ta , 985 S.W.2d 132, 137 (Tex. App.

-- San Antonio 1998, writ dism'd by agr.) 18 Newberry v. Tarvin , 594 S.W.2d 204, 206 (Tex. Civ. A pp. -- Corpus Christi 1980, no writ) 11 Ortega v. City Nat. Bank , 97 S.W.3d 765, 772 ( Tex. App.

-- Corpus Christi 2003, no pet .) 30 Ortiz v. State , 999 S.W.2d 600, 607 ( Tex. App.

-- Houston [ 14 th Dist. ] 1999 , no p.d.r. ) 19 Parfait v. Jahncke Service, Inc. , 484 F.2d 296, 301 (5th Cir. 1973) 31 Pennington v. Brock , 841 S.W.2d 127, 132 ( Tex. App.

-- Hous ton [ 14 th Dist. ] 1992, no writ) 21 Perkins v. State , 367 S.W.2d 140, 146 (Tex. 1963) 3 3 Pjetrovic v. Home Depot , 411 S.W.3d 639 , 647 (Tex. App.

-- Texarkana 2013 , no pet. ) 19 Portnow v. Berg , 593 S.W.2d 843, 845 (Tex. Civ. App.

-- Houston [1st Dist.] 1980, no writ) 35 Powell v. Vavro, McDonald, and Associates, L.L.C. , 136 S.W.3d 762, 765 (Tex. App.

-- Dallas 2004, no pet.) 17 Quick v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1998 ) 13 Red Henry Painting Co. v. Bank of North Texas , 521 S.W.2d 339, 343 ( Tex

. Civ . App.

-- Corpus Christi 1975, no writ ) 18xi

Riddle v. Unifund CCR Partners , 298 S.W.3d 780, 783 ( Tex. App.

-- El Paso 2009 , no pet.) 21 Roberts v. Geo Source Drilling Services, Inc. , 757 S.W.2d 48, 51 (Tex. App.

-- Houston [1st Dist.] 1988, no writ) 36 Schwartz v. State , 120 Tex.Cr.R. 252, 46 S.W.2d 985, 987 (1931) 17 Shamrock Foods Co. v. Munn & Assocs., Ltd. , 392 S.W.3d 839, 846 (Tex. App.

-- Texarkana 2013, no pet.) 18 Sorrells v. Giberson , 780 S.W.2d 936, 937
- 38 ( Tex. App.

-- Austin 1 989, writ denied) 25 Southwestern Elec. Power Co. v. Grant , 73 S.W.3d 211, 214 (Tex. 2002 ) 12 State v. $11,014.00 , 820 S.W.2d 783, 785 (Tex. 1991) 36 State Farm Fire & Casualty Co. v. Gandy , 925 S.W.2d 696 (Tex. 1996) 31 Stine v. Stewart , 80 S.W.3d 586, 589 (Tex. 2002) 29 Stockton v. Offenbach , 3 36 S.W.3d 610, 618 (Tex. 2011) 33
Tawes v. Barnes , 340 S.W.3d 419, 424 (2011) 29 Tesoro Petroleum Corp. v. Coastal Refining & Marketing, Inc. , 754 S.W.2d 764, 767 (Tex. App.

-- Houston [1st Dist.] 1988, no writ) 36 Texas Commerce Bank

- Rio Grande Valley, N.A . v. Correa , 28 S.W.3d 723, 726 ( Tex. App.

-- Corpus Christi 2000, pet. denied) 13 Texas International Airlines v. Wits Air Freight , 608 S.W.2d 828 , 830 (Tex. Civ. App.

-- Dallas 1980, no writ) 25 Texas Emp. Ins. Ass'n v. Collins , 321 S.W.2d 119, 122 (Tex. Civ. App.

-- El Paso 1959, writ ref'd n.r.e.) 17 Texas Farm Bureau Cotton Ass'n v. Stovall , 113 Tex. 273, 253 S.W.xii

1101, 1104 ( 1923 ) 28 Totman v. Control Data Corp. , 707 S.W.2d 739, 742

- 43 (Tex. App.

-- Fort Worth 1986, no writ) 14 Treadway v. Holder , 309 S.W.3d 780, 785 (Tex. App.

-- Austin 2010, pet. denied) 34 Triton Commercial Properties, Ltd. v. Norwest Bank Texas, N.A. , 1 S.W.3d 814, 817 (Tex. App.

-- Corpus Christi 1999, no writ) 12 Tucker v. Atlantic Richfield Co. , 787 S.W.2d 555, 557 (Tex. App.

-- Corpus Christi 1990, no writ) 15 United Parcel Service v. Helen of Troy Corp. , 536 S.W.2d 415 , 417 (Tex. Civ. App.

-- El Paso 1976, no writ) 37 Valley Stockyards Co. v. Kinsel , 369 S.W.2 d 19, 20 (Tex. 1963) 35 Walton v. City of Midland , 24 S.W.3d 853, 855 ( Tex. App.

-- El Paso 2000 , no pet.) 14 Ward v. Crow , 476 S.W.2d 77 (Tex. Civ. App.

-- El Paso 1972, no writ) 37 Watson v. Citimortgage, Inc. , 814 F.Supp.2d 726, 732 (E.D. Tex. 2011) 27 Wood v. Self

, 362 S.W.2d 188 (Tex. Civ. App.

-- Dallas 1962, no writ) 18 Wright v. Lewis , 777 S.W.2d 520, 524 ( Tex. App.

-- Corpus Christi 1989, writ denied ) 19 Youngstown Sheet and Tube Co. v. Penn , 363 S.W.2d 230, 232 (Tex. 1962) 17

S TATUTES AND R ULES Tex. Prop. Code §27.004(g) 33xiii

Tex. Prop. Code §27.005 39 Tex. R. Evid. 803 19

O THER A UTHORITIES Jackson, Unlicensed to Drill: Proposed Renovations to the Texas Residential Construction Commission Act , 36 S T
. M ARY ' S L.J. 753, 754 (2005) 39 McKenzie, P RIVATOPIA : H OMEOWNER A SSOCIATIONS AND T HE R ISE OF R ESIDENTIAL P RIVATE G OVERNMENT (1996) 28

1 W ILLISTON O N C ONTRACTS §7:14 (4th ed. 2014) 27xiv



### WAIVER OF ORAL ARGUMENT Certain required items do not assist in the resolution of an appeal. The most obvious is table of authorities; hours and hours are wasted on

a lphabetizing cases needlessly (especially when it is doubtful whether most of the cases are actually read) . Another matter which does not assist in the resolution of an appeal is oral argument. While attorneys love to talk (and hear the sound of their own voice) , their hot air does not assist in writing opinions, especially after seve ral months have passed. Accordingly, Appellant waives oral argument.1 

### Cause No. 13 - 15 - 233 - CV

In The Court of Appeals For the Thirteenth Appellate District Corpus Christi, Texas ROCASS L.L.C., D/B/A ROCASS HOMES APPELLANT

v. NANCY ZAZUETA APPELLEE



## BRIEF OF APPELLANT R O CASS L.L.C. D/B/A ROCASS HOMES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ROCASS L.L.C. d/b/a ROCASS HOMES , Appellant in the above styled and numbered cause, and files this its
BRIEF OF APPELLANT , demonstrating that the trial court erred in granting summary judgment, because the summary judgment movant failed to present s ufficient competent evidence to establish her claims as a matter of law, and because genuine factual dispute s exist , i.e., what were
the terms of the alleged contract in question, and whether the setoff for this property belongs on the east side or on the west side

.2



### STATEMENT OF THE NATURE OF THE CASE
This case involves a property set off ; the home owner thought the set off belonged on the west side, while the architect, the builder and the City of
McAllen all thought the setoff belonged on the east side. To maintain her space, the home owner en tered into a settlement with her adjoining neighbor, paying him $18,000 for a three and a half foot setoff. She then sought to recoup this amount of this settlement fro m her builder, along with attorney's fees in roughly the same amount

. Despite the clear factual dispute as to the proper location of the applicable setoff , the home owner filed a motion for summary judgment, supported by incompetent evidence;
most of it w as inadmissible hearsay, and indeed, the home owner failed to prove the existe nce of any contractual provision, requiring the setoff. Naturally, in response, the builder objected

. It also presented its own competent evidence, clearly demonstrating that the required set off was on the east side, and the Home Owner's Association approved plans with a
zero setoff on the west side. Despite the lack of competent evidence to support the motion , and the disputed nature of the competent evidence properly befor e it , the trial court, County Court at Law No. 7, Sergio Valdez presiding, inexplicably granted the summary judgment. This appeal naturally followed.3 

### ISSUES PRESENTED Did the trial court err in granting summary judgment? Must a traditional summary judgm ent be supported by competent
evidence? Do documents constitute hearsay? Do pleadings constitute hearsay? Are a movant's pleadings competent summary judgment evidence? Does certification by a court clerk render the document not hearsay?
Must business records satisfy all elements of predicate before they are
admissible?
If the business records affidavit fails to include evidence that records were collected in the regular course of business, do the attached documents remain hearsay?
Can a movant obtain a summary judgment premised on a conclusory affidavit claiming building plans complied with subdivision plans? Can a movant obtain a summary judgment on conclusory attorney's fees from his attorney ? In order to obtain summary judgment for breach of contract, must
the plaintiff present a full and complete copy of the contact?
In order to obtain summary judgment, must the breach of contract4

plaintiff prove the existence of the disputed term?
Must a co ntract possess mutuality of obligation to be enforceable ? Is a third party beneficiary contract created by acknowledgement of reading terms? In order to recoup monies paid in a settlement, must the seeking party prove the settlement was reasonable and ma de in good faith? Is summary judgment proper when the parties dispute the terms of
the ir agreement? Does the Texas Residential Construction Act create a cause of action? If a party cannot recover on his underlying cause of action, can he
recover under t he Texas Residential Construction Act?



### STATEMENT OF FACTS As the poet Robert Frost has noted , g ood fences make good neighbors

. Frost , Mending Wall . But to erect a fence, room must exist between the property's boundary line and the house neighboring house

. The case at bar involves the lack of such distance, and whose fault was it. Nancy Zazueta , Appell ee herein, purchased Lot 35 in the Falling
Wa ter at Bentsen Lake Subdivision in McAllen, to bu ild a home. Cl.R. 993

- 95
. Appell ee (hereinafter referr ed to as "Home O wner") retained Grupo Calqueza, a n architectural firm in Reynosa, Mexico to design her house

.5

These plans contained a six foot setback on the west side , i.e. six feet lay
between her property line and outside wall of the house. Cl.R. 1058

- 76

. Because they were premised on an incorrect lot size , the house plans prepared by Grupo Calqueza w ere rejected. Cl.R. 1208, 1211. Accordingly,
Home Owner retained De La Vega Plan Design , a local architectural firm, to redraft her house plans. As Home Owner herself admitted, Cl.R. 979, the De La Vega's plans did not contain a six foot set off on the west side 1 ; instead, the plans envisioned Home Owner's house being built abutting the property line. Cl.R. 1084

- 1106

. T he De La Vega plans (with their zero setoff) were submitted to the
Home Owner's Association at Falling Water Subdivision , w h ere Home Owner's lot is located

. Cl.R. 1209. After reviewing the se plans, the Home
Owner's Association (hereinafter referred to as "HOA") approved them.
Cl.R. 1210. Thus, the HOA implicitly approved the zero setback on the west
side of Home Owner's property

. Subsequently , the De La Vega plans were submitted to the City of
McAllen for its approval. These plans were likewise approved. Cl. R. 1118

- 28, 1132

- 36

. In the course of such approval, the City of McAllen expressly
noted the lack of a setoff on the west side of Home Owner's lot

. Cl.R. 1115. After receiving approval from the H OA and the City of McAllen,

1 Instead, such plans called for the set off on the east side.6

Home Owner submitted the De La Vega plans to Rocass Homes , Appellant herein, for construction of the house. Cl.R. 1209. Home Owner and Rocass Homes (hereinafter referred to as "Builder") entered into a contract for the construction of the house, following the De La Vega plans. Builder is not an architect; rather, Builder builds what the architect designs. Builder constructed Home Owner's house according to the De La Vega plans. And since the De La Vega plans call for a zero setback, the wall of Home Owner's house abutted her p roperty line along with west side

. Cl.R. 1209. Subsequently, t he City of McAllen approved the house for occupancy. Cl.R. 1137. Indeed, f rom all external appearances , Home Owner should be proud of her new home. Cl.R. 1066

- 68. After Builder constructe d had constructed the home, Home Owner's neighbor commenced constructing his home. At some point in time, Home Owner realized that her neighbor was building too close for comfort, Cl.R.
1152
- 55 ; accordingly, she sought a temporary injunction against him. Cl.R.

5 - 1 3. Home Owner eventually settled with her neighbor. The settlement provided that in exchange for $18,000, her neighbor would provide a 3.5
foot set off. Cl.R. 1158

- 61

. In compliance with her agreement, Home
Owner non suit ed her claims against him with prejudice . Cl.R. 14. But she7

then sought recoupment of this amount, along with attorney's fees, from
Builder. Cl.R. 19

- 27. Ignoring the disputed nature of the evidence, Home Owner filed a motion for summary judgment, seeking recoupment of the settlement amounts, costs to fix the alleged defects in the home , and attorney's fees.
Cl.R. 28

- 493. To correct defects in her summary judgment evidence and to limit the defects complained of , Home Owner filed a first amended motion for summary j udgment. Cl.R. 510

- 977. She subsequently filed her second
amended motion for summary judgment, focusing solely on recoupment of the settlement funds and attorney's fees. Cl.R. 978

- 1194. Her theory was twofold: 1) the construction contract between Build er and herself required a west setoff; and 2) the "contract" between Builder and the HOA required a west setoff, which she was entitled to enforce as a third party beneficiary. 2 She further sought recovery under Texas' Residential Construction Liability
A ct (commonly referred to as "RCLA"). 3 Cl.R. 982

- 87. To support her three motions, Home Owner killed a mountain of

trees

. But some omissions are immediately noticeable : she never attached a copy of the construction contract between herself and Builder. Cl.R. 28

- 493, 510
- 977, 978

- 1194
. Likewise, she never attached a copy of any

2 This third party beneficiary theory was never asserted in her pleadings. Cl.R. 21

- 22. 3 Tex. Prop. Code §27.001, et seq.8

contract between HOA and Builder; instead, she merely claimed that Builder's acknowledgment that it would comply with HOA's reg ulations, Cl.R. 1080, created her contract. Cl.R. 9 82

- 83. And u nfortunately for
Builder and the trees themselves , the evidence Home Owner presented was overwhelmingly incompetent. For example, Home Owner attached her pleadings as evidence , Cl.R. 1193

- 51, 1162

- 70 , even though a movant's pleadings has cons titute d incompetent summary judgment evidence almost since the inception of Tex. R. Civ. P. 166a

. She presented five business record affidavits, all of which failed to establish the necessary business record predicate. Cl.R. 1077

- 83, 1107

- 37, 1171
- 74, 11 86

- 88, 1189

- 91
. The
three substantive affidavits presented were completely conclusory , and
failed to establish both th e alleged contractual terms, and the actual
elements necessary for the recoupment of a settlement from a defendant

. Cl.R. 1138, 1156

- 57, 1175
- 76

. Given Home Owner's repeated mountains of incompetent evidence, Builder repeatedly objected

. Cl.R. 494

- 97, 1195
- 99. But Builder did not solely rest its summary judgment response on the incompetency of Home
Owner's evidence ; instead, it presente d its own competent summary judgment evidence , disputing Home Owner's version of events. Builder swore that the HOA approved the De La Vega plans, which Home Owner9

admits did not contain the setoff. Builder also disputed Home Owner's
claim that the forma tional documents of the subdivision required the setoff to be on the west side. The subdivision's plat did not contain such a set off. A survey of the property did not contain the set off. And the HOA's guidelines did not require a set off. Cl.R. 1195

- 1215. Thus, the "contract" between HOA and Builder did not require a set off.
When a summary judgment movant fails to establish his burden, the
trial c ourt must deny the motion. Likewise, when the competent summary judgment evidence is conflicting, the trial court must deny the motion. But
the trial court herein clearly jettisoned such leg al dictates into the trash can

. Instead, it rendered summary judgment. And to add i nsult to injury, the
trial court refused to rule on Builder's numerous evidentiary objections. Cl.R. 1231

- 32. In response, Builder filed a motion for new trial. Cl.R. 1233

- 58. Such motion for new trial expressly complained of the trial court's failure to rule
on Builder's evidentiary objection s . Cl.R. 1233. Likewise, it reiterated Home Owner's failure to establish her summary judgment burden, and the completely disputed nature of the summary judgment evidence

. Cl.R. 1236

- 45. However, the trial court refused to Builder's m otion for a hearing,
and thus the motion for new trial was overruled by operation of law. This10

appeal timely followed. Cl.R. 1259

- 67.



### SUMMARY OF ARGUMENT
The first issue in determining any traditional motion for summary judgment is whether the movant has satisfied his initial burden , by presenting sufficient and competent evidence . In the case at bar, Home
Owner clearly failed to satisfy its summary judgment burden , because her evidence was not sworn for purposes of Tex. R. Civ. P. 166a, was hearsay,
failed to established the un disputed term s of th e contract , and failed to establish third party beneficiary status. As a result, the trial court clearly erred in failing to summarily deny Home Owner's motion for summary judgment

. In order to obtain summary judgment for breach of contract, the

movant m ust establish an enforceable contract , along with its actual terms

. Conversely, if the non movant proves a dispute in the contract's terms, summary judgment is improper. In the case at bar, Home Owner failed to establish a contract with any set off requi rement, and failed to establish an
enforceable contract (and third party beneficiary status) between her HOA and Builder. Furthermore, Builder created a fact issue by disputing the terms of the agreement. As a result, summary judgment was improper.
The Texas Residential Construction Liability Act does not create a11

cause of action; instead, it merely created a procedural and substantive overlay over construction claims, and limits the damages recoverable by a homeowner . As a result, because Home Owner ca nnot recover on her breach of contract claim, she cannot recover under her RCLA claim. 

### ARGUMENT [A] Summary Judgment s Generally Improper Motions for summary judgment are strictly construed, both with regard to procedural and substantive law. International Insurance Co. v. Herman G. West, Inc. , 649 S.W.2d 824, 825 (Tex. Ap p. -- Fort Worth 1983, no writ). The purpose of a summary judgment is not to deprive a litigant of his right to a trial by jury, but to eliminate patently unmeritorious claims
and untenable defenses. Gulbekian v. Penn , 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Newberry v. Tarvin , 594 S.W.2d 204, 206 (Tex. Civ. App.

-- Corpus Christi 1980, no writ). “To obtain a summary judgment, a plaintiff

- movant must (1) prevail
on each elemen t of the cause of action, and (2) produce evidence that would be sufficient to support an instructed verdict at trial.” Dob's Tire and Auto Center v. Safeway Ins. Agency , 923 S.W.2d 715, 718 (Tex. App.

-- Houston [1st Dis t.] 1996, writ dism’d w.o.j.). A ma tter supports an instructed verdict only if ordinary minds could not differ as to the conclusion to be drawn12

from the evidence. Nationwide Property and Cas. Ins. Co. v. McFarland , 887 S.W.2d 487, 490 (Tex. App.

-- Dallas 1994, writ denied). This burden has been characterized as "heavy" and "horrendous". Lee v. McCormick , 647 S.W.2d 735, 737 (Tex. App.

-- Beaumont 1983, no writ). If this burden is not satisfied, then the case must be set for trial on the merits. Houston Lighting & Power Co. v . Wheelabrator Coal Services Co. , 788 S.W.2d 933, 935 (Tex. App.

-- Houston [14th Dist.] 1990, no writ). In determining whether this burden has been satisfied , the non movant is entitled to some of the strongest presumptions known in Texas jurisprudence. All doubts as to the existence of a genuine issue of a
material fact are resolved in favor of the non movant. Keaton v. R. Dakin &
Co. , 716 S.W.2d 726, 727 (Tex. App.

-- Corpus Christi 1986, no writ). Accordingly, the evidence will be viewed in the light m ost favorable to the
non movant, Bennack Flying Service, Inc. v. Balboa , 997 S.W.2d 748, 751 (Tex. App.

-- Corpus Christi 1999, writ dism'd w.o.j.), and evidence favoring the movant's position will be ignored ( unless uncontroverted )

. Great
American Reserve Insurance Co. v. San Antonio Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965). All evidence favorable to the non movant must be accepted as true, and any conflicts in the evidence will be disregarded. Farley v. Prudential Insurance Co. , 480 S.W.2d 176, 178 (Tex. 1972); Triton13

Commercial Properties, Ltd. v. Norwest Bank Texas, N.A. , 1 S.W.3d 814, 817 (Tex. App.

-- Corpus Christi 1999, no writ). Every reasonable inference from the evidence must be indulged in favor of the non movant, and all
doubts resolve d in his favor. Montgomery v. Kennedy , 669 S.W.2d 309, 311 (Tex. 1984); Miller v. State and County Mutual Fire Ins. Co. , 988 S.W.2d 326, 330 (Tex. App.

-- C orpus Christi 1999, no writ). If any issue of material facts exists, summary judgment is inappropria te. Moeller v. Fort Worth Capital Corp. , 610 S.W.2d 857, 860 (Tex. Civ. App.

-- Fort Worth 1982, writ ref'd n.r.e.).
The applicable presumptions does not improve for the summary judgment movant as his case traverses to the appellate court. On appeal,
the trial court's summary judgment is reviewed de novo

. Texas Commerce Bank

- Rio Grande Valley, N.A. v. Correa , 28 S.W.3d 723, 726 ( Tex. App.

-- Corpus Christi 2000, pet. denied). A s the Texas Supreme Court has explained , “ When conducting a de no vo review, the reviewing tribunal exercises its own judgment and redetermines each issue of fact and law. In such a review, the reviewing tribunal accords the original tribunal's deci

sion absolutely no deference .” Quick v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1998 ) (emphasis added)

. Consequently, "Under Texas summary judgment procedure, the trial court's rul ing is entitled to no deference."14

Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc. , 278 S.W.3d
470, 476 ( Tex. App.

-- Houston [ 14 th Dist. ] 2009 , no pet.)( F rost , J., con .)

. The question presented before the appellate court is not whether the summary judgment proof present s material fact issues, but whether the evidence presented to the trial court establishes, as a matter of law, all
elements of plaintiff’s cause of action

. Totman v. Control Data Corp. , 707 S.W.2d 739, 742

- 43 (Tex. App.

-- Fort Worth 1986, no writ). In making this determination, this Court only considers the evidence before the trial court at the time of the hearing. E.B. Smi th Co. v. United States Fidelity & Guar.
Co. , 850 S.W.2d 621, 624 (Tex. App.

-- Corpus Christi 1993, writ denied)

. Unlike other final judgments reviewed on appeal, appellate courts do not review the summary judgment evidence in the light most favorable to the judgment of the trial court. Walton v. City of Midland , 24 S.W.3d 853, 855 ( Tex. App.

-- El Paso 2000 , no pet. ). Instead, the evidence must be viewed in the light most favorable to the non

- movant

. Allied Marketing Group,
Inc. v. Paramount Pictures Corp. , 111 S.W.3d 168, 172 ( Tex. App

. -- Eastland 2003, pet. denied ) . Every reasonable inference in favor of the non

- movant must be indulged in , Amaya v. Potter , 94 S.W.3d 856, 861 ( Tex. App.

-- Eastland 2002, pet. denied ) , with all doubts resolved in his fav or . Arellano v. Americanos USA, LLC , 334 S.W.3d 326, 329 (Tex. App.

-- El Paso 2010,15

no pet). The appellate court will accept all e viden ce supporting non movant

as true , and will ignore all contradictory evidence

. Southwestern Elec.
Power Co. v. Grant , 73 S.W.3d 211, 214 (Tex. 2002 ). [ B ] Home Owner Failed to Present Competent Evidence In order to prevail on a traditional motion for summary judgment,
the threshold burden is to present competent summary judgment evidence

. Generally , such burden is established by presenting affidavits, accompanied by any relevant documentation. In this case, Home Owner failed to present any lengthy affidavit, explaining the underlying facts. Instead, Home Owner, in essenc e, only presented documenta ry evidence (and killed a number of trees in the process). Cl.R. 28

- 493, 510
- 977, 978

- 1194. But documentary evidence is not as readily admissible as affidavits are

. And while Home Owner did attempt to render such evidence admissible, such
efforts were l argely failed

. {1} S OME E XHIBITS W ERE N OT S WORN Documents which are unsworn cannot be considered as summary judgment evidence. Tucker v. Atlantic Richfield Co. , 787 S.W.2d 555, 557 (Tex. App.

-- Corpus Christi 1990, no writ); Board of Adjustment of City o f
San Antonio v. Leon , 621 S.W.2d 431, 434 (Tex. Civ. App.

-- San Antonio 1981, no writ); Sturm Jewelry, Inc. v. First Nat. Bank, Franklin , 593 S.W.2d16

813, 814 (Tex. Civ. App.

-- Waco 1980, no writ). Indeed, so fundamental is this prohibition is that it can be raised for the first time on appeal

. Kotzur v. Kelly , 791 S.W.2d 254, 256 (Tex. App.

-- Corpus Christi 1990, no writ). In the case at bar, Home Owner presented the following documents as summary judgment evidence:

 Home Owner's warranty deed (Cl.R. 993

- 9 5 )

 Subdivision Restrictions ( C l.R. 997

- 1057)

 Grupo Calqueza Plans (Cl.R. 1058

- 76)

 De La Vega Building Plans (Cl.R. 1084

- 1106)

 Survey of Property (Cl.R. 1139)

 Docket Sheet (Cl.R. 1179

- 85)

 Demand Letter (Cl.R. 1192

- 93) However, such exhibits were not "sworn to" as required by Tex. R. Civ. P.
166a. Thus, such exhibits were not competent summary judgment evidence, and thus cannot support the trial court's judgment. Tucker v.
Atlantic Richfield Co. , supra ; Kotzur v. Kelly , supra . {2} H EARSAY C

ANNOT S UPPORT S U MMARY J UDGMENT In order to support a motion for summary judgment, evidence must
be admissible at a trial on the merits

. Barrera v. Sanchez , 679 S.W.2d 704, 705 (Tex. App.

-- San Antonio 1984, no writ)

. Consequently, hearsay cannot17

for m the basis of a summary judgment. Horn v. First Bank of Houston , 530 S.W.2d 864, 865 (Tex. Civ. App.

-- Houston [ 14th Dist. ] 1975, no writ); Empire Finance Service, Inc. v. Western Preferred Life Ins. Co. , 461 S.W.2d 489, 490 ( Tex. Civ. App.

-- Waco 1 970, wri t ref ' d ). As the Texas Supreme
Court has remarked, " Hearsay may not be made the basis of a summary judgment, and the trial judge should not be required to speculate as to
whether the affiant could establish the facts stated in his affidavit if he were

tes tifying from the witness stand.” Youngstown Sheet and Tube Co. v.
Penn , 363 S.W.2d 230 , 232 (Tex. 1962)

. In this regard, d ocuments are considered hearsay. See , e.g. , Powell v. Vavro, McDonald, and Associates, L.L.C. , 136 S.W.3d 762, 765 (Tex. App.

-- Dallas 2004, no pet.); Farley v. Farley , 731 S.W.2d 733, 736 (Tex. App.

-- Dallas 1987, no writ); Gerland's Food Fair, Inc. v. Hare , 611 S.W.2d 113, 116 (Tex. Civ. App.

-- Houston [1st Dist.] 1980, writ ref'd n.r.e.). Likewis e, all
statements contained in documents are considered hearsay. Schwartz v.
State , 120 Tex.Cr.R. 252, 46 S.W.2d 985, 987 (1931); Texas Emp. Ins. Ass'n
v. Collins , 321 S.W.2d 119, 122 (Tex. Civ. App.

-- El Paso 1959, writ ref'd n.r.e.). 4 As a result, Home Owner's warranty deed , Cl.R. 993

- 95 , 1140
- 42, the purported subdivision r estrictions , Cl.R. 997
- 1057, Grupo Calqueza

4 Likewise, hearsay within hearsay can be considered only if each portion is independently admissible. Easley v. State , 986 S.W.2d 264, 269 (Tex. App.

-- San Antonio 1998, no p.d.r.).18

building p lans , Cl.R. 1058

- 76 , De La Vega building p lans , Cl.R. 1084

- 1106,

s urvey of Home Owner's p roperty , Cl.R. 1139, mediation agreement, Cl.R. 1158

- 61, her demand l etter , Cl.R. 1192

- 93 , along with the documents attached to the business records affidavits, Cl.R. 1077

- 83, 1107

- 37, 1171
- 74, 1186

- 88, 1189

- 91 5 are hearsay, and therefore cannot support the summa ry judgment. 6 Shamrock Foods Co. v. Munn & Assocs., Ltd. , 392 S.W.3d 839, 846 (Tex. App.

-- Texarkana 2013, no pet.). Additionally, and in complete disregard of the prohibition of using pleadings as summary judgment evidence , 7 Home Owner relied upon her original petition , Cl.R. 1193

- 51, and her second amended petition , Cl. 1162

- 70 , to demonstrate her entitlement to relief. Just like other documents,

p leadings constitute hearsay. Red Henry Painting Co. v. Bank of North
Texas , 521 S.W.2d 339, 343 ( Tex

. Ci v . App.

-- Corpus Christi 1975, no writ ); Cline v. Southwest Wheel & Mfg. Co. , 390 S.W.2d 297, 299 (Tex. Civ. App.

--

5 Why these documents fail to satisfy the business record exception will be explained, infra

. 6 Admittedly, the trial court's judgment does not contain an express ruling on the objections. However, Builder in its motion for new trial excepted to the trial court's failure to rule. Cl.R. 1233. Such exception is sufficient to prese rve error, Magnuson v. Mullen , 65 S.W.3d 815, 828 (Tex. App.

-- Fort Worth 2002, pet. denied); Builder could not do anything more. 7 It is well settled that pleadings do not constitute summary judgment evidence. Laidlaw Waste Systems, Inc. v. City of Wilmer , 904 S.W.2d 656, 660 (Tex. 1995). "[T] he factual allegations in pleadings are not summary judgment evidence, regardless of their level of detail, even if they are verified." Neimes v. Ta , 985 S.W.2d 132, 137 (Tex. App.

-- San Antonio 1998, writ dism'd by agr.). Accordingly, such pleadings will not support a summary judgment. Cedyco Corp. v. Whitehead , 253 S.W.3d 877, 880 (Tex. App.

-- Beaumont 2008, pet. denied ).19

Amarillo 1965, no writ); Wood v. Self , 362 S.W.2d 188, 190 (Tex. Civ. App.

-

- Dallas 1962, no writ)

. Thus, such documents do not support the mo tion for summary judgment. Admittedly, the hearsay rule possesses numerous exceptions. Tex. R. Evid. 803. Nevertheless, the party seeking to admit the hearsay must establish the exception. Pjetrovic v. Home Depot , 411 S.W.3d 639 , 647 (Tex. App.

-- Texarkana 2013 , no pet. )

. For example, Home Owner may understandably argue that her second amended petition , Cl. 1162

- 70 , mediation agreement , Cl.R. 115 8

- 61, and bond check, Cl.R. 1185, were filed
with the county clerk's office, were certified true and co rrect , and t hus, cannot constitute hearsay. However, certification by a clerk does not
absolve a document from hearsay objections

. Ortiz v. State , 999 S.W.2d 600, 607 ( Tex. App.

-- Houston [ 14 th Dist. ] 1999 , no p.d.r. )

. Admittedly, Tex. R. Evid. 803 does provide a hearsay exception for governmental documents. However, the documents encompassed by this exception are documents generated by the government, not documents filed with the government

. Wright v. Lewis , 777 S.W.2d 520, 524 ( Tex. App.

-- Corpus Chris ti 1989, writ denied ). " Rule 803(8), however, is appli

cable only when the exhibit is prepared by public officials or employees under their supervision in the performance of their official duties.20

Documents prepared by private individuals and filed with a governmental agency are not official documents as contemplated by Rule 803(8). " Fibre

board Corp. v. Pool , 813 S.W.2d 658, 676 ( Tex. App.

-- Texarkana 1991 , writ
denied ) , cert. denied , 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993). Accordingly, Ho me Owner's pleadings , the bond check, and the mediation agreement fall outside this exception; none of these documents w ere prepared by th e county clerk. Thus, the clerk's authentication does not render the se documents competent summary judgment evidence. Moore v. Memorial Hermann Hospital System, Inc. , 140 S.W.3d 870, 874 ( Tex. App.

-

- Houston [ 14 th Dist. ] 2004 , no pet. ). 8 As summary judgment evidence, Home Owner submitted numerous documents, attached to business records affidavits from the Falli ng Waters' Home Owner's Association, Cl.R. 1077

- 83, the City of McAllen, Cl.R. 1107

- 37, Armando M. Guerra & Associates, Cl.R. 1171

- 74, David Cazares, Cl.R.
1186

- 88, and Juan Zamora. Cl.R. 1189

- 91
. Admittedly, business records
constitutes a well recognize d exception to the hearsay rule. But Home
Owner repeatedly failed to satisfy th e predicate

. To fall within the ambit of the business records exception , the movant
must establish:

8 Home Owner's contention, i.e. relevance trumps any hearsay objection, Cl.R. 1222, is clearly without merit.21 1) the records were made and kept in the course of a regularly conducted business activity; 2) it was the regular practice of the business activity to make the records; 3) the records were made at or near the time of the event that they record; and 4) the records were made by a person with knowledge who was acting in the regular cour se of business.
Riddle v. Unifund CCR Partners , 298 S.W.3d 780, 783 ( Tex. App.

-- El Paso
2009 , no pet.). If this predicate is not established, then the documents remain hearsay. Pennington v. Brock , 841 S.W.2d 127, 132 ( Tex. App.

-- Hous ton [ 14 th Dist. ] 1992, no writ). Consequently, i f the movant fails to establish this predicate, the trial court errs in considering the evidence.
Good v. Baker , 339 S.W.3d 260, 273 ( Tex. App.

-- Texarkana 2011, pet. denied )

. In the case at bar, none of Home Owner business records affidavits satisfy the required predicate. W hile the affidavits satisfied the first three elements, they always failed to establish the fourth, i.e. the records were made by a person with knowledge who was acting in the regular course of
business. Nowhere in the se affidavit s is this element even addressed

. Cl.R. 1077
- 78, 1107

- 08, 1171

- 72, 1186

- 87, 1189

- 90. Accordingly, the
business records exception was never established , and therefore the trial22

court erred in considering such evidence. Good v. Baker , supra . To shore up some of these evidentiary defects, Home Owner did present the affidavit of Gayle King. Such affidavit states:

My name is Gayle King and I am the president of the Falling Water Home Owners association.

. . . Under this restrictive covenant, any buyer of a lot that is located in Falling Water must submit their construction plans for approval prior to commen

cing construction. As the association president, I am responsible for approving the construction plans prior t o con struction. On June 7, 2010, Rocass Homes L.L.C. submitted plans for approval that complied with the requirements of the deed restrictions that are property recorded with the county. The plans that were submitted by Rocass clearly reserved a 6 foot s etback on the west side of lot 35. Additionall y , R ocass signed a letter that they received and understood the deed restrictions and s et backs.
Cl.R. 1138

. Legal conclusions in summary judgment affidav its are not competent
evidence. Mercer v. Daoran Corp. , 676 S.W.2d 580, 583 (Tex. 1984); Green v. Unauthorized Practice of Law Comm. , 883 S.W.2d 293, 297 (Tex. App.

- - Dallas 1994, no writ). For example, an affiant's conclusions “as to the legal effects of [a] lease” are not competent summary judgment evi dence. Howe v. Kroger Co. , 598 S.W.2d 929, 931 (Tex. Civ. App.

-- Dallas 1980, no writ). In the case at bar, the King affidavit contains similar legal conclusions, i.e.23

the plans submitted satisfied the subdivision restrictions. Cl.R. 1138. 9 As a result, such affidavit cannot sustain the summary judgment. See , Aldridge
v. De Los Santos , 878 S.W.2d 288, 297 ( Tex. App.

-- Corp us Christi, 1994,
writ dism'd w.o.j.)

. The King affidavit also suffers from another defect. As she herself admits, Mrs. King allegedly approved the plans in question. Cl.R. 1138. Accordingly, while she is a not a party to the litigation, she is an interested witness; if she approved plans with the setoff was on the wrong side, fingers can rightly be pointed at her. 10 An a f fidavit from an interested witness merely creates a fact issue, even if uncontradicted

. Greenville Ave. State Bank v. Lang , 421 S.W.2d 748, 751 (Tex. Civ. App.

-- Dallas 1967, no writ). Thus, this affidavit cannot support the summary judgment. 11 Similar problems repeat with Home Owner's attorney's fees affidavit

. This affidavit fails to mention the Arthur Andersen factors, 12 explain which factors apply, why they apply, and the fee resulting from their application

.

9 Home Owner completely failed to substantively respond to such defect. Cl.R. 1220

- 21
. 10 Indeed, she had been sued for her misconduct in this matter. Cl.R. 37

- 41. In response , Home Owner seeks to minimize her interested nature because of timing. Cl.R. 1221. But regardless of when such business records were created, King's credibility is at issue.

11 Admittedly, an exception to this rule exists: the affidavit of an interested witness can support summary judgment if it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Anderson v. Snider , 808 S.W.2d 54, 55 (Tex. 1991). Such exception does not apply, because the De La Vega plans, which she approved, Cl .R. 1209, contradict her statement.
12 Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W.2d 812, 818 (Tex. 1997).24

With regard to appellate attorney 's fees, only a net figure is presented, without any explanation. Cl.R. 1174

- 75. Such conclusory affidavit cannot sustain Home Owner's summary judgment burden. Eberstein v. Hunter , 260 S.W.3d 626, 630 ( Tex. App.

-- Dallas 2008 , no pet.). {3} N O C OMPETENT E VIDENCE = N O S UMMARY J UDGMENT As previously noted, the first step in adjudicating a traditional summary judgment is insuring the motion is supported by competent proof

. If the motion is unsupported by competent evidence, the trial court errs in grantin g the motion. Munoz v. Gulf Oil Co. , 693 S.W.2d 372, 374 (Tex. 1984 ). In the case at bar, Home Owner 's motion was not supported by any competent proof. Her exhibits are not sufficiently sworn. Her
documents evidence are hearsay, and exceptions to the hearsay rule were
not established

. And those affidavits presented are conclusory. As a result, the summary judgment must be reversed. [ C ] Ignoring Defects, Home Owner Presented Insufficient Evidence
In her motion for sum mary judgment, Home Owner sought recovery for breach of contract and for liability under the Texas Residential
Construction Act , Tex. Prop. Code §27.001

. Cl.R. 982

- 87. As clearly
demonstrated supra , Home Owner's motion never reaches first base , because all her substantive evidence is incompetent. But even ignoring the25

incompetency of her evidence , Home Owner still never reaches second base
in the summary judgment stadium , because her incompetent evidence fails
to establish as a matter of law all the elements of her cause o f action and recoverable damages

. 13 {1} N O E VIDENCE OF C ONTRACT W ITH H OME O WNER When a breach of contract plaintiff seeks summary judgment, he must prove the terms of the contract. To satisfy this burden, the plaintiff
must attach to his motion the full contract ; " [n] either the trial court nor [the reviewing] Court is free to speculate as to its contents. " Sorrells v.
Giberson , 780 S.W.2d 936, 937
- 38 ( Tex. App.

-- Austin 1989, writ denied)

. This mandate is not satisfied by attaching a portion of the contract ; instead , the movant must attach the actual full and complete contract to his motion

. Crawford v. Pullman, Inc. , 630 S.W.2d 377, 379

- 80 (Tex. App.

-- Houston [14th Dist.] 1982, no writ). Should the plaintiff fail to attach actual full and complete contract to his motion , he has failed to prove his entitlement to summary judgment. Texas International Airlines v. Wits Air Freight , 608

13 Admittedly, Builder's summary judgment response , Cl.R. 1195

- 1215, does not contain t he specificity of this brief. H owever, a non movant is entitled to attack the sufficiency of a movant's summary judgment evidence for the first time on appeal. As the Texas Supreme Court has explained, " The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establis hes its cause of action or defense

. Summary judgments must stand on their own merits. Accordingly, the nonmovant need not respond to the motion to contend on appeal that the movant's summary judgment proof is insufficient as a matter of law to support sum mary judgment. " M.D. Anderson Hospital and Tumor Institute v. Willrich , 28 S.W.3d 22, 23 ( Tex. 2000 ).26

S.W.2d 828 , 830 (Tex. Civ. App.

-- Dallas 1980, no writ)

. An d so it is in the case at bar. As part of three summary judgment
motions , Home Owner never presented the full and complete contract executed between the parties. 14 Cl.R. 28

- 493, 510
- 977, 978

- 1194. While such contract may have included terms concerning the location of the set off, it may not , and this Court is not permitted to speculate

. Sorrells v.
Giberson , supra . 15 Thus, Home Owner failed to prove the existence of the term which she claims was breached, precluding summary judgment. Id. ; Texas International Airlines v. Wits Air Freight , supra . {2} N O E NFOR C EABLE C ONTRACT W ITH H OME O WNER ' S A SSOCIATION Alternatively , Home Owner claimed that a contract existed between
her HOA and Builder, a contract wh ich she could enforce as a third party beneficiary. Cl.R. 977

- 78. Such contention is premised o n a certification, whereby Builder agreed that it r eviewed the HOA's regulations and agreed
to the ir terms

. Cl.R. 1080. A s previously mentioned, Home Owner failed to present competent evidence in this regard , because the HOA's business
record affidavit f

ailed to establish the required predicate

. Cl.R. 1077

- 7 8

. But even ignoring such evidentiary defects, Home Owner cannot recover on

14 Such omission was pointed out to the trial court. Cl.R. 1201. 15 Thus (and completely unrecognized by Home Owner, Cl.R. 1225) , merely proving that a cont ract exists is insufficient ; the summary judgment movant must prove the term which was breached

.27

this theory.
E very breach of contract action initially requires the existence of a valid, enforceable contract

. Doss v. Homecomings Fin. Network, Inc. , 210 S.W.3d 706, 713 (Tex. App.

-- Corpus Christi 2006, pet. denied); Mandell v.
Hamman Oil & Ref. Co. , 822 S.W.2d 153, 161 (Tex. App.

-- Houston [1st Dist.] 1991, writ denied). Completely unexplained by Home Owner herein , Cl.R. 28

- 493, 510
- 977, 978

- 1194 , a valid contract requires mutuality of obligation. 16 Fundamentally, a contract is an exchange of promises ; each party promise s something in exchange for a recipro cal promise

. Domingo v.
Mitchell , 257 S.W.3d 34, 40 ( Tex. App.

-- Amarillo 2008, pet. denied ). I n other words, for a contract to be enforceable , mutuality of obligation must
exist. In re 24R, Inc. , 324 S.W.3d 564, 567 (Tex. 2010)

. Thus , “[a] contract that does not require a party to furnish consideration, or oblige him to do anything, lacks mutuality, is unilateral, and is unenforceable.” Watson v. Citimortgage, Inc. , 814 F.Supp.2d 726, 732 (E.D. Tex. 2011). As the Texas Supreme Court has explained:

Mutuality of contract consists in the obligation on each party to do, or to permit something to be done, in consideration of t he act or promise of the other. Contracts lacking in mutuality are often termed

16 Mutuality of obligation can be viewed as simply another “way of stating that there must be valid consideration”. 1 W ILLISTON ON C ONTRACTS §7:14 (4th ed. 2014).28 unilateral contracts. Mutuality of obligation is an essential element of every enforceable agreement. Mutu ality is absent when one only of the contracting parties is bound to perform, and the rights of the parties exist at the option of one only. And, conversely, a contract is not unilateral where it contains mutual obligations binding on both parties.

. . . Reduced to its last analysis, the rule is simply that a contract must be based upon a valid consideration, and that a contract in which there is no consideration moving from one party, or no obligation upon him, lacks mutuality, is unilateral, and unenf

orcible.
Texas Farm Bureau Cotton Ass'n v. Stovall , 113 Tex. 273, 253 S.W. 1101,
1104 ( 1923 ). In the case at bar, Builder's promise is easy to discern: compliance
with the HOA's regulations

. Cl.R. 1080. But what exactly did the HOA promise in return ? Would it aid in surveying? Would it assist with the
construction? No; the HOA did not promise anything

. In actuality, the HOA was acting like a governmental zoning commission, merely providing a green light to construction, but providing nothing in re turn. 17 Thus , mutuality of obligation for this alleged contract does not exist, rendering it completely unenforceable. In re 24R, Inc. , supra . But even if a Home Owner presented sufficient evidence of mutuality of obligation , she still failed to presen t sufficient evidence that such alleged

17 The phenome non of home owner's associations acting a s arbitrary private fiefdoms is well documented. See , e.g. , McKenzie, P RIVATOPIA : H OMEOWNER A SSOCIATIONS AND THE R ISE OF R ESIDENTIAL P RIVATE G OVERNMENT (1996); see also , Cl.R. 178 , 232, 258, 1215

.29

contract w as actually enforceable by her . Without discussing the required
evidence , Home Owner merely assumed that she was entitled to enforce the alleged contract as a third party beneficiary. Cl.R. 983. But , as a review of the actual law demonstrates, s uch assumption is not well taken.
A xiomatically, a " third party may enforce a contract it did not sign when the parties to the contract entered the agreement with the clear and express intention of directly be nefitting the third party. " Tawes v. Barnes , 340 S.W.3d 419, 424 (2011) . However, a mere incident al benefit flowing from the contract does not provide a third party standing to enforce it. Instead, the alleged third party beneficiary must demonstrate th at the contracting parties actually i ntended to confer a direct benefit to the third party

. MCI Telecommications Corp. v. Tex. Util. Elec. Co. , 995 S.W.2d 647, 651 (Tex. 1999). In other words, in order to enforce a contract as a third party beneficiary, the plaintiff must establish (1) the contracting parties intended to secure some benefit to that third party; and (2) the contracting parties entered into the contract directly fo r the third party's benefit. Stine
v. Stewart , 80 S.W.3d 586, 589 (Tex. 2002)

. Parties are presumed to contract for themselves, Merit Drilling Co. v.
Honish , 715 S.W.2d 87, 92 ( Tex. App.

-- Corpus Christi 1986, w rit ref'd

n.r.e. ) , and thus court s presume t he alleged third party beneficiary cannot30

enforce the contract

. In re SSP Partners , 241 S.W.3d 162, 170 ( Tex. App.

-- Corpus Christi 2007, pet. denied)

. Thus, t hird party beneficiary status
cannot be creat e d by implication , and any reasonable doubt as to the contracting parties' intent to confer a direct benefit on the third party precludes recovery. Ortega v. City Nat. Bank , 97 S.W.3d 765, 772 ( Tex. App.

-- Corpus Christi 2003, no pet .). Further more , if a contract grants a benefit to a general class of individuals , a member of such class cannot
enforce it as a third party beneficiary. Gonzalez v. City of Mission , 620 S.W.2d 918, 922 (Tex. Civ. App.

-- Corpus Christi 1981, no writ) ; see also , Day Cruises Maritime, L.L.C v. Chr istus Spohn Health System , 267 S.W.3d
42, 57 ( Tex. App.

-- Corpus Christi 2008, pet. denied). Such principles preclude enforcement of the alleged contract by
Home Owner herein . Home Owner failed to present any summary judgment evidence that Builder and HOA intended to directly benefit her individually

. Cl.R. 978

- 1194
. At best, Home Owner claims membership

w ithin the general class of beneficiaries , i.e. residents of Falling Waters
subdivision . Home Owner even admitted this. Cl.R. 983. B ut such membership alone does not create third party beneficiary status . Thus,
Home Owner has failed to establish that she can enforce the alleged

contract

. Day Cruises Maritime, L.L.C v. Christus Spohn Health System ,31

supra ; Gonzalez v. City of Missio n , supra . {3} I NS UFFICIENT E VIDENCE OF D AMAGES P RESENTED The standard measure of damages for a breach of a construction
contract action , when destruction and rebuilding constitutes waste, is the
diminu tion in value. Given the nebulous nature of such damages as applied
herein , Home Owner instead measured her damages as the cost of the settlement she entered with the neighboring landowner , along with
attendant mediation expenses and attorney's fees. Cl.R. 984

- 85. But a s previously noted, Home Owner failed to present competent evidence of the settlement agreement and mediation expenses , Cl.R. 1158

- 61 , and therefore summary judgment is improper . But even if this Court ignores her failure

to properly prove damages , Home Owner still failed to satisfy its burden. From a policy standpoint, i nherent dangers exist when ever a litigant can obtain recoupment of settlement monies. Guillen ex rel. Guillen v.
Potomac Ins. Co. of Illinois , 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1 , 14 ( 2003 )

. A side from the possible cor ro sive effects o n litigation, see , State Farm Fire & Casualty Co. v. Gandy , 925 S.W.2d 696 (Tex. 1996), the settling party may be too loose with his money , knowing that he may be
reimbursed in the future

. Parfait v. Jahncke Service, Inc. , 484 F.2d 296, 301 (5th Cir. 1973) . Consequently , in this situation, the party seeking32

recoupment of a settlement must prove that such settlement was made in good faith and for a reasonable amount

. Associated Ind em. Corp. v. CAT Contracting, Inc. , 964 S.W.2d 276, 284 (Tex. 1998). 18 Satisfaction of this
burden generally requires expert testimony. Amerada Hess Corp. v. Wood Group Prod uction Tech nology , 30 S.W.3d 5, 11 (Tex. App.

-- Houston [14th Dist.] 2000, pet. den ied)

. Admittedly, Home Owner's alleged settlement with her neighbor does

not facially reek of excessiveness. Neverthel e ss, Home Owner failed to present any evidence establishing either her good faith or reasonableness.
Her affidavit does not mention this issue. Cl.R. 1156

- 57. What she should have done is presented the affidavit of her attorney, explaining why the
settlement was reasonable and made in good faith

. Amerada Hess Corp. v. Wood Group Prod uction Tech nology , supra . But this topic i s never broached in his affidavit

. Cl.R. 1175

- 76. Thus, summary judgment is improper. Furthermore, Home Owner failed to prove that her settlement is
recoverable under the RCLA . The statutes specifically provides:

I n an action subject to this chapter the claima nt

18 This burden of proving reasonableness is properly placed upon the plaintiff both out of fairness, since the plaintiff was the one who agreed to the settlement, and out of practicality, since, as between the plaintiff and the defendant, t he plaintiff will have better access to the facts bearing upon the reasonableness of the settlement. Guillen ex rel. Guillen v. Potomac Ins. Co. of Illinois , supra .33 may recover only the following economic damages proximately c aused by a construction defect: (1) the reasonable cost of repairs necessary t o cure any construction defect; (2) the reasonable and necessary cost for the replacement or repair of any dam aged goods in the residence; (3) reasonable and necessary e ngineering and consulting fees; (4) the reasonable expenses of temporary housing reasonably nece ssary during the repair period; (5) the reduction in curren t market value, if any, after the construction defect is repaired if the construction defec t is a structural failure; and (6) reasonable and necessary attorney's fees. Tex. Prop. Code §27.004(g). Omitted from such list are settlements. “[I]t is settl ed that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.”
Perkins v. State , 367 S.W.2d 140, 146 (Tex . 1963). Thus, statutes must be enforced as written, City of San Antonio ex rel. City Public Service Bd. v. Bastrop Cent. Appraisal Dist. , 275 S.W.3d 919, 923 (Tex. App.

-- Austin 2009, pet. dism’d), despite any imperfections contained therein. Stockton

v. Offenbach , 3 36 S.W.3d 610, 618 (Tex. 2011). Similarly, the Legislature’s34

omissions are considered significant; omitted words are presumed to have been purposely excluded by the Legislature. Balawajder v. Texas Dept. of
Criminal Justice Institutional Div

. , 217 S.W.3d 20, 27 n. 6 (Tex. App.

-- Houston [1st Dist.] 2006, pet. denied). Consequently (and despite any advisability), courts are forbidden from expanding the plain language of

statutes. HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board , 235 S.W.3d 627, 658 (Tex. 2007); Treadway v. Holder , 309 S.W.3d 780, 785 (Tex. App.

-- Austin 2010, pet. denied). As a result, Home Owner's failed to prove damages which can be awarded under the RCLA ; settlement is not the cost to repair

. [D ] Builder Defeated Summary Judgment by Questioning Terms Builder believes this Court's analysis can cease at this point because Home Owner failed to satisfied to present competent summary judgment evidence. And even if such defects are ignored, Home Owner' s evidence
fails to establish , as a matter of law , a contract, enforceable by Home
Owner , the breach of which caused her to suffer recoverable damages. But if this Court disagrees, the trial court still erred because the summary judgment evidence is dispu ted concerning the alleged contract's terms. {1} N ON M OVANT D EFEATS M OTION B Y C REAT ING A F ACT I SSUE "In a summary judgment proceeding, it is not the prerogative of the35

court to judge the credibility of, or to determine the weight to be assigned to the testimony given by the affidavits." Birdwell v. Long , 508 S.W.2d 466, 468 (Tex. Civ. App.

-- Amarillo 1974, no writ). "The summary judgment rule is not intended to permit a trial by deposition or affidavit, and a motion for summary judgment should not be resolved by weighing the relative strength of conflicting facts and inferences." Fisher v. Yates , 953 S.W.2d 370, 380 (Tex. App.

-- Texarkana 1997), writ denied per curiam , 9 88 S.W.2d 730 (Tex. 1998); accord , Gaines v. Hamman , 163 Tex. 618, 358 S.W.2d 557, 562 63 (1962); Drew v. Lauder , 647 S.W.2d 749, 751 (Tex. App.

-- Corpus Christi 1983, writ ref' d n.r.e.). Consequently, once a summary judgment movant has satisfied his heavy and horrendous summary judgment burden, Lee v. McCormick , supra , the trial court must nevertheless deny the motion if evidence of probative force exists on the material questions presented, such that reasonable men may differ as to the controlling facts. Portnow v. Berg , 593 S.W.2d 843, 845 (Tex. Civ. App.

-- Houston [1st Dist.] 1980, no writ). In other words, if the non movant has presented sufficient evidence which would prevent a direct verdict against him, the summary judgment must be
denied. Valley Stockyards Co. v. Kinsel , 369 S.W.2d 19, 20 (Tex. 1963). Likewise, the summary judgment must be denied when the affidavits or36

other evidence are contradictory, Tesoro Petroleum Corp. v. Coastal Refining & Marketing, Inc. , 754 S.W.2d 764, 767 (Tex. App.

-- Houston [1st Dist.] 1988, no writ), render the movant's evidence ambiguous, Ellert v.
Lutz , 930 S.W.2d 152, 155 (Tex. App.

-- Dallas 1996, no writ), or present questions concerning credibility. Ballis v. Urban National Bank , 770 S.W.2d 590, 592 (Tex. App.

-- Houston [14th Dist.] 1989, no writ). In making this showing, the non movant may rely on the summary judgment evidence presented by the movant. M.D. Anderson Hospital and Tumor
Institute v. Willrich , supra . Any significant fact issue precludes the entry of a summary judgment. Roberts v. Geo Source Drilling Services, Inc. , 757 S.W.2d 48, 51 (Tex. App.

-- Houston [1st Dist.] 1988, no writ). 19 In this regard, the presentation of direct evidence is not the exclusive method of creating a fact issue; a fact issu e may be created by presenting circumstantial evidence. “The fact that evidence is circumstantial does not render it incompetent nor destroy its probative force. Indeed, evidence of this character may be, and often is, as strong as direct and positive

ev idence.” Brazos River Conservations & Reclamation Dist. v. Harmon , 178 S.W.2d 281, 292 (Tex. Civ. App.

— Eastland 1944, writ ref’d). “Any ultimate fact may be proved by circumstantial evidence”. State v. $11,014.00 , 820

19 Summary judgments are not determined by the weight method, i.e. whomever attaches more paper to his motion win s .37

S.W.2d 783, 785 (Tex. 1991). Such evidence can be utilized to create a fact issue, precluding summary judgment. See , Digby v. Texas Bank , 943 S.W.2d 914, 923 (Tex. App.

-- El Paso 1997, writ denied); Pena v. Neal, Inc. , 901 S.W.2d 663, 671 (Tex. App.

-- San Antonio 1995, writ denied); Motel Enterprises, Inc. v. No bani , 784 S.W.2d 545 (Tex. App.

-- Houston [1st Dist.] 1990, no writ). {2} B UILDER C REATED F ACT I SSUE BY D ISPUTING C ONTRAC T UAL T ERMS As previously noted, in order to prevail on a motion for summary judgment, the plaintiff must prove the existence of the contract. As part of this burden, the movant must also prove the terms of the contract. Deverian v. Aviall of Texas, Inc. , 1991 WL 218799 at 4 (Tex. App.

-- Dallas 1991, no writ); United Parcel Service v. Helen of Troy Corp. , 536 S.W.2d
415 , 417 (Tex. Civ. App.

-- El Paso 1976, no writ). Concomitantly , if the non movant pr esents evidence of a dispute in the terms of the contract, then he
has created a fact issue , precluding summary judgment. See , Ward v.
Crow , 476 S.W.2d 77, 80 (T ex. Civ. App.

-- El Paso 1972, no writ)

. According to Home Owner, the contract was created by acceptance of
her house plans by the HOA. Home Owner claims Grupo Calqueza 's plans were approved (and thus created the terms) . However, Builder directly contradicts this version of the facts. Instead, it presented evidence that the38

De La Vega house plans (with the lack of offset) were approved by the HOA.
Cl.R. 1210. 20 Thus, the terms of the contract were no offset. This cre ates a fact issue, precluding summary judgment. Hall v. Harris County Water Control & Improvement Dist. , 683 S.W.2d 863, 867 (Tex. App.

-- Houston [14th Dist.] 1984, no writ). Furthermore, Builder cast doubt on Home Owner's and her HOA's assumptions. Both Home Owner and her HOA claimed that the setoff on
the west side was established in the formation of the subdivision. But Builder actually examined the relevant documents. First, the plat for the Falling Waters subdivision did not contain a setoff on the w est side. Cl.R.
1205
- 06, 1210. Second, the survey made of Home Owner's property before building commenced did not contain a setoff on the west side. Cl.R. 1204. Third, the HOA's foundational documents did require a setoff on the west
side. Cl. R. 120 9. 21 Thus, if these documents created the contract, then the terms of the contract are disputed. The location of a setoff on the east side (as opposed to the west) is confirmed by circumstantial evidence. On the east side of Home Owner's lot is an alley way. Cl.R. 1204. Given the relatively small size of the

20 Such evidence also renders HOA's affidavit ambiguous; at no point does it ever expressly state which plans were approved by HOA.

21 Such documents were also ambiguous regarding the location of the zero set off. Cl.R. 1215.39

subdivision's lots, Cl.R. 1208, 1211, co mmon sense dictates that any dwelling be away from the alley. The reasonable conclusion (especially in light of the zero setoff), and the one drawn by Builder is that the edifice on Home Owner's lot would contain a party wall. Cl.R. 1210. Finally, Build er has created a question about causati on. Under the HOA's plans, Home Owner, not Builder, was responsible for the submitting acceptable plans. Home Owner presented the De La Vega plans, which did
not contain the setoff

. Builder merely constructs homes; it does not design
them. Builder complied with the plans provided to it. Cl.R. 1211. As a result, Home Owner herself is responsible for any wrong location in the
setoff. [ E ] Recovery Under Texas Residential Liability Act The Texas Legislature initially enacted the Residential Construction Liability Act because the Deceptive Trade Practices Act was being “used as a sword to litigate against builders.” Jackson, Unlicensed to Drill : Proposed
Renovations to the Texas Residential Construction Commi ssion Act , 36 S T
. M ARY ' S L.J. 753, 754 (2005). The statute's intent was to “provide an ‘appropriate balance’ between the residential contractor and owner, with respect to the resolution of construction disputes.” Id. at 761. What the RCLA does not do is create a cause of action or derivative40

liability

. Tex. Prop. Code §27.005. Instead, t he RCLA superimposes
modifi cations on existing causes of action in the construction context

. Gentry v. Squires Constr uction , Inc. , 188 S.W.3d 396, 404 (Tex. App.

-- Dallas 2006 no pet.). It changes the established standard for causation. Tex. Prop. Code § 27.003; Tex. Prop. Code §27.00 6. It limits the damages
which would be otherwise available. Tex. Prop. Code § 27.004(g)

. And it provides applicable def enses for both contractors and subcontractors

. Tex. Prop. Code § 27.003. Consequently, this statute does not provide Home Owner another avenue for relief; instead, she is still required to prove her
breach of contract claim.
But this is where Home Owner' s RCLA claims fail. As clearly demonstrated herein, Home Owner cannot prevail on her breach of
contract claims. She failed to present competent summary judgment
evidence. She failed to prove the existe nce of the disputed term. And the
terms remains dis puted. As a result, the trial court erred in grant ing any
relief under the RCLA

.



### CONCLUSION AND PRAYER The Texas Supreme Court held that summary judgments should not be utilized for clearing dockets: "The summary judgment is to be applied with caution and will not be granted where there is doubt as to the facts.41

Although the prompt disposal of judicial bus iness is greatly desired, it is not the main objective." In Re Price's Estate , 375 S.W.2d 900, 904 (Tex. 1964). In the case at bar, it is obvious that the trial court used summary judgment used as a docket clearing device, because her summary judgment ev idence was incompetent (despite its massacre of thousands of trees) and because Home Owner's evidence was disputed, both directly and circumstantially. But because the trial court's decision is not entitled to any deference, it
must be reversed.
WHEREF ORE, PREMISES CONSIDERED, ROCASS L.L.C. d/b/a
ROCASS HOMES , Appellant in the above styled and numbered cause, respectfully prays that the summary judgment of the trial court be reversed , and for all other and further relief, either at law or in equity, to which Appellant shows itself justly entitled. Respectfully submitted,

__/s/_ Thomas G. Rayfield

_____ Thomas G. Rayfield State Bar No. 16615825 130 0 North Tenth Street, Suite 300 McAllen, Texas 78501

- 4392 Telephone (956) 994

- 1155 Telecopier (956) 994

- 1148 

### CERTIFICATE OF COMPLIANCE I, Thomas G. Rayfield , do hereby certify that the above and fore

-4 2

going was generated using Word 2007 utilizing 14 point and contains 9 1 4 6 words

. BY :__/s/_ Thomas G. Rayfield

_____ Thomas G. Rayfield 

### CERTIFICATE OF SERVICE I, Thomas G. Rayfield , do hereby certify that I have caused to be delivered a true and correct copy of the above and foregoing document to Appellant 's Counsel of Record, Armando G uerra, by regular mail, hand delivery and/or electronic delivery on this the 17th day of October , 2015.
BY

_ /s /_ Thomas G. Rayfield

__ Thomas G. Rayfield