In the Matter of R.D.B.--Appeal from County Court at Law No 3 of Montgomery County

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State: Texas

Court: Texas Northern District Court

Docket No: 09-01-00178-CV

Case Date: 12/05/2002

Plaintiff: Elliott Elijah Pruitt

Defendant: The State of Texas--Appeal from County Court at Law of Nacogdoches County

Preview:Andrew Davidoff v. GX Technology Corporation--
Appeal from 270th District Court of Harris County
MAJORITY | MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-03-00147-CV
Andrew Davidoff,
Appellant
v.
GX Technology Corporation,
Appellee
From the 270th District Court
Harris County, Texas
Trial Court No. 01-58745
Memorandum Opinion
Andrew Davidoff entered into an employment contract with GX Technology (GXT), agreeing to render services for
them in Jakarta, Indonesia. Before the end of the contract, GXT terminated the agreement. Thereupon, Davidoff filed
an action against GXT for breach of the contract. GXT filed a no-evidence motion for summary judgment, and the
court granted the motion. Davidoff appeals. We reverse.
No-Evidence Summary Judgment Motion
Davidoff argues in his sole issue that the trial court erred in granting GXT s no evidence motion for summary judgment
because Davidoff presented sufficient evidence on each element of the claim.
We review the decision to grant or deny a summary judgment motion de novo. See Rosas v. Hatz, 147 S.W.3d 560,
563-64 (Tex. App. Waco 2004, no pet.); Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App. Waco 2000,
pet. denied). We apply the same standard in reviewing the grant or denial of a no-evidence summary judgment motion
as we would in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003);
Rosas, 147 S.W.3d at 564.
We review the summary judgment evidence in the light most favorable to the non-movant, disregarding all contrary
evidence and inferences. King Ranch, 118 S.W.3d at 751;Rosas, 147 S.W.3d at 564. A no-evidence motion will be
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defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element
challenged by the movant. King Ranch, 118 S.W.3d at 751; Rosas, 147 S.W.3d at 564. More than a scintilla of
evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, 118
S.W.3d at 751; Rosas, 147 S.W.3d at 564.
The elements for a breach of contract claim are (1) a valid, enforceable contract; (2) plaintiff s performance; (3)
defendant s breach; and (4) plaintiff s damage as a result of the defendant s breach. Runge v. Raytheon E-Systems,
Inc., 57 S.W.3d 562, 565 (Tex. App. Waco 2001, no pet.). GXT s motion argued that there was no evidence for
elements (2)-(4).
Plaintiff s Performance
GXT claims that Davidoff s affidavit in response to GXT s no evidence emotion is conclusory and no evidence of
performance. Davidoff argues that GXT s objections are not preserved for our review. Citing our decision in Allen ex
rel. B.A v. Albin, Davidoff argues that because the trial court did not specifically rule on GXT s objections to Davidoff
s evidence, we cannot assume that the objections were implicitly sustained merely because the summary judgment was
granted. See 97 S.W.3d 655, 663 (Tex. App. Waco 2002, no pet.).
However, a conclusory objection is an objection of substance. Harris County v. Smyly, 130 S.W.3d 330, 336 (Tex.
App. Houston [14th Dist.] 2004); City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex. App. Dallas
1994), aff'd, 904 S.W.2d 656, 660-61 (Tex. 1995). Substantive objections, as opposed to form objections, do not
require a written ruling, and the objection may be raised for the first time on appeal. Choctaw Props., L.L.C. v. Aledo
I.S.D., 127 S.W.3d 235, 241 (Tex. App. Waco 2003, no pet.); Dailey v. Albertson's, Inc., 83 S.W.3d 222, 225 (Tex.
App. El Paso 2002, no pet.); see also Albin, 97 S.W.3d at 663 (holding that a ruling from the trial court is required to
preserve defects of form. ).
"A conclusory statement is one that does not provide the underlying facts to support the conclusion." Choctaw Props.,
L.L.C., 127 S.W.3d at 242. In his affidavit, Davidoff states, My obligations under the Consulting Agreement were
specifically enumerated in Paragraph 3 of the attached agreement and incorporated herein by reference. In addition to
those responsibilities, I was in charge of the operations of [GXT s] Jakarta office. I discharged all of these
responsibilities in a competent and diligent manner. GXT argues that this is a bare conclusion of performance. Also, it
argues that because Davidoff was required under the contract to maintain written records of his compliance, the bare
conclusion that he performed is not the best Davidoff could muster. However, to defeat a no-evidence motion, the non-
movant is not required to marshal its proof. Smith v. Mosbacker, 94 S.W.3d 292, 294 (Tex. App. Corpus Christi 2002,
no pet.).
Davidoff incorporates his contract by reference and states that he diligently performed the duties listed there. He also
lists specific work that was performed by the Jakarta office, of which he had previously stated he was in charge. While
these paragraphs were used to support his claim that GXT breached the employment contract, they also support the
contention that he performed under the contract. An affidavit containing conclusory and subjective determinations of
fact may constitute competent summary judgment evidence if the remaining statements contain sufficient factual
information. . . . General Prod. Co. v. Black Coral Inv., 715 S.W.2d 121, 123 (Tex. App. Houston [14th Dist.] 1986,
writ ref d n.r.e.). Therefore, Davidoff s evidence of performance is not conclusory. Further, given the above he
presented more than a scintilla of evidence that he performed under the contract. See Rosas, 147 S.W.3d at 564.
Breach of the Contract
Next, GXT argues that Davidoff presented no evidence that GXT breached the employment contract. The contract
provided that either party could terminate the agreement in the event that the funds in the Jakarta accounts were
insufficient to pay expenses. Davidoff attached to his affidavit an email sent to Davidoff from GXT informing him of
the termination of the contract. The email stated that GXT would not be providing services in Indonesia because of
greater competitive pressures. The email also directed Davidoff to pay his outstanding salary with current Jakarta
funds. Davidoff argues that because the email does not list insufficient funds as the reason for terminating the contract,
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it is some evidence that GXT breached the contract.
Further, in response to GXT s argument that it terminated the contract legally because of insufficient funds, Davidoff
argues that the Houston office did not credit the Jakarta office with certain profits so that it would seem that the Jakarta
office had insufficient funds. In his affidavit, Davidoff listed work performed by the Jakarta office the profits of which
were credited to the Houston office and Jakarta funds that were used to pay certain Houston expenses, but were not
later reimbursed. Davidoff argued that had the Jakarta office been credited with this work, there would have been
sufficient funds.
The email and the bookkeeping problems create more than a surmise or suspicion that GXT breached the employment
contract with Davidoff, and thus constitute more than a scintilla of evidence. See Rosas, 147 S.W.3d at 564.
Damages
Finally, GXT argues that there is no evidence that Davidoff suffered damages from the alleged breach. In the
termination email attached to Davidoff s affidavit, GXT directs Davidoff to pay his outstanding salary and
commissions from the current funds and the remaining invoice payments. In his affidavit, Davidoff states that he did
not have control of the accounting or Jakarta office funds and that he was never paid in this fashion.
GXT claims that the statement never paid in this fashion is conclusory. However, Davidoff has personal knowledge of
whether or not he was paid according to GXT s directions, and was restating a fact. See Hou-Tex., Inc. v. Landmark
Graphic, 26 S.W.3d 103, 112 (Tex. App. Houston [14th Dist.] 2000, no pet.). Further, Davidoff s affidavit references
the termination email and the original consulting agreement stating the terms of his compensation. This provides more
than a scintilla of evidence that Davidoff suffered damages due to GXT s alleged breach. See Rosas, 147 S.W.3d at
564.
Because Davidoff brought forth some evidence to prove each element of his breach of contract claim, the trial court
erred in sustaining GXT s no-evidence summary judgment motion. Accordingly, we sustain Davidoff s only issue.
Conclusion
We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed August 17, 2005
[CV06]
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