Marina Muzquiz v. Juan Jose Vasquez--Appeal from 293rd Judicial District Court of Maverick County

MEMORANDUM OPINION
No. 04-06-00588-CV
Marina MUZQUIZ,
Appellant
v.
Juan Jose VASQUEZ,
Appellee
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 04-09-20318-MCV
Honorable Cynthia L. Muniz, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: September 5, 2007

 

AFFIRMED

This is an appeal from a trial court's order granting a no evidence motion for summary judgment. In a single issue Marina Muzquiz contends the trial court erred in granting Juan Jose Vasquez's no evidence motion for summary judgment. We affirm.

Factual And Procedural Background

Muzquiz and Vasquez were divorced in 2002. In the final decree of divorce, the trial court awarded Muzquiz a house located on Washington Street in Eagle Pass, Texas. At the time of the divorce, Vasquez was living in the house. Vasquez was ordered to deliver the property, the keys, and all documents relating to the property to Muzquiz on August 25, 2002, ten days from the date of the oral rendition of the divorce. The record is silent as to the date Vasquez actually vacated the premises, but according to Muzquiz she discovered Vasquez was no longer residing in the house on October 17, 2002. Muzquiz claims that when she took possession of the house she discovered that it had been greatly damaged and virtually "destroyed." More specifically she claimed:

. . . the electrical wiring had been torn and stripped from the walls, the walls and ceiling were battered and contained holes, appliances were missing, the plumbing was damaged, windows were broken along with other damages. The door was found open and unsecured by its customary lock.

 

Muzquiz sued Vasquez alleging several causes of action including breach of contract. (1) In her breach of contract claim Muzquiz alleged Vasquez "breached their contract as cotenants by failing to safeguard and deliver the property in a reasonable manner to insure it's safety and condition." In response, Vasquez filed a no evidence motion for summary judgment in which he contended there was no evidence (1) of a valid contract, (2) Muzquiz performed or tendered performance under any contract; (3) Vasquez breached any contract, or (4) Muzquiz was damaged by any breach. Muzquiz filed a response to which she attached her own affidavit, a copy of a real estate lien note, a release of lien, a copy of the final divorce decree and, photographs showing the alleged damage to the house. Vasquez objected to the attachments on various grounds. Following a hearing, the trial court took the matter under advisement. The court ultimately granted the no evidence motion. Muzquiz then perfect this appeal.

Standard of Review-No Evidence Motion for Summary Judgment

Under Rule 166a(i), a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 487 (Tex. App.--San Antonio 2000, pet. denied); Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. Reese, 148 S.W.3d at 99; Wilkerson, 21 S.W.3d at 487; Tex. R. Civ. P. 166a(i). More than a scintilla of evidence exists only when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). Less than a scintilla exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 (Tex. 2004); Moore, 981 S.W.2d at 269.

Analysis

In her sole point of error, Muzquiz contends the trial court erred in granting Vasquez's no evidence motion for summary judgment. To establish a breach of contract claim, a plaintiff must prove: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) a breach by the defendant; and (4) the plaintiff incurred damages as a result of the defendant's breach. MG Bldg. Material, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 61 (Tex. App.-San Antonio 2005, pet. denied). "A valid and enforceable contract is formed by an offer, an acceptance, a meeting of the minds, and an expression of the terms with sufficient certainty so that there is no doubt regarding the parties' intentions." Id. Vasquez alleged in his no evidence motion that no valid contract existed, i.e., there was no evidence to support the first required element of a breach of contract claim. In response, Muzquiz presented a copy of a 1999 real estate lien note. On appeal, this is the only document claimed by Muzquiz to support the creation and existence of a valid contract between herself and Vasquez. She argues the note is some evidence that she and Vasquez entered into a contract as co-tenants to purchase the property. We disagree.

The note is between Muzquiz and Vasquez as makers and Raul H. Ramirez, V as payee. The 1999 note provided that Muzquiz and Vasquez borrowed $27,500.00 from Ramirez and, as collateral for the loan, pledged the property at issue in this case. The note created an obligation on the part of Muzquiz and Vasquez to repay Ramirez $27,500.00 plus interest. On its face, it did not create a contract between Muzquiz and Vasquez with regard to the property. Moreover, we have found no authority providing that execution of a note as co-makers automatically creates a co-tenancy in the collateral pledged to secure the note. Thus, the real estate lien note is no evidence that a contract existed between Muzquiz and Vasquez with regard to the property at issue, much less a contract imposing some duty upon Vasquez to deliver the property to Muzquiz in any certain condition years later.

Because Vasquez alleged there was no evidence to support the existence of a valid contract, one of the required elements for a breach of contract claim, it was encumbent upon Muzquiz to produce more than a scintilla of evidence establishing the existence of a valid contract between herself and Vasquez. See Reese, 148 S.W.3d at 99; Wilkerson, 21 S.W.3d at 487); Tex. R. Civ. P. 166a(i). The 1999 note is no evidence that a contract existed between Muzquiz and Vasquez with regard to the property at issue and its condition. The evidence relied upon by Muzquiz certainly does not rise to a level that would enable reasonable and fair-minded people to differ in their conclusions about whether a contract existed. See Havner, 953 S.W.2d at 711; Moore, 981 S.W.2d at 269.

Conclusion

In light of Vasquez's no evidence motion for summary judgment, Muzquiz's failure to present any evidence to support the existence of a valid contract defeats her breach of contract claim. Accordingly, we hold the trial court properly granted the no evidence motion for summary judgment and affirm its judgment.

 

Steven C. Hilbig, Justice

1. The other causes of action were intentional infliction of emotional distress, negligence, conversion, and waste. As to these claims, Vasquez filed a traditional motion for summary judgment based on statute of limitations, which the trial court granted. Muzquiz makes no complaint in this appeal about the trial court's order granting Vasquez's traditional motion for summary judgment.