Motion-Secondary: CARROLL DISTRIBUTING & CONSTRUCTION SUPPLY, INC. D/B/A CARROLL CONSTRUCTION SUPPLY AND TUF-N-LITE, LLC vs. OSBURN CONTRACTORS, LLC

On April 21, 2023 a Motion-Secondary was filed involving a dispute between Carroll Distributing & Construction Supply, Inc. D B A Carroll Construction Supply And Tuf-N-Lite, Llc, and Osburn Contractors, Llc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
9/25/2023 3:53 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY

CAUSE NO: DC-23-05250

CARROLL DISTRIBUTING & IN THE DISTRICT COURT OF

§§§§§§§§§§§§
CONSTRUCTION SUPPLY, INC. d/b/a
CARROLL CONSTRUCTION SUPPLY
and TUF-N-LITE, LLC,

Plaintiﬁfv,
DALLAS COUNTY, TEXAS
v.

OSBURN CONTRACTORS, LLC,

Defendant. 193RD JUDICIAL DISTRICT

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND MOTION FOR CONTINAUNCE OF SUBMISSION DATE

Defendant, OSBURN CONTRACTORS, LLC (“Osburn”), ﬁles this Response to Plaintiff,

CARROLL DISTRIBUTING & CONSTRUCTION SUPPLY, INC. d/b/a CARROLL CONSTRUCTION SUPPLY

(“Carroll”) and TUF-N-LITE, LLC (“TNL”) (collectively “Plaintiffs”) Motion for Summary

Judgment (“Motion”) and Osbum’s Motion for Continuance, and would respectfully show as

follows:

I.
SUMMARY 0F RESPONSE

l. Plaintiffs Carroll and TNL are not entitled to ﬁnal summary judgment because

Plaintiffs have not established they are entitled to judgment as a matter of law on their numerous

causes of actions: (l) breach of contract, (2) suit on a sworn account; (3) quantum meruit; or (4)
entitled to attorney’s fees and costs. There several genuine issues of material fact that preclude

summary judgment. Additionally, Plaintiffs’ Motion is premature and Osburn requests a

continuance of the Motion’s submission date to conduct necessary discovery.
II.
ARGUMENT AND AUTHORITIES

2. To be entitled to summary judgment, a movant must establish there is no genuine

issue of material fact so that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P.

l66a(c); Mann Franljort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). In particular, a plaintiff moving for summary judgment must conclusively prove all

essential elements of its claim. Id. If a plaintiffs motion and summary judgment evidence establish

its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a material fact

issue sufﬁcient to defeat summary judgment. Id. Courts review evidence in the light most favorable

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and

disregard evidence contrary to the nonmovant unless reasonable jurors could not. Id. at 848.

3. The Motion should be denied because Plaintiffs failed to show (l) they are entitled

to judgment as a matter of law and (2) genuine issues of material fact preclude summary judgment.

TEX. R. CIV. P. 166a(c). Summary judgment motions must stand or fall on their own merits, and

the Osburn has no burden unless the Plaintiffs conclusively establishes its cause of action. Chavez

v. Kansas City S. Ry., 520 S.W.3d 898, 900 (Tex. 2017).

A. There are fact issues that preclude Plaintiffs’ summary judgment on their
breach of contract claim.

4. To prevail on summary judgment of a breach of contract claim, Plaintiff Carroll

and TNF must establish there is no genuine issue of material fact that (l) there is a valid and

enforceable contract; (2) that Plaintiff has standing to sue for breach of contract; (3) that Plaintiff

performed, tendered performance, or was excused from performing its contractual obligations; (4)

Osburn breached the contract; and (5) Osburn’s breach caused Plaintiff injury. Hackberry Creek

OSBURN’S RESPONSE To PLAmTIFEs’ MOTION FOR SUMMARY JUDGMENT 2
Country Club, Inc. v. Hackberry Creek HOA, 205 SW3d 46, 66 (Tex. App—Dallas 2006, pet.

denied).

5. Plaintiffs do not establish as a matter of law that there is (1) a contract between

Osburn and Carroll or (2) a contract between Osburn and TNF. Plaintiffs refer to a “Carroll

Contract” and “TNF Contract” but do not provide any written agreement between Osburn and

Plaintiffs related to the scope of materials or services that Plaintiff allegedly provided. To be an

enforceable contract, the agreement “must address all of its essential and material terms with a

reasonable degree of certainty and deﬁniteness.” Fischer v. CTMI, LLC, 479 S.W.3d 231, 237

(Tex. 2016). Plaintiffs do not attach or describe (1) the alleged contract between Carroll and

Osburn or (2) the alleged contract between TNF and Osburn. Instead, Plaintiffs rely on conclusory

and inadmissible evidence via the Afﬁdavit of Jeremy Schutte.

B. Osburn objects to portions of the Afﬁdavit of Jeremy Schutte.

6. A party must present its summary-judgment evidence in a form that would be

admissible at trial under the Texas Rules of Evidence. TEX. R. CIV. P. 166a(f); Fortitude Energy

LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 178 (Tex. App—Houston [1“ Dist. 2018], no pet).

Summary-judgment evidence cannot be conclusory. A conclusory statement is one that does not

provide the underlying facts to support the conclusion. Further, a statement is speculative if it is
based on a guess and lacking in supporting facts. See Nat. Gas Pipeline Co. ofAm. v. Justiss, 397

S.W.3d 150, 156 n. 5 (Tex. 2012). Further, inadmissible hearsay is not competent summary

judgment evidence.

OSBURN’S RESPONSE T0 PLAmTIFFs’ MOTION FOR SUMMARY JUDGMENT 3
Source Portion Objections

Paragraph 4 Entire paragraph Hearsay

“Speciﬁcally, the prices charged to
Defendant Osburn were in accordance Hearsay
Paragraph 5 with the rates speciﬁed in the Carroll
Contract.”

Paragraph 10 Entire paragraph Legal conclusion

Entlre paragraph
Paragraph 14 Hearsay
“The prices charged to Defendant
Osburn were just and true because they
were in accordance with the terms of the Hearsay
Paragraph 15
TNL Contract...”

Paragraph 20 Entire paragraph Legal conclusion

7. Throughout the Afﬁdavit of Jeremy Schutte, Mr. Schutte refers to the “Carroll

Contract” or “TNF Contract” but does not attach any written agreement between the parties.

Plaintiffs cannot establish that there is a valid and enforceable agreement between the parties and

are not entitled to summary judgment on their breach of contract claims.

C. Plaintiffs cannot rely on a suit on a sworn account because Osburn ﬁled a
Veriﬁed Denial and the record does not contain any offsets or credits
Osburn is entitled to.

8. A suit on a sworn account is not an independent cause of action; it is a procedural

rule for proof of certain types of claims. TEX. R. CIV. P. 185; see also Pandz'ti v. Apostle, 180

S.W.3d 924, 926 (Tex. App—Dallas 2006, no pet.). When a defendant falls to ﬁle a veriﬁed denial

to a sworn account, the sworn account is received as prima facie evidence of the debt and the

plaintiff may be entitled to summary judgment on the pleadings. Nguyen v. Short, How, Frels &

Heitz, PC, 108 S.W.3d 558 (Tex. App—Dallas 2003). Here, Osburn ﬁled a Veriﬁed Denial to

OSBURN’S RESPONSE To PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 4
Plaintiffs’ suit on a sworn account and plead the afﬁrmative defenses of offset and credit. “A
defendant may rely on an afﬁrmative defense in an action on a sworn account.” W. Healthcare,

LLC v. Herda, No. 05-21-00603-CV, 2023 WL 1878880, at *4 (Tex. App—Dallas Feb. 10,

2023)(cz'ting Rizk v. Fin. Guardian Ins. Agency, Ina, 584 S.W.2d 860, 863 (Tex. 1979).

9. There are fact issues that preclude summary judgment because Osburn is entitled

to offset and credit. A suit on a sworn account must “reveal” any offsets made to the account. TEX.
R. CIV. P. 185; see also Panditz' v. Apostle, 180 S.W.3d 924, 926 (Tex. App—Dallas 2006, no

pet). Plaintiffs do not establish that there have been any offsets or credits due to Osburn’s payment.

D. Plaintiffs do not conclusively prove their quantum meruit claim as a matter
of law.

10. To obtain summary judgment on a quantum meruit claim, Plaintiffs are required to

conclusively prove, as a matter of law, that: (1) valuable services were rendered or material

fumished; (2) for the person sought to be charged; (3) which services and materials were accepted

by the person sought to be charged, used, and enjoyed by him; (4) under such circumstances as

reasonable notiﬁed the person sought to be charged that the plaintiff in performing such services

was expecting to be paid by the person sought to be charged. Ellis v. Reliant Energy Retail Servs.,

L.L.C., 418 S.W.3d 235, 255 (Tex. App—Houston [14th Dist.] 2013, no pet.).

11. While portions of Plaintiffs’ Motion mention quantum meruit, Plaintiffs do not

address any elements of its quantum meruit claim. In Ellis, the court reversed the trial court’s

summary judgment on plaintiff’s quantum meruit claim because plaintiff did not “list, much less

address, the elements of quantum meruit in its motion.” Id. Since plaintiff presented no evidence

that defendant accepted plaintiff’s services under such circumstances that reasonably notiﬁed an

expectation of payment, summary judgment on quantum meruit claim was improper. Id.

OSBURN’S RESPONSE T0 PLAmTIFFs’ MOTION FOR SUMMARY JUDGMENT 5
E. In the alternative, Osburn requests a continuance is not for delay but so
that justice may be done.

12. Osburn requests a continuance because there are several legal and fact issues that

require meaningful discovery. In considering a continuance, courts will consider (l) length of time

the case had been on ﬁle before the hearing, (2) the materiality of the discovery sought, (3) whether

the party seeking the continuance exercised due diligence in obtaining the discovery, and (4) what

the party expects to prove with the discovery. Cooper v. Circle Ten Council Boys Scouts of Am.,
254 S.W.3d 689, 696 (Tex. App—Dallas 2008, no pet.). This case has been on ﬁle for less than a

year. Plaintiffs ﬁled this lawsuit on April 21, 2023 and Osburn ﬁled its Veriﬁed Answer on June

30, 2023.

l3. Plaintiffs have not ﬁled the required initial disclosures or disclosed individuals with

knowledge of its claim. Prior to Plaintiffs’ Motion, the parties have not exchanged any discovery

requests. The following discovery that needs to be completed:

o Plaintiffs have not served required initial disclosures;

o The parties must exchange document production;

o
Deposition of Jeremy Schutte, Plaintiffs’ vice president;

o
Deposition of Carroll’s corporate representative;

o
Deposition of TNF’s corporate representative;

o
Deposition of Osburn’s representative, if requested.

14. The discovery sought is material to Plaintiffs’ claims and Osburn’s defenses.

Osburn’s request is not for delay but so that justice may be done.

OSBURN’S RESPONSE T0 PLAmTIFFs’ MOTION FOR SUMMARY JUDGMENT 6
IV.
RELIEF REQUESTED

Defendant, OSBURN CONTRACTORS, LLC., respectfully requests that the Court deny

Plaintiff, CROWN FINANCIAL SERVICES, LLC.’S Motion for Summary Judgment, and for further

relief, both general and special, at law or in equity, to which Plaintiff may be justly entitled.

DATED: September 25, 2023

Respectfully submitted,

PLLC

72
ROTHBER:
Timothy A. hothberg
Texas State Bar No.2 24060525
trothberg@rothberg.law
Crystal T. Dang
State Bar No. 24097566
cdang@rothberg.law
Tony Ali
State Bar No. 24108585
tali@rothberg.law
4309 Yoakum Blvd.
Houston, Texas 77006
Telephone: (713) 424-0720

ATTORNEYS FOR DEFENDANT
OSBURN CONTRACTORS, LLC

OSBURN’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 7
CERTIFICATE OF SERVICE
I hereby certiﬁed that a true and correct copy of the foregoing instrument was forwarded
to all counsel of record, as follows, in accordance with Texas Rules of Civil Procedure, on 25th
day of September 2023:

Stephen W. Davis Via e-ﬁle service
Matthew T. J inkins
COOK KEITH & DAVIS, A PROFESSIONAL CORPORATION
6688 North Central Expressway, Suite 1000
Dallas, Texas 75206

T 97
Attorneys for Plaintiffs

Timothy A. Refhberg

OSBURN’S RESPONSE To PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Crystal Dang on behalf of Crystal Dang
Bar No. 24097566
cdang@rothberg.law
Envelope ID: 79913979
Filing Code Description: Response
Filing Description: DEFENDANT RESPONSE TO (PL) MSJ & MTN CONT
OF SUBMISISON DATE
Status as of 9/25/2023 4:20 PM CST

Associated Case Party: CARROLL DISTRIBUTING & CONSTRUCTION SUPPLY,
INC. D/B/A CARROLL CONSTRUCTION SUPPLY AND TUF-N-LlTE, LLC

Name BarNumber Email TimestampSubmitted Status

Stephen Davis 24066792 all@cookkeithdavis.com 9/25/2023 3:53:00 PM SENT
Matthew Jinkins 24096778 matt@cookkeithdavis.com 9/25/2023 3:53:00 PM SENT
Darrell Cook all@cookkeithdavis.com 9/25/2023 3:53:00 PM SENT

Associated Case Party: OSBURN CONTRACTORS, LLC

Name BarNumber Email TimestampSubmitted Status

Timothy A.Rothberg trothberg@rothberg.law 9/25/2023 3:53:00 PM SENT
Crystal Dang cdang@rothberg.law 9/25/2023 3:53:00 PM SENT
Tony Ali tali@rothberg.law 9/25/2023 3:53:00 PM SENT

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September 25, 2023

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April 21, 2023

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Motion-Secondary: CARROLL DISTRIBUTING & CONSTRUCTION SUPPLY, INC. D/B/A CARROLL CONSTRUCTION SUPPLY AND TUF-N-LITE, LLC vs. OSBURN CONTRACTORS, LLC

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