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,
v.
FUNG'S KITCHEN, INC., DOUBLE DUCK, INC., MAN LING FUNG, AND TAT HOI FUNG,
Appellees.
No. 01-05-01077-CV.
Court of Appeals of Texas, First District, Houston.
Opinion issued June 21, 2007.
Panel consists of Justices NUCHIA, HANKS, and BLAND.
MEMORANDUM OPINION
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.
Background
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.
We disagree.
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.
Sworn Account
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.
Void Judgments
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.
Analysis
"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.
Conclusion
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.