Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen
(Tex.App.- Houston [1st Dist.] Jun. 21, 2007, pet denied)(Hanks)(construction dispute, commerical,
BoC, sworn account suit, failure to prove terms of enforceable contract)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND
CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Bland
01-05-01077-CV Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen
Appeal from County Civil Court at Law No 2 of Harris County (Hon. Gary Michael Block)
TON'S REMODELING, Appellant,
FUNG'S KITCHEN, INC., DOUBLE DUCK, INC., MAN LING FUNG, AND TAT
HOI FUNG, Appellees.
Court of Appeals of Texas, First District, Houston.
Opinion issued June 21, 2007.
Panel consists of Justices NUCHIA, HANKS, and BLAND.
GEORGE C. HANKS, JR., Justice.
Appellant, Ton's Remodeling ("Ton's"), appeals the trial court's grant of a no-evidence
summary judgment in favor of appellees, Fung's Kitchen, Inc. ("FK"), Double Duck, Inc.
("DD"), Man Ling Fung ("Man"), and Tat Hoi Fung ("Tat"). In two issues, Ton's contends that
(1) the summary judgment in favor of Tat was improper because Ton's presented some
evidence as to each element of its claims against Tat and (2) the summary judgment in favor
of FK, DD, and Man is void because they were not subject to the court's jurisdiction at the
time summary judgment was granted. We reverse in part and affirm in part.
A dispute over the alleged performance of construction services forms the apparent basis of
this suit. Ton's initial pleadings alleged that:
[Ton's] rendered valuable services and furnished materials for [FK, DD, Man, and Tat] . . .
which services and materials were accepted by [them] under such circumstances as
reasonably notified [them] that [Ton's ] in doing such was expecting to be paid . . . . Although
[they] agreed to pay [Ton's], despite notice and demand, [they] have refused to pay . . . .
A little more than two months after filing their answer, DD, Man, and Tat filed a joint no-
evidence summary judgment motion, asserting that there was no evidence to support any of
Ton's claims. FK filed an identical motion for no-evidence summary judgment. Before the trial
court ruled on the motions for summary judgment, however, Ton's filed a motion for partial
dismissal, requesting that the "claims, causes of action, and requests for damages" against
FK, DD, and Man be dismissed without prejudice. On the same day, Ton's filed amended
pleadings, alleging causes of action for breach of contract and sworn account against Tat
only. In addition to filing a motion for partial dismissal and amended pleadings, Ton's
responded to the summary judgment motions on file with the trial court. To its response, Ton's
attached the affidavit of Kien Man Ton, owner of Ton's. Kien Man Ton's affidavit testimony
stated, in relevant part, that:
Tat agreed to allow Ton's to provide construction services for Tat and further agreed that
Ton's would be paid as the charges for the construction services were invoiced. Ton's agreed
to provide construction services for Tat and did provide construction services for Tat as
requested by Tat. A true and correct copy of Tat's account with Ton's is attached . . . . The
total amount of the charges for the construction services Ton's provided for Tat, at Tat's
request, is $125,239. These charges are usual, customary, and reasonable for the
construction services Ton's provided for Tat. Despite having been invoiced for $125,239, only
$110,000 in payments has been made. Tat owes Ton's $15,239.00, which is just, true, and
due; and all just and lawful offsets, payments, and credits, have been allowed.
As stated in the affidavit, a document titled "Ton's Remodeling account with Tat Hoi Fung"
was attached. The document, in its entirety, reads
INVOICE SUMMARY: Date of Invoices Amount March 25, 2002 $64,500 August 16, 2002
$44,307 September 10, 2002 $11,500 December 9, 2002 $ 4,932 Total: $125,239
PAYMENT SUMMARY: Amount Received: July 26, 2002 $10,000 August 23, 2002 $20,000
September 18, 2002 $35,000 November 1, 2002 $30,000 December 23, 2002 $15,000
Total Received: $110,000 Remaining Balance: $ 15,239
Ton's also attached the first page of a lease agreement in support of its response to the
summary judgment motions. The lease agreement showed that Tat leased space from DD in
order to operate a restaurant, Fung's Kitchen. Other evidence in the trial court's record, filed
pursuant to a notice of intent to offer the evidence at trial, consisted of the corporate
paperwork of DD and FK, including: an agreement indicating FK's understanding that DD
wished to borrow money against the building FK leased from DD; two borrowing affidavits,
one signed by Tat as President of DD and one signed by Tat as President of FK; DD's
Articles of Incorporation, listing Tat and Man as its initial directors; DD's Certificate of
Incorporation and Franchise Tax Certification; FK's Articles of Incorporation, listing Tat as its
initial director; and FK's Certificate of Incorporation and Franchise Tax Certification.
Ten days after Ton's filed its motion for partial dismissal, response to the summary judgment,
and notice of intent to offer the above-listed evidence at trial, the trial court ordered that "the
claims, causes of action, and requests for damages, of [Ton's] against [FK, DD, and Man]"
be dismissed without prejudice. Seven days following the order of dismissal, the trial court
signed one summary judgment ordering that Ton's take nothing on its claims against FK and
one summary judgment ordering the same as to Ton's claims against DD, Man, and Tat.
Ton's appeals these grants of summary judgment.
No-Evidence Summary Judgment
In its first issue, Ton's argues that the summary judgment in favor of Tat was improper
because there was more than a scintilla of evidence that (1) Tat was liable on a sworn
account and (2) Tat breached his contract with Ton's.
Standard of Review
A no-evidence summary judgment is essentially a directed verdict granted before trial, to
which we apply a legal-sufficiency standard of review.King Ranch, Inc. v. Chapman, 118 S.W.
3d 742, 750-51 (Tex. 2003); Crowder v. Scheirman, 186 S.W.3d 116, 118 (Tex. App.-
Houston [1st Dist.] 2005, no pet.). In general, a party seeking a no-evidence summary
judgment must assert that no evidence exists as to one or more of the essential elements of
the non-movant's claims on which it would have the burden of proof at trial. Crowder, 186 S.W.
3d at 118. Once the movant specifies the elements on which there is no evidence, the burden
shifts to the non-movant to raise a fact issue on the challenged elements. Tex. R. Civ. P. 166a
(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence
of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a
vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite
of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in the light most
favorable to the non-movant, disregarding all contrary evidence and inferences. Id. (citing
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
A no-evidence summary judgment is improperly granted if the respondent brings forth more
than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch,
118 S.W.3d at 751. When the evidence supporting a finding rises to a level that would enable
reasonable, fair-minded persons to differ in their conclusions, more than a scintilla of
evidence exists. See Havner, 953 S.W.2d at 711.
In order to survive summary judgment on its sworn account claim, Ton's was required to raise
a fact issue as to each of the claim's elements of proof. See Tex. R. Civ. P. 166a(i).
The elements of a sworn account claim are: (1) the sale and delivery of merchandise
or performance of services, (2) the amount of the account is just, that is, the prices
charged are usual, customary, or reasonable, and (3) outstanding amounts remain
unpaid. Tex. R. Civ. P. 185; Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex.
App.-Houston [1st Dist.] 1997, no writ).
Under Rule 185 of the Texas Rules of Civil Procedure, a plaintiff's petition on a sworn account
must contain a systematic, itemized statement of the goods or services sold, must reveal
offsets made to the account, and must be supported by an affidavit stating that the claim is,
within the affiant's knowledge, "just and true." Tex. R. Civ. P. 185; Andrews v. East Texas
Med. Ctr.—Athens, 885 S.W.2d 264, 267 (Tex. App.-Tyler 1994, no writ); see also Anderson
v. Hake, 300 S.W.2d 663, 664 (Tex. Civ. App.-Dallas 1957, no writ) (holding that statement of
account attached to petition was not sufficiently itemized for purposes of sworn account rule
where statement only showed date of purchase and amount thereof).
Here, Kien Man Ton alleged by affidavit that (1) Ton's provided construction services for Tat,
(2) $125,239 in "usual, customary, and reasonable" fees were invoiced for those services, (3)
despite requests for payment, a balance of $15,239 was still owed, (4) the balance owed was
"just, true, and due," and (5) all "lawful offsets, payments, and credits" had been allowed.
Absent from the affidavit, however, is any specific or systematic statement of exactly what
services were provided or what offsets were allowed. The attached invoice does not provide
any further, more detailed information. That is, the charges are not itemized, nor are any
specifics or details as to to how the figures were arrived at indicated. Rather, the invoice
contains blanket statements such as the statement that, on March 25, 2002, $64,500 in
charges were invoiced. A statement which shows only a date of service and amount charged
is not sufficient for purposes of rule 185. See Anderson, 300 S.W.2d at 664. As such, the
evidence Ton's presented in support of its sworn account claim failed to rise to a level that
would enable reasonable, fair-minded persons to differ in their conclusions, and less than a
scintilla of evidence exists. See Havner, 953 S.W.2d at 711. Because less than a scintilla of
evidence was presented, no fact issue was raised and summary judgment on the sworn
account claim was proper.
Breach of Contract
The elements of Ton's breach of contract claim are: (1) the existence of a valid contract, (2)
performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages
sustained by the plaintiff as a result of the breach. Wright, 950 S.W.2d at 412. A valid contract
exists where there is an offer, acceptance in strict compliance with the terms of the offer, a
meeting of the minds, consent by each party to the terms, and execution and delivery of the
contract with the intent that it be mutual and binding. Beverick v. Koch Power, Inc., 186 S.W.
3d 145, 150 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). To be legally binding, a
contract must be sufficiently definite in its terms. T.O. Stanley Boot Co. v. Bank of El Paso,
847 S.W.2d 218, 221 (Tex. 1992). If an agreement is so indefinite that a court cannot
determine the legal obligations and liabilities of the parties, it is not an enforceable
agreement. See id.
In his affidavit, Kien Man Ton alleged that "Tat agreed to allow Ton's to provide construction
services for Tat and further agreed that Ton's would be paid as the charges for the
construction services were invoiced. Ton's agreed to provide construction services for Tat
and did provide construction services for Tat as requested by Tat." The allegations in the
affidavit fail to make clear the legal obligations and liabilities of the parties. For example, the
affidavit lacks any indication of the duration of the agreement to provide services, the type of
construction services to be provided, the terms under which the services were to be provided,
the fees to be charged, or any other information that would allow us to discern the legal
obligations and liabilities of Ton's and Tat. See T.O. Stanley Boot Co., 847 S.W.2d at 221.
Because the legal obligations and liabilities of the parties cannot be ascertained from the
summary judgment evidence in the record, Ton's has failed to raise a fact issue as to the
existence of a definite and enforceable agreement to provide construction services to Tat.
See id. In the absence of any evidence of an enforceable agreement, the trial did not err in
granting summary judgment on Ton's breach of contract claim.
Because summary judgment was proper as to both Ton's sworn account claim and breach of
contract claim, we overrule Ton's first issue.
In its second issue, Ton's argues that the summary judgment in favor of FK, DD, and Man was
void because they were not subject to the trial court's jurisdiction at the time the summary
judgment was granted. Specifically, Ton's argues that, because FK, DD, and Man had been
dismissed without prejudice prior to the signing of the summary judgment, the trial court was
without jurisdiction to grant them affirmative relief. Tat concedes that the trial court lacked
jurisdiction at the time it granted summary judgment in favor of FK, DD, and Man.
Standard of Review
Whether a court has subject matter jurisdiction is a question of law. Burgess v. Gallery Model
Homes, Inc., 101 S.W.3d 550, 552 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). As
such, we apply a de novo standard of review. Id.
"At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence,
the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes."
Tex. R. Civ. P. 162. To take a non-suit, a party may file a written motion to dismiss. Cook v.
Nacogdoches Anesthesia Group, L.L.P., 167 S.W.3d 476, 482 (Tex. App.-Tyler 2005, no
pet.). Subject to certain conditions, which are not present in this cause, a plaintiff's right to
take a non-suit is unqualified and absolute. See id; see also BHP Petroleum Co., Inc. v.
Millard, 800 S.W.2d 838, 840-41 (Tex. 1990). A non-suit is effective when filed—that is, it
extinguishes a case or controversy at the moment the motion is filed. See Univ. of Tex.
Medical Branch at Galveston v. Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). A judgment is
void where it is apparent that the court rendering the judgment had no jurisdiction over the
parties or no jurisdiction of the subject matter. See Mapco, Inc. v. Forrest, 795 S.W.2d 700,
703 (Tex. 1990).
As previously stated, Ton's and Tat agree that the trial court was without jurisdiction to render
summary judgment in favor of FK, DD, and Man. On August 11th, 2005, the trial court ordered
that "the claims, causes of action, and requests for damages" against FK, DD, and Man be
dismissed without prejudice, pursuant to Ton's motion for partial dismissal. The immediate
effect of the order dismissing FK, DD, and Man from the lawsuit was to extinguish the case or
controversy between Ton's and FK, DD, and Man. See Blackmon, 195 S.W.3d at 100.
Because the trial court did not sign the summary judgments in favor of FK, DD, and Man until
August 18, 2005, seven days after they had been dismissed without prejudice, the trial court
was without jurisdiction over the case or controversy at the time it rendered judgment. As
such, the summary judgment is void for want of jurisdiction. Forrest, 795 S.W.2d at 703.
Accordingly, we sustain Ton's second issue.
We reverse the portion of the judgment in favor of FK, DD, and Man because, at the time the
judgment was rendered, the case or controversy between the parties had been extinguished
and, thus, the trial court was without jurisdiction to grant them affirmative relief. We remand
the cause against FK, DD, and Man, for orders consistent with this opinion and in
accordance with the trial court's order of August 11, 2005, dismissing "the claims, causes of
action, and requests for damages" against them without prejudice.
We affirm the portion of the judgment in favor of Tat because Ton's failed to raise an issue of
fact as to each of the elements of his claims against Tat.
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