Texas Judiciary Online - HTML Opinion

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Opinion issued August 2,=20 2007

=20

In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-06-00762-CV

JESUS = IBARRA,=20 Appellant

PEGGY = NICHOLES, LESA=20 NICHOLES, AND

SALON = N.V. AND DAY=20 SPA, INC., Appellees

On = Appeal from the=20 113th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2004-15621

MEMORANDUM=20 OPINION

This is a = suit between=20 a commercial tenant of a retail center and a subcontractor hired = to make=20 improvements to the leased space. Appellees, Peggy Nicholes, Lesa=20 Nicholes, and Salon N.V. and Day Spa, Inc. (collectively, the = "Salon"),=20 sued Jesus Ibarra for negligence, alleging defective construction = of=20 cabinetry. Ibarra counterclaimed under theories of breach of = contract and,=20 alternatively, quantum meruit, seeking payment for materials and = services=20 rendered to the Salon. In addition, Ibarra filed mechanic's and=20 materialman's liens against the entire retail center property = encompassing=20 the Salon. The Salon filed a motion for summary judgment^{=20
(1)} on Ibarra's counterclaims and to set aside Ibarra's = liens,=20 which the trial court granted.

In what we construe as five = issues,=20 Ibarra contends that the trial court erred by granting summary = judgment in=20 favor of the Salon because (1) the Salon lacked standing to = challenge=20 Ibarra's liens; (2) the Salon's motion to vacate Ibarra's liens = was not=20 properly verified; (3) the trial court lacked authority to = summarily=20 dispose of the liens on the basis presented; (4) Ibarra's response = was=20 improperly deemed untimely; and (5) genuine issues of material = fact=20 precluded summary judgment.

We affirm.

Summary = of Facts and=20 Procedural History

In May 2003, the Salon leased = space in=20 the Royal Oaks Plaza commercial center on Westheimer Road in = Houston (the=20 "Leased Premises"). The Salon hired a general contractor, John = Jamar, to=20 construct improvements to the Leased Premises. Pursuant to an oral = agreement, the Salon promised to pay $385,000 to Jamar, and, in = exchange,=20 Jamar promised to purchase all materials; hire, supervise, and pay = all=20 subcontractors; and provide an accounting for all sums expended. = The=20 parties agreed that Jamar would complete the improvements by = September 1,=20 2003.

Construction began immediately, = and Jamar=20 hired Ibarra to construct and install custom cabinets at the = Leased=20 Premises. From May to October of 2003, according to the Salon, = there were=20 ongoing issues with Jamar and Ibarra regarding delays and defects = in the=20 construction.

On October 14, 2003, Ibarra = invoiced=20 Jamar for $31,721 for the cabinetry. Although the Salon had paid = Jamar=20 sufficient funds to pay Ibarra, Jamar failed to pay Ibarra. = Subsequently,=20 Ibarra met with the Salon and asserted that he was still owed = "around=20 $30,000." By late October, after the Salon had advanced Jamar = $383,000 of=20 the $385,000 agreed price, Jamar abandoned the job, leaving it = unfinished.=20

On October 30, 2003, and again = on=20 February 13, 2004, Ibarra filed mechanic's and materialman's liens = in the=20 real property records of Harris County in which he claimed a lien = of=20 $54,400 against the entire fee simple interest in the Royal Oaks = Plaza=20 property owned by the landlord, Royal Oaks Plaza, Ltd. (the=20 "Landlord").

On April 19, 2004, the Salon = sued Jamar=20 and Ibarra.^{=20
(2)} As to Jamar, the Salon claimed breach of contract, = fraud,=20 negligence, and conversion. The Salon alleged that Jamar had, = inter alia,=20 failed to complete "several fundamental aspects of the = construction,=20 including cabinet installation." In addition, the Salon alleged = that Jamar=20 had failed to pay over $50,000 owed for supplies and work = performed by=20 subcontractors and that, consequently, the suppliers and = subcontractors=20 had filed liens against the Leased Premises.

As to Ibarra, the Salon claimed = negligence, alleging that Ibarra had incorrectly stained the = cabinets,=20 installed glass shelving in a manner that caused the glass to fall = and=20 shatter, failed to install work in compliance with codes, and = failed to=20 deliver materials for which he had been paid. In addition, the = Salon=20 sought to have Ibarra's liens vacated on the basis that the lien = affidavit=20 was overbroad and improperly placed a cloud on the title of the = entire=20 property rather than being restricted to the Salon's leasehold=20 interest.

Ibarra counterclaimed against = the Salon,=20 seeking payment for the cabinetry under theories of breach of = contract=20 and, alternatively, quantum meruit, and seeking enforcement of his = liens.=20 Ibarra cross-claimed against Jamar for breach of contract, quantum = meruit,=20 and fraud.

In June 2004, the Salon moved = for a=20 partial summary judgment seeking to dismiss Ibarra's counterclaims = and to=20 vacate Ibarra's liens. Specifically, as to Ibarra's breach of = contract=20 claim, the Salon contended that no contract existed between the = Salon and=20 Ibarra. As to Ibarra's alternative quantum meruit claim, the Salon = contended that it was Jamar's sole obligation to pay Ibarra. The = Salon=20 further asserted that Ibarra had failed to perfect his liens. To = support=20 its motion, the Salon attached the affidavit of Peggy Nicholes, = the=20 Salon's lease with Royal Oaks, Ibarra's invoice to Jamar, and = Ibarra's=20 original and revised lien affidavits.

On July 6, 2004, Ibarra = responded to the=20 Salon's motion for summary judgment, contending that the Salon's = motion=20 was procedurally defective and that genuine issues of material = fact=20 precluded summary judgment. Ibarra contended that he received = direct=20 assurances from Peggy and Lesa Nicholes that they would pay him,=20 notwithstanding that they had already paid Jamar, and Ibarra = asserted that=20 his lien was proper. As evidentiary support, Ibarra attached his=20 affidavit, a copy of the lease, and an accounting from = Jamar.

On July 19, 2004, after a = hearing and=20 without stating its basis, the trial court granted summary = judgment in=20 favor of the Salon, dismissing Ibarra's counterclaims with = prejudice and=20 vacating Ibarra's liens on Royal Oaks Plaza.

On February 17, 2005, the trial = court=20 granted the Salon's motion to sever its claims against Jamar into = a=20 separate suit.^{=20
(3)} On March 11, 2005, Ibarra moved for reconsideration = of the=20 summary judgment and severance order and, in the alternative, for = a new=20 trial. Specifically, Ibarra speculated that the trial court must = have=20 improperly disregarded Ibarra's summary judgment response as = untimely. In=20 addition, Ibarra contended that the severance order improperly = failed to=20 address Ibarra's cross-claims against Jamar.

On March 24, 2006, the Salon = non-suited=20 its claims against Ibarra. The claims by the Salon and Ibarra = against=20 Jamar were re-consolidated. Trial in these matters was held April = 18,=20 2006, at which Jamar failed to appear. The trial court rendered a = default=20 judgment against Jamar in favor of the Salon for $216,817 plus = attorney's=20 fees of $44,000. As to Ibarra's cross-claims against Jamar, the = trial=20 court rendered a default judgment against Jamar for $64,000 plus=20 attorney's fees of $11,000. The trial court's order also recites = that it=20 had previously granted summary judgment in favor of the Salon on = Ibarra's=20 counterclaims and that Ibarra's motion for reconsideration was = denied. In=20 addition, the trial court's order states that all remaining claims = had=20 been resolved and that the order constituted a final judgment.=20 Summary Judgment

A. Standard of=20 Review

We review a trial court's grant = of a=20 traditional summary judgment de novo. Provident Life & = Accident=20 Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A summary = judgment under Rule of Civil Procedure 166a(c) is properly granted = only=20 when a movant establishes that there are no genuine issues of = material=20 fact and that he is entitled to judgment as a matter of law. = Tex. R. = Civ. P.=20 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. = Corp.,=20 988 S.W.2d 746, 748 (Tex. 1999). A=20 plaintiff moving for summary judgment must prove that he is = entitled to=20 summary judgment as a matter of law on each element of his cause = of=20 action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. = 1986);=20 Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex. = App.--Houston [1st=20 Dist.] 1997, no writ). A defendant moving for summary judgment = must either=20 (1) disprove at least one element of the plaintiff's cause of = action or=20 (2) plead and conclusively establish each essential element of an=20 affirmative defense to rebut plaintiff's cause. Cathey = v.=20 Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a disputed = material=20 fact precluding summary judgment, evidence favorable to the = non-movant=20 will be taken as true, every reasonable inference must be indulged = in=20 favor of the non-movant, and any doubts will be resolved in its = favor.=20 Knott, 128 S.W.3d at 215. The movant must conclusively = establish=20 its right to judgment as a matter of law. See MMP, = Ltd.,=20 710 SW.2d at 60. A matter is conclusively established if = reasonable=20 people could not differ as to the conclusion to be drawn from the=20 evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 = (Tex.=20 2005).

When, as here, the = trial court's=20 summary judgment order does not state the basis for the trial = court's=20 decision, we must uphold the order if any of the theories advanced = is=20 meritorious. Knott, 128 S.W.3d at 216.

B. = Standing

In what we construe as his = first issue,=20 Ibarra contends that the trial court erred by granting summary = judgment in=20 favor of the Salon because the Salon lacked standing to challenge = Ibarra's=20 liens. Ibarra filed the liens at issue on the Landlord's entire = fee estate=20 (Royal Oaks Plaza) to secure the debt allegedly owed on = improvements that=20 Ibarra made to the Salon's leasehold space in Royal Oaks Plaza. = Ibarra=20 contends that the Salon, as a lessee, lacked standing to file an=20 application under Texas Property Code section 53.160 for a summary = disposition of the liens on the fee estate of the Landlord. = See=20 Tex. Prop. Code Ann. =A7 53.160 (Vernon 2007). = The Salon=20 contends that it is a proper party to invoke the remedy provided = by=20 section 53.160 by its status as a party to this suit and that it = has=20 standing to bring this suit because it is personally aggrieved by = Ibarra's=20 liens. See id.

Texas Property Code section = 53.160,=20 "Summary Motion to Remove Invalid or Unenforceable Lien," provides = that,=20 in a suit brought to declare a lien invalid, a party objecting to = the=20 validity of the lien may file a verified motion to remove the = lien, as=20 follows:

(a) In a suit brought to = foreclose a lien=20 or to declare a claim or lien invalid or unenforceable, a party = objecting=20 to the validity or enforceability of the claim or lien may file a = motion=20 to remove the claim or lien. The motion must be verified and state = the=20 legal and factual basis for objecting to the validity or = enforceability of=20 the claim or lien. The motion may be accompanied by supporting=20 affidavits.

Id. Here, the Salon = brought this=20 suit, in part, to declare Ibarra's mechanic's and materialman's = liens=20 invalid and to remove them, as it was authorized to do by section=20 53.160(a). Ibarra's challenge to the Salon's standing to bring the = suit is=20 a separate question.^{=20
(4)}

"A plaintiff has standing when = it is=20 personally aggrieved, regardless of whether it is acting with = legal=20 authority." Nootsie, Ltd. v. Williamson County Appraisal = Dist.,=20 925 S.W.2d 659, 661 (Tex. 1996). We consider whether the plaintiff = has a=20 sufficient relationship with the lawsuit so as to have a = "justiciable=20 interest" in its outcome. Austin Nursing Ctr., Inc. v. = Lovato,=20 171 S.W.3d 845, 848 (Tex. 2005). The general test for = standing=20 requires (1) the existence of a real controversy between the = parties,=20 which (2) will be actually determined by the judicial declaration = sought.=20 Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001); Tex. = Ass'n of=20 Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. = 1993). Unless=20 standing is conferred by statute, a plaintiff must demonstrate = that he=20 "possesses an interest in a conflict distinct from that of the = general=20 public, such that the defendant's actions have caused the = plaintiff some=20 particular injury." Williams v. Lara, 52 S.W.3d 171, = 178-79 (Tex.=20 2000). We construe the petition in favor of the plaintiff and = review the=20 entire record to determine whether any evidence supports standing. = See=20 Tex. Ass'n of Bus., 852 S.W.2d at 446.

Here, the Salon must = demonstrate that it=20 possesses an interest in the lien conflict that is distinct, such = that=20 Ibarra's actions in asserting liens on the Landlord's fee estate = have=20 caused the Salon some particular injury. See Williams, 52 = S.W.3d=20 at 178-79. The Salon contends that the property description in = Ibarra's=20 lien affidavit was overbroad in that it encompassed all of the = Landlord's=20 property. The Salon contends that, by erroneously attaching liens = to the=20 Landlord's interest, Ibarra "affected [the Salon's] contractual=20 relationship with [the Landlord]." In other words, the Salon = contends that=20 it has an interest that is affected by the existence of the = allegedly=20 invalid liens. We review the entire record to determine whether = any=20 evidence supports the Salon's standing. See Tex. Ass'n of = Bus.,=20 852 S.W.2d at 446.

Our review of the record = indicates that,=20 pursuant to the Salon's lease contract with the Landlord, the = Salon "acts=20 as a principal and not as the agent of the Landlord" with regard = to the=20 making of improvements to the premises and that the Salon "agrees = to=20 indemnify and hold [the] Landlord harmless from all claims = (including=20 costs and expenses of defending against such claims) arising or = alleged to=20 arise from any act or omission of . . . [the Salon's] . . . = contractors,=20 subcontractors, laborers, [and] materialmen . . . ." In addition, = pursuant=20 to the lease, the Salon "shall have no authority to place any lien = upon=20 the leased premises or any interest therein" and any act which = allows a=20 lien to be created against the premises is considered an "Event of = Default" that may result in termination of the lease, eviction of = the=20 Salon, and liability of the Salon to the Landlord for damages and=20 expenses.

We conclude that because the = Salon is=20 contractually bound under the lease to defend the Landlord against = a suit=20 by the Salon's subcontractors and the presence of Ibarra's liens = on the=20 fee estate as a result of improvements made to the Salon's = leasehold=20 constitutes a default by the Salon under its lease, the Salon has=20 demonstrated that it is "personally aggrieved" by Ibarra's liens = and that=20 the Salon has a sufficient relationship with the lawsuit to have a = "justiciable interest" in its outcome. See Lovato, = 171=20 S.W.3d at 848; see also Taylor Elec. Servs., Inc. v. = Armstrong=20 Elec. Supply Co., 167 S.W.3d 522, 532 (Tex. App.--Fort Worth = 2005, no=20 pet.) (concluding, in context of standing to file suit under = fraudulent=20 lien statute, that contractor had standing to challenge = subcontractor's=20 lien against fee estate because contractor had contractually = agreed to=20 indemnify fee estate owner in the event of a lien against the fee = estate=20 arising from construction).

Accordingly, we overrule = Ibarra's first=20 issue.

C.=20 Verification

In what we construe as his = second issue,=20 Ibarra contends that the trial court erred by granting summary = judgment in=20 favor of the Salon because the Salon's motion to vacate Ibarra's = liens was=20 not properly verified. Specifically, Ibarra contends that, = although the=20 Salon's motion was accompanied by the sworn affidavit of its = president,=20 Peggy Nicholes, the motion was not verified as required by section = 53.160.=20 See Tex. Prop. Code Ann. =A7 53.160(a). The plain = language of=20 section 53.160 requires a motion in a suit to remove an invalid = lien to=20 "be verified" and permits the motion to "be accompanied by = supporting=20 affidavits." See Tex. Prop. Code Ann. =A7 53.160. =

Here, the Salon provided the = sworn=20 affidavit of its president, Peggy Nicholes. In her affidavit, = Nicholes=20 attests to the Salon's legal and factual bases for objecting to = the=20 validity of Ibarra's liens. Texas Rule of Civil Procedure 193 = requires=20 certain pleas to be "verified by affidavit," including those = matters=20 "required by statute to be pleaded under oath." See Tex. = R. Civ.=20 P. 93. Ibarra has not cited any authority for his contention that = a motion=20 under this chapter cannot be verified by sworn = affidavit.

We conclude that the Salon = presented a=20 verified motion, as required, by section 53.160. Accordingly, = Ibarra's=20 second issue is overruled.

D. Removal of the=20 Liens

In what we construe as his = third issue,=20 Ibarra contends that "[t]he trial court has no authority to = summarily=20 order the removal of the lien claiming affidavit from the real = property=20 records as to the Landlord on the grounds asserted." Ibarra = contends that=20 section 53.160 does not "permit joinder of a legal question as = complex as=20 the question, necessarily fact-intensive, of a Landlord's = involvement in a=20 build-out project."

Section 53.160 expressly = provides=20 authority for a trial court to hear a motion to remove a lien = under this=20 section and, if the trial court determines that the movant is = entitled to=20 remove the lien, for the court to "enter an order removing the = lien=20 claimed in the lien affidavit." See Tex. Prop. Code Ann. = =A7=20 53.160(e). Section 53.160 permits as grounds for objecting to the = validity=20 of a lien that the affidavit claiming a lien failed to comply with = section=20 53.054. Id. =A7 53.160(b)(2). = Section=20 53.054 provides that an affidavit claiming a lien "must contain=20 substantially . . . a description, legally sufficient for = identification,=20 of the property sought to be charged with the lien." Id. = =A7=20 53.054.

Here, the Salon objected to the = validity=20 of Ibarra's liens on the grounds that Ibarra's affidavits = contained an=20 overly broad property description. The Salon contends that = Ibarra's=20 assertion of liens over the entire fee estate of Royal Oaks Plaza = was=20 improper because the Landlord did not contract for the = improvements to the=20 leased space. The Salon contends that, at most, Ibarra could have = been=20 entitled only to a lien against the Salon's leased premises. =

Ibarra contends that, because = the Salon's=20 lease provided that the Landlord must approve the Salon's = build-out plans=20 and that the Landlord would reimburse certain improvements from a=20 "build-out fund," the Landlord "retained control" over the = improvements=20 such that the Landlord is presumed to have been the true = contracting=20

party and is made subject to = the liens=20 seeking to enforce the obligation to pay for the work done, = citing, as=20 authority for this proposition, Bond v. Kagan-Edelman = Enters.,=20 985 S.W.2d 253, 261 (Tex. App.--Houston [1st Dist.] 1999), = rev'd in=20 part on other grounds, 20 S.W.3d 706. We disagree.

"Our courts have long held that = a=20 mechanic's and materialman's lien attaches to the interest of the = person=20 contracting for construction." Commercial Structures & = Interiors,=20 Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 835 = (Tex.=20 App.--Fort Worth 2006, no pet.) (quoting Diversified Mortgage=20 Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 = S.W.2d 794,=20 805 (Tex. 1978)). When a lessee contracts for construction, any = resulting=20 mechanic's lien attaches only to the leasehold interest and not to = the fee=20 interest of the lessor. Id.; Bond, 985 S.W.2d at = 261;=20 2811 Assocs. Ltd v. Metroplex Lighting & Elec., 765 = S.W.2d=20 851, 853 (Tex. App.--Dallas 1989, writ denied); see also = Schneider v.=20 Delwood Ctr., Inc., 394 S.W.2d 671, 673 (Tex. Civ.=20 App.--Austin 1965, writ ref'd n.r.e.) (explaining that rights of=20 contractor or materialman can rise no higher than those of person = with=20 whom he contracted). Unless the owner of the land is also a party = to the=20 construction contract or the lessee is acting as the authorized = agent of=20 the lessor, no mechanic's lien attaches to the fee estate. = Inman v.=20 Orndorff, 596 S.W.2d 236, 238 (Tex. Civ. App.--Houston [1st = Dist.]=20 1980, no writ); Rosen v. Peck, 445 S.W.2d 241, 243 (Tex. = Civ.=20 App.--Waco 1969, no writ).

Our examination of the lease = shows that=20 the Salon was required to present its design plans to the Landlord = for=20 written approval and to ensure that all work was performed in a=20 workmanlike manner and in accordance with applicable codes. In = addition,=20 the lease provides that all improvements became the property of = the=20 Landlord and that the Salon had no "right, title, or interest = (including=20 lien interest)" in those improvements "except as a Tenant under = the=20 provisions of [the] lease." However, the lease also requires the = Salon to=20 "promptly pay any and all contractors and materialmen, so as to = avoid the=20 possibility of a lien being filed for record on the Leased = Premises," and=20 to indemnify and hold the Landlord harmless from all claims. = Further, the=20 lease expressly states that the Salon "shall have no authority to = place=20 any lien upon the Leased Premises or any interest therein nor in = any way=20 to bind" the Landlord and that the Landlord "expressly disclaims = liability=20 for the cost of labor performed and materials furnished." The = lease=20 further provides for a construction allowance to be paid directly = to the=20 Salon, but only after all of the Salon's construction is = completed, a=20 certificate of occupancy permit is obtained, and a final lien = release is=20 obtained from the Salon's general contractor. We cannot conclude, = as=20 Ibarra urges, that this language constitutes evidence that the = Landlord=20 was the true contracting party in procuring the improvements to = the Leased=20 Premises.

In addition, Bond does = not=20 support Ibarra's contentions. In Bond, Irwin leased space = for a=20 restaurant in a shopping center owned by Kagan. Bond, 985 = S.W.2d=20 at 255. Prior to the commencement of the lease, Kagan hired Irwin = to act=20 as its general contractor to build out the restaurant. Id.=20 Completion of the premises was a condition precedent to the=20 commencement of Irwin's lease of the premises. Id. Irwin, = in=20 turn, hired Bond to complete the interior construction. Id. = Kagan=20 met with Bond, provided specifications, inspected Bond's work each = week,=20 and contributed $27,732 to Irwin toward the cost of construction. = Id.=20 When Irwin failed to pay Bond, Bond sent demands for payment = to Irwin=20 and to Kagan, and filed a lien against Kagan's fee interest in the = real=20 property. Id. at 256. The trial court concluded that Bond = did not=20 have a claim against Kagan under the Property Code. Id. = On=20 appeal, we recognized that "when a lessee contracts for = construction, the=20 mechanic's lien attaches only to the leasehold interest, not to = the fee=20 interest of the lessor." Id. at 261. However, there, we = concluded=20 that under the circumstances of that case Bond had a valid lien = against=20 Kagan's fee estate because completion of the construction was a = condition=20 precedent to commencement of the lease and, at the time of = construction,=20 Irwin was Kagan's general contractor, not his tenant. Id. = Hence,=20 Bond is inapplicable to this case.

Accordingly, Ibarra's third = issue is=20 overruled.

E. Timeliness of = Ibarra's=20 Response

In what we construe as his = fourth issue,=20 Ibarra contends that his response to the Salon's motion for = summary=20 judgment was improperly deemed untimely. Specifically, Ibarra = contends=20 that "[a]t hearing [sic], the Court observed the absence from the = clerk's=20 file [of] any response by Ibarra." Ibarra contends that his = response was=20 timely filed but that it was not included in the trial court's = paper file=20 at the time of the hearing because of a clerical delay at the = trial court.=20 Ibarra contends that "[t]he only good explanation for the trial = court's=20 granting of the summary judgment against Ibarra and in favor of = [the=20 Salon] is that the Court disregarded [Ibarra's] response, perhaps=20 believing it was late filed."

The Salon does not dispute the = timeliness=20 of Ibarra's response and contends that Ibarra's response was in = fact=20 before the trial court. The Salon contends that, at a hearing = conducted=20 July 12, 2004, the trial court heard from both parties on the = timeliness=20 of Ibarra's response and that, without comment, the trial court = proceeded=20 to allow both parties to present their arguments.

We note that Ibarra's response = appears in=20 the clerk's record and that there is nothing in the record to = indicate=20 that Ibarra's response was stricken. The record on appeal does not = contain=20 a transcript of the hearing. We cannot conclude on the record = before us=20 that the trial court erred by failing to consider Ibarra's = response. There=20 is nothing in the record to suggest that the trial court struck = the=20 response as untimely or that it failed to consider the response. = Thus,=20 there is nothing presented for review. See Tex. R. App. = P.=20 38.1(h), (j).

Accordingly, Ibarra's fourth = issue is=20 overruled.

F. Fact=20 Issues

The Salon sought summary = judgment on=20 Ibarra's counterclaim for breach of contract and alternative claim = in=20 quantum meruit. In what we construe as his fifth issue, Ibarra = contends=20 that his response raised genuine issues of material fact that = precluded=20 summary judgment on his contract and quantum meruit claims. Ibarra = abandoned his quantum meruit claim on appeal. Thus, we address = only his=20 contract claim.

As the counter-defendant moving = for=20 summary judgment, the Salon had the burden either (1) to disprove = at least=20 one element of Ibarra's cause of action or (2) to plead and to=20 conclusively establish each essential element of an affirmative = defense to=20 rebut Ibarra's cause. See = Cathey,=20 900 S.W.2d at 341. Ibarra, as the nonmovant, had no burden to = respond to=20 the Salon's summary judgment motion unless the Salon conclusively=20 established its defense. M.D. Anderson Hosp. & Tumor = Institute v.=20 Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

Generally, a subcontractor = cannot recover=20 on a contract theory against a property owner unless the = subcontractor=20 establishes that he was in privity of contract with the property = owner.=20 City of Corpus Christi v. Acme Mech. Contractors, Inc., = 736=20 S.W.2d 894, 898 (Tex. App.--Corpus Christi 1987, writ denied). = Here,=20 unless there is an express contract making the Salon liable to = Ibarra, the=20 Salon is liable solely to Jamar, and Jamar is liable to Ibarra. = See=20 id.

The elements of Ibarra's breach = of=20 contract claim are: (1) the existence of a valid contract; (2) = performance=20 or tendered performance by the plaintiff; (3) breach of the = contract by=20 the defendant; and (4) damages sustained as a result of the = breach.=20 Prime Prods, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d = 631, 636=20 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

The Salon contended in its = motion for=20 summary judgment that no valid contract existed between the Salon = and=20 Ibarra. A valid contract is formed when the following = elements=20 are present: (1) an offer, (2) acceptance in strict compliance = with the=20 terms of the offer, (3) a meeting of the minds, and (4) execution = and=20 delivery of the contract with the intent that it be mutual and = binding.=20 Id. In determining the existence of a valid = oral=20 contract, we look to the communications between the parties and to = the=20 acts and circumstances surrounding those communications.=20 Id.

To support its contention, the = Salon=20 appended the affidavit of its president, Peggy Nicholes, a copy of = the=20 lease, and a copy of an invoice from Ibarra to Jamar. In her = affidavit,=20 Nicholes attested that she entered an oral agreement with Jamar to = construct improvements to the Leased Premises and that Jamar, as = the=20 general contractor on the project, agreed to supervise and pay all = subcontractors. Jamar hired Ibarra as a subcontractor. Nicholes = attested=20 that the Salon made progress payments to Jamar and that Jamar had = sole=20 responsibility of paying the subcontractors from those sums. =

In his response, Ibarra = contended that=20 there was a genuine issue of material fact regarding the existence = of a=20 contract in that the Salon expressly promised Ibarra that he would = be=20 paid. As evidentiary support, Ibarra appended his affidavit, the = lease,=20 and an accounting from Jamar to the Salon, dated October 21, 2003. =

In his affidavit, Ibarra = attested that=20 Jamar hired him to provide custom cabinetry at the Salon. Ibarra = attested=20 that he agreed to accept the job at $54,000, an amount = substantially below=20 his bid of $80,000, because Jamar promised to hire Ibarra on an = upcoming=20 larger project and because Jamar promised to provide assistance = with labor=20 and some of the materials. Ibarra attested that, during the = construction=20 period, he did not talk with the Nicholeses, but rather, he spoke = with=20 their designer. Ibarra attested that, at the end of the = construction=20 period, as Ibarra was delivering the final pieces, he inquired = with the=20 Salon about getting paid, as follows in pertinent part:

Jamar did not pay me the way = and at the=20 times he promised. I was not being paid what I was owed and = promised. I=20 got worried that I was not getting paid. I had installed = everything=20 already except the hair stations. I was owed most of my bid price, = plus a=20 large number of extras. It was time to bring the hair stations to = the=20 project from my shop. I wanted to know about getting paid before I = installed them. . . . I delivered the hair stations and I asked = Lisa [sic]=20 and Peggy if I was going to get paid for my work. Jamar had said = to me=20 that Peggy and Lisa [sic] had said they were going to pay all the = people=20 who were still owed money. So I asked them. They said yes we will = pay you=20 directly ourselves but we are double paying but we just need an = invoice=20 from you for the amount we will pay you. They said we are going to = pay=20 everybody. They said they had already paid Jamar. They said Jamar = owed all=20 the workers and subcontractors on the job. I had to go back and do = the=20 invoice at the shop. . . . The architect during this phase = promised me=20 that I was going to be paid too. . . . So I made them an invoice = for a=20 bare minimum amount if they would pay me then. This is the invoice = that is=20 marked as Exhibit B to Exhibit 1 in the motion for summary = judgment.=20

As Ibarra's affidavit = indicates, and the=20 parties do not dispute, Ibarra negotiated and entered into a = contract with=20 Jamar to provide cabinetry to the Salon project. It is undisputed = that=20 Jamar supervised Ibarra's work, save limited input from the = designer.=20 Jamar's accounting statement that Ibarra appended to his response, = dated=20 October 21, 2003, is labeled "Final" and indicates that Jamar made = the=20 payments to Ibarra and that Jamar handled upgrades and extras for = the=20 cabinetry. Ibarra attested in his affidavit that he became = concerned when=20 he delivered the final pieces because Jamar had not paid him as = promised.=20 Ibarra attested that the cabinetry was finished

when he spoke with the = Nicholeses. Ibarra=20 seems to suggest, without providing any authority for his = contention, that=20 a wholly new contract, separate from his contract with Jamar, was = created=20 with the Salon upon the delivery of the final pieces. However, the = record=20 shows that the invoice Ibarra referenced in his affidavit is = written=20 solely to Jamar as "Hammer Built Construction." There is nothing = in the=20 record that shows that Ibarra billed the Salon or looked to the = Salon for=20 payment.

We cannot conclude on the = evidence before=20 us that Ibarra has met his burden to show that there is a genuine = issue of=20 material fact as to the existence of a contract for direct payment = by the=20 Salon. See City of Houston v. Clear Creek Basin Auth., = 589 S.W.2d=20 671, 678 (Tex. 1979).

Accordingly, Ibarra's fifth = issue is=20 overruled.

CONCLUSION

We affirm the judgment of the = trial=20 court.

Laura Carter Higley

Justice

Panel consists of Justices = Nuchia, Keyes,=20 and Higley.

1. " " -=20

2. - -=20

4. ' ' ' - ' - --=20

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