Preview
12/23/2019 5:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 39484068
By: Joshua Bovell
Filed: 12/23/2019 5:39 PM
NO. 2018-69591
JEFFERSON SMITH, LLC, § IN THE DISTRICT COURT
§
Plaintiffs, §
§
vs. §
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§
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JETALL COMPANIES, INC, AND §
ALI CHOUDHRI §
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§
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Defendants Counterclaim § HARRIS COUNTY, TEXAS
Third Party Plaintiffs, §
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§
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vs. §
§
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JOHN QUINLAN, JEFFERSON SMITH, LLC. §
§
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Counterclaim and §
Third Party Defendants. Bu
§ 215TH JUDICIAL DISTRICT
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JETALL COMPANIES INC. AND ALI CHOUDHRI’S RESPONSE TO
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(THIRD) AMENDED MOTION FOR FINAL SUMMARY JUDGMENT
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TO THE HONORABLE JUDGE OF SAID COURT:
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Jetall Companies, Inc. and Ali Choudhri’ hereby file their Response to (Third) Amended
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Motion for Partial Summary Judgment as follows:
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SUMMARY JUDGMENT STANDARDS
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Traditional Motion for Summary Judgment
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Plaintiff asserts a traditional motion for summary judgment. Summary judgment is proper
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only when there is no genuine issue of material fact and movant is entitled to judgment as a matter
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of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001); Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548-49 (Tex.1985); Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266, 268
(Tex.App.-El Paso 1995, writ denied); TEX.R. CIV. P. 166a(c). In determining whether a disputed
material fact issue exists, we take as true evidence favorable to the nonmovant, and every
reasonable inference must be indulged in favor of the nonmovant. Shah, 67 S.W.3d at 842 (citing
American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997)); Wyatt, 908 S.W.2d at
268 (citing Nixon, 690 S.W.2d at 548-49). As stated in Science Spectrum v. Martinez, 941 S.W.2d
910, 911 (Tex. 1997):
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Of course, summary judgment for a defendant is proper only when
the defendant negates at least one element of each of the plaintiff's
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theories of recovery, Gibbs v. General Motors Corp., 450 S.W.2d
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827, 828 (Tex. 1970), or pleads and conclusively establishes each
element of an affirmative defense. City of Houston v. Clear Creek
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Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).
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"The nonmovant has no burden to respond to a summary judgment motion unless the movant
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conclusively establishes its cause of action or defense." Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d
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217, 222-23 (Tex.1999). The movant offers no Bu
evidence to support its motion for summary
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judgment other that a copy of the pleading, and the court’s order saying the letter of intent is not
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enforceable, and a copy of a lis pendens. There is no evidence negating any element of any
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Respondents’ fraud claims, or establishing an affirmative defense to the fraud claims. Without
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any evidence supporting the motion, even without a response the motion should be denied. Rhone-
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Poulenc, Inc. v. Steel, 997 SW 2d at 222-23.
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No Evidence
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In a no-evidence motion for summary judgment, the party bearing the burden of proof
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alleges that adequate time for discovery has passed and that the non-movant still has no evidence
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to support one or more essential elements of a claim for which the non-movant would bear the
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burden of proof at trial. See Stierwalt v. FFE Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex.
App. — El Paso 2016, no pet.) (citing KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex.
2015)). "The motion must be specific in challenging the evidentiary support for an element of a
claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence
challenges to an opponent's case."Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009)
quoting TEX.R.CIV.P. 166a(I) comment; Wade Oil & Gas, Inc. v. Telesis Operating Company,
Inc., 417 S.W.3d 531, 540 (Tex. App. — El Paso 2013, no pet.). Other than in the title, no where
does the movants argue or mention a no evidence motion for summary judgment. A summary
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judgment may not be granted on grounds not presented in the motion. Gish, 286 S.W.3d at 310.
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In this case, the movants list seven issues (a through g) none of which are no evidence issues. As
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such it is insufficient for a no evidence motion for summary judgment.
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A no evidence motion for summary judgment is essentially a motion for a pretrial directed
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verdict. See TEX. R. CIV. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
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(Tex. 2003); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet.
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denied). We review the evidence in the light most favorable to the nonmovant, "crediting evidence
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favorable to [the nonmovant] if reasonable jurors could, and disregarding contrary evidence unless
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reasonable jurors could not." Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
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844, 848 (Tex. 2009); King Ranch, 118 S.W.3d at 751.
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OBJECTIONS TO SUMMARY JUDGMENT FORM
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Grounds Not Stated or Ambiguous
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The supreme court has held that the grounds for summary judgment must be contained in
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the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,
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339- 341 (Tex.1993). McConnell requires that summary judgment grounds be clearly listed and
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stated.
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There is nothing onerous or unreasonable about requiring the
movant to state the grounds upon which he seeks to win a lawsuit
without a trial. If the grounds are so obvious from the summary
judgment proof, what is burdensome about requiring the movant to
state them in the motion? Grounds may be stated concisely, without
detail and argument. But they must at least be listed in the motion.
Id., citing, Roberts v. Southwest Texas Methodist Hospital, 811 S.W.2d 141 (Tex.App.-San
Antonio 1991, writ denied). The McConnell court further explained:
If this court intended Rule 166a(c) to permit a summary judgment
movant to place, or possibly hide, grounds for summary judgment
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in a brief filed in support of the motion or in accompanying
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summary judgment evidence, the Rule could have easily provided:
"The motion for summary judgment or the brief in support thereof
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or the summary judgment evidence shall state the specific grounds
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therefor." Rule 166a(c), however, does not so provide. "[W]e are not
free to disregard... [the rule's] plain language. Nor should we revise
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the rule by opinion." Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d
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911, 915 (Tex.1992).[4] Although Rule 166a(c) is an admittedly
rigorous rule, it must be applied as written.
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Id. at 340-441. The Defendant lists two issues in its summary judgment. The first argues that
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there can be no fraud claim if the promised Bu
agreement is unenforceable. This argument is
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contrary to Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143, 152-54 (Tex.
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2015)(reliance damages recoverable even if contract is not enforceable). The second argues that
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Respondents seek only benefit of the bargain damages. Again this is untrue, Jetall did not limit
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its damages to “benefit of the bargain” damages, and specifically alleged that it relied to its
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detriment on the contract. The Declaration of Ali Choudhri establishes that in reliance upon the
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contract, Jetall placed a substantial tenant into the building that is the subject of the suit causing
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it reliance damages.
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Summary Judgment Evidence
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Respondents incorporate the Declaration of Ali Choudhri previously filed herein.
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ARGUMENT
The movants, again, have offered no evidence in support of their motion for summary
judgment. Pleadings are not evidence. Lyons v. Lindsey Morden Claims Management, Inc., 985
SW 2d 86, 92 (Tex. App.—El Paso, 1998, no pet). The respondents’ pleadings do admit the lack
of a fraud claim. A fraud claim can exist if a contract claim is not enforceable. Zorrilla v. Aypco
Construction II, LLC, 469 S.W.3d 143, 152-54 (Tex. 2015)(reliance damages recoverable even
if contract is not enforceable); Samson Lone Star Ltd. P'ship v. Hooks, 497 SW3d 1, 19-23 (Tex.
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App.-Houston [1st Dist.] 2016, pet. denied) (consequential damages and out of pocket
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damages available for fraud even if contract not enforceable). While Zorilla does not permit a
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benefit of the bargain damages, all other fraud damages are available. Id. In this case as set forth
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in the declaration of Ali Choudhri, Jetall suffered reliance and consequential damages as a result
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of the movants conduct, and the movants were unjustly enriched. Hasse v. Glazner, 62 S.W.3d
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795, 800 (Tex. 2001(out of pocket includes "efforts concerning demographics, decor, potential
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profits, and location.") Even so, it is the movants burden to conclusively establish the lack of
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damages, and it has made no attempt to do so. Accordingly, Summary Judgment must be denied.
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Response to Issues
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a. Does Jetall’s breach-of-contract counterclaim fail as a matter of law, given that
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the Court has declared that the December 2017 LOI is unenforceable?
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The fact that the court found that the LOI is unenforceable does not in an of itself preclude
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other theories of recovery. E.g. . Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143, 152-
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54 (Tex. 2015)(reliance damages recoverable even if contract is not enforceable); Samson Lone
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Star Ltd. P'ship v. Hooks, 497 SW3d 1, 19-23 (Tex. App.-Houston [1st Dist.] 2016, pet.
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denied) (consequential damages and out of pocket damages available for fraud even if contract
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not enforceable). Colbert v. Dallas Joint Stock Land Bank, 150 S.W.2d 771, 773(Tex. 1941)
b. Are Jetall’s fraud claims barred, given that those claims seek the “benefit of the
bargain” of the unenforceable December 2017 LOI?
In its amended counterclaim Jetall seeks damages other than benefit of the bargain
damages. The movants have not offered evidence that conclusively establishes that Jetall did
not suffer such damages. Further the declaration of Ali Choudhri establishes non- benefit of
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the bargain damages.
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c. Is Jetall’s statutory fraud claim barred, given that there is no enforceable
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contract for the sale of real estate?
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A claim for fraud can exist even in the absence of an enforceable contract. Zorrilla v.
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Aypco Construction II, LLC, 469 S.W.3d 143, 152-54 (Tex. 2015)(reliance damages
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recoverable even if contract is not enforceable); Samson Lone Star Ltd. P'ship v. Hooks, 497
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SW3d 1, 19-23 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) (consequential damages
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and out of pocket damages available for fraud even if contract not enforceable).
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d. Is Jetall’s new promissory estoppel claim barred, given that it could not have
“reasonably relied” on an unenforceable contract
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Promissory estoppel is available as a cause of action to someone who has reasonably
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relied to his detriment on an otherwise unenforceable promise. Wheeler v. White, 398 S.W.2d
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93, 96-97 (Tex.1965)(finding promissory estoppel available in a claim where the contract
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failed for indefiniteness).
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e. Is Jetall’s new unjust enrichment claim barred, given that the parties did not
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have a fiduciary relationship?
A party may recover under the unjust enrichment theory when one person has obtained a
benefit from another by fraud, duress, or the taking of an undue advantage. See Heldenfels Bros.,
Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Pope v. Garrett, 147 Tex. 18, 211
S.W.2d 559, 560, 562 (1948); Austin v. Duval, 735 S.W.2d 647, 649 (Tex.App.—Austin 1987,
writ denied). The existence of a fiduciary duty can give rise to a claim for unjust enrichment,
but is not required to establish such claim. Id. Even if this were the standard, the Movants have
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offered no evidence in support of their motion and have not conclusively established the lack of
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such duty.
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f. Is Jetall’s new quantum meruit claim barred, given that Jetall did not perform
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any services for which it expected compensation from Jefferson Smith?
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The Texas Supreme Court discussed quantum meruit in Vortt Exploration Co. v. Chevron
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USA, 787 S.W.2d 942 (Tex. 1990):
Quantum meruit is an equitable remedy
Bu which does not arise out of a
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contract, but is independent of it. Colbert v. Dallas Joint Stock Land Bank,
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129 Tex. 235, 102 S.W.2d 1031, 1034 (1937). Generally, a party may
recover under quantum meruit only when there is no express contract
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covering the services or materials furnished. Truly v. Austin, 744 S.W.2d
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934, 936 (Tex.1988). This remedy "is based upon the promise implied by
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law to pay for beneficial services rendered and knowingly accepted." Id.
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See Campbell v. Northwestern National Life Insurance Co., 573 S.W.2d
496, 498 (Tex.1978). Recovery in quantum meruit will be had when non
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payment for the services rendered would "result in an unjust enrichment to
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the party benefited by the work." City of Ingleside v. Stewart, 554 S.W.2d
939, 943 (Tex.Civ. App.—Corpus Christi 1977, writ ref'd n.r. e.).
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Recognizing that quantum meruit is founded on unjust enrichment, this
court set out the elements of a quantum meruit claim in Bashara v. Baptist
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Memorial Hospital System, 685 S.W.2d 307, 310 (Tex.1985). To recover
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under quantum meruit a claimant must prove that:
1) valuable services were rendered or materials furnished;
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2) for the person sought to be charged;
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3) which services and materials were accepted by the person sought to be
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charged, used and enjoyed by him;
4) under such circumstances as reasonably 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.
Id. (quoting City of Ingleside, 554 S.W.2d at 943).
Plaintiff, without evidence, is arguing that Jetall was gifting its Tenant services to Movants.
There is no evidence to support this argument. The declaration of Choudhri provides evidence
that Jetall provided a valuable service by referring the City of Houston to Movants’ building.
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The facts of the case state a claim for quantum meruit, and the movants have not conclusively
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established the lack of an element of that claim.
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g. Should Jetall’s lis pendens be cancelled, given that Jetall has no interest in the
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property made the subject of the lis pendens?
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Lis Pendens Last During Appeal
The last issue raised by the movants is
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that the Lis Pendens must be canceled. A lis
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pendens is automatically canceled on final judgment if the judgment is not appealed. However,
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if the judgment is appealed, the lis pendens continues. Group Purchases, Inc. v. Lance
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Investments, Inc., 685 S.W.2d 729, (Tex. App.—Dallas 1985, no writ). By definition, a lis
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pendens is a notice of a claim to property, and does not prevent a property from being sold. Jetall
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Companies, Inc., has the right to appeal this court’s decision and the
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lis pendens is notice of
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Jetall Companies, Inc’s claim.1
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PRAYER
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WHEREFORE, PREMISES CONSIDERED, Defendants pray that the motion be denied,
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and for such other and further relief, whether general or special, legal or equitable, as they may
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show themselves justly entitled.
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. Movants have not filed a motion pursuant to TEX. PROP.CODE ANN. § 12.0071 or complied with the
statutory requirements set forth therein.
Respectfully submitted,
The Kelley Law Firm
By: /s/ Lloyd E. Kelley_____
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Lloyd E. Kelley
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Texas Bar No. 11203180
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kelley@lloydekelley.com
The Kelley Law Firm
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2726 Bissonnet, Suite 240, PMB 12
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Houston, TX 77005
(281) 492-7766 (main)
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(281) 652-5973 (fax)
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____/s/James D. Pierce_________
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JAMES D. PIERCE
State Bar No. 15994500
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Comerica Bank Building
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One Sugar Creek Center Blvd., Suite 1080
Sugar land, Texas 77478-3560
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(713) 650-0150 office
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jim@jamespierce.com
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Attorneys for Jetall Companies, Inc. &
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Ali Choudhri
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CERTIFICATE OF SERVICE
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In compliance with Rules 21, 21a and 191 of the Texas Rules of Civil Procedure,
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December 23, 2019, this pleading was served upon all counsel through the court’s electronic
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filing system:
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_____/s/LLOYD E. KELLEY_________
Lloyd E. Kelley
Preview
12/23/2019 5:39 PM Marilyn Burgess - District Clerk Harris County Envelope No. 39484068 By: Joshua Bovell Filed: 12/23/2019 5:39 PM NO. 2018-69591 JEFFERSON SMITH, LLC, § IN THE DISTRICT COURT § Plaintiffs, § § vs. § k § ler JETALL COMPANIES, INC, AND § ALI CHOUDHRI § tC § ric Defendants Counterclaim § HARRIS COUNTY, TEXAS Third Party Plaintiffs, § ist § sD vs. § § es JOHN QUINLAN, JEFFERSON SMITH, LLC. § § rg Counterclaim and § Third Party Defendants. Bu § 215TH JUDICIAL DISTRICT n JETALL COMPANIES INC. AND ALI CHOUDHRI’S RESPONSE TO ily (THIRD) AMENDED MOTION FOR FINAL SUMMARY JUDGMENT ar M TO THE HONORABLE JUDGE OF SAID COURT: of Jetall Companies, Inc. and Ali Choudhri’ hereby file their Response to (Third) Amended e ffic Motion for Partial Summary Judgment as follows: yO SUMMARY JUDGMENT STANDARDS op C Traditional Motion for Summary Judgment ial Plaintiff asserts a traditional motion for summary judgment. Summary judgment is proper fic only when there is no genuine issue of material fact and movant is entitled to judgment as a matter of Un of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266, 268 (Tex.App.-El Paso 1995, writ denied); TEX.R. CIV. P. 166a(c). In determining whether a disputed material fact issue exists, we take as true evidence favorable to the nonmovant, and every reasonable inference must be indulged in favor of the nonmovant. Shah, 67 S.W.3d at 842 (citing American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997)); Wyatt, 908 S.W.2d at 268 (citing Nixon, 690 S.W.2d at 548-49). As stated in Science Spectrum v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997): k ler Of course, summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's tC theories of recovery, Gibbs v. General Motors Corp., 450 S.W.2d ric 827, 828 (Tex. 1970), or pleads and conclusively establishes each element of an affirmative defense. City of Houston v. Clear Creek ist Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). sD "The nonmovant has no burden to respond to a summary judgment motion unless the movant es conclusively establishes its cause of action or defense." Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d rg 217, 222-23 (Tex.1999). The movant offers no Bu evidence to support its motion for summary n judgment other that a copy of the pleading, and the court’s order saying the letter of intent is not ily ar enforceable, and a copy of a lis pendens. There is no evidence negating any element of any M Respondents’ fraud claims, or establishing an affirmative defense to the fraud claims. Without of e any evidence supporting the motion, even without a response the motion should be denied. Rhone- ffic Poulenc, Inc. v. Steel, 997 SW 2d at 222-23. yO No Evidence op C In a no-evidence motion for summary judgment, the party bearing the burden of proof ial alleges that adequate time for discovery has passed and that the non-movant still has no evidence fic to support one or more essential elements of a claim for which the non-movant would bear the of Un burden of proof at trial. See Stierwalt v. FFE Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex. App. — El Paso 2016, no pet.) (citing KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015)). "The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case."Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) quoting TEX.R.CIV.P. 166a(I) comment; Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc., 417 S.W.3d 531, 540 (Tex. App. — El Paso 2013, no pet.). Other than in the title, no where does the movants argue or mention a no evidence motion for summary judgment. A summary k ler judgment may not be granted on grounds not presented in the motion. Gish, 286 S.W.3d at 310. tC In this case, the movants list seven issues (a through g) none of which are no evidence issues. As ric such it is insufficient for a no evidence motion for summary judgment. ist sD A no evidence motion for summary judgment is essentially a motion for a pretrial directed es verdict. See TEX. R. CIV. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 rg (Tex. 2003); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. Bu denied). We review the evidence in the light most favorable to the nonmovant, "crediting evidence n ily favorable to [the nonmovant] if reasonable jurors could, and disregarding contrary evidence unless ar M reasonable jurors could not." Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d of 844, 848 (Tex. 2009); King Ranch, 118 S.W.3d at 751. e ffic OBJECTIONS TO SUMMARY JUDGMENT FORM O Grounds Not Stated or Ambiguous y op The supreme court has held that the grounds for summary judgment must be contained in C the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, ial fic 339- 341 (Tex.1993). McConnell requires that summary judgment grounds be clearly listed and of stated. Un There is nothing onerous or unreasonable about requiring the movant to state the grounds upon which he seeks to win a lawsuit without a trial. If the grounds are so obvious from the summary judgment proof, what is burdensome about requiring the movant to state them in the motion? Grounds may be stated concisely, without detail and argument. But they must at least be listed in the motion. Id., citing, Roberts v. Southwest Texas Methodist Hospital, 811 S.W.2d 141 (Tex.App.-San Antonio 1991, writ denied). The McConnell court further explained: If this court intended Rule 166a(c) to permit a summary judgment movant to place, or possibly hide, grounds for summary judgment k in a brief filed in support of the motion or in accompanying ler summary judgment evidence, the Rule could have easily provided: "The motion for summary judgment or the brief in support thereof tC or the summary judgment evidence shall state the specific grounds ric therefor." Rule 166a(c), however, does not so provide. "[W]e are not free to disregard... [the rule's] plain language. Nor should we revise ist the rule by opinion." Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d sD 911, 915 (Tex.1992).[4] Although Rule 166a(c) is an admittedly rigorous rule, it must be applied as written. es Id. at 340-441. The Defendant lists two issues in its summary judgment. The first argues that rg there can be no fraud claim if the promised Bu agreement is unenforceable. This argument is n contrary to Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143, 152-54 (Tex. ily ar 2015)(reliance damages recoverable even if contract is not enforceable). The second argues that M Respondents seek only benefit of the bargain damages. Again this is untrue, Jetall did not limit of e its damages to “benefit of the bargain” damages, and specifically alleged that it relied to its ffic detriment on the contract. The Declaration of Ali Choudhri establishes that in reliance upon the yO contract, Jetall placed a substantial tenant into the building that is the subject of the suit causing op C it reliance damages. ial Summary Judgment Evidence fic Respondents incorporate the Declaration of Ali Choudhri previously filed herein. of Un ARGUMENT The movants, again, have offered no evidence in support of their motion for summary judgment. Pleadings are not evidence. Lyons v. Lindsey Morden Claims Management, Inc., 985 SW 2d 86, 92 (Tex. App.—El Paso, 1998, no pet). The respondents’ pleadings do admit the lack of a fraud claim. A fraud claim can exist if a contract claim is not enforceable. Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143, 152-54 (Tex. 2015)(reliance damages recoverable even if contract is not enforceable); Samson Lone Star Ltd. P'ship v. Hooks, 497 SW3d 1, 19-23 (Tex. k ler App.-Houston [1st Dist.] 2016, pet. denied) (consequential damages and out of pocket tC damages available for fraud even if contract not enforceable). While Zorilla does not permit a ric ist benefit of the bargain damages, all other fraud damages are available. Id. In this case as set forth sD in the declaration of Ali Choudhri, Jetall suffered reliance and consequential damages as a result es of the movants conduct, and the movants were unjustly enriched. Hasse v. Glazner, 62 S.W.3d rg Bu 795, 800 (Tex. 2001(out of pocket includes "efforts concerning demographics, decor, potential n profits, and location.") Even so, it is the movants burden to conclusively establish the lack of ily damages, and it has made no attempt to do so. Accordingly, Summary Judgment must be denied. ar M Response to Issues of a. Does Jetall’s breach-of-contract counterclaim fail as a matter of law, given that e the Court has declared that the December 2017 LOI is unenforceable? ffic O The fact that the court found that the LOI is unenforceable does not in an of itself preclude y op other theories of recovery. E.g. . Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143, 152- C 54 (Tex. 2015)(reliance damages recoverable even if contract is not enforceable); Samson Lone ial Star Ltd. P'ship v. Hooks, 497 SW3d 1, 19-23 (Tex. App.-Houston [1st Dist.] 2016, pet. fic of denied) (consequential damages and out of pocket damages available for fraud even if contract Un not enforceable). Colbert v. Dallas Joint Stock Land Bank, 150 S.W.2d 771, 773(Tex. 1941) b. Are Jetall’s fraud claims barred, given that those claims seek the “benefit of the bargain” of the unenforceable December 2017 LOI? In its amended counterclaim Jetall seeks damages other than benefit of the bargain damages. The movants have not offered evidence that conclusively establishes that Jetall did not suffer such damages. Further the declaration of Ali Choudhri establishes non- benefit of k ler the bargain damages. tC ric c. Is Jetall’s statutory fraud claim barred, given that there is no enforceable ist contract for the sale of real estate? sD A claim for fraud can exist even in the absence of an enforceable contract. Zorrilla v. es Aypco Construction II, LLC, 469 S.W.3d 143, 152-54 (Tex. 2015)(reliance damages rg Bu recoverable even if contract is not enforceable); Samson Lone Star Ltd. P'ship v. Hooks, 497 n SW3d 1, 19-23 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) (consequential damages ily and out of pocket damages available for fraud even if contract not enforceable). ar M of d. Is Jetall’s new promissory estoppel claim barred, given that it could not have “reasonably relied” on an unenforceable contract e ffic Promissory estoppel is available as a cause of action to someone who has reasonably O relied to his detriment on an otherwise unenforceable promise. Wheeler v. White, 398 S.W.2d y op 93, 96-97 (Tex.1965)(finding promissory estoppel available in a claim where the contract C ial failed for indefiniteness). fic of e. Is Jetall’s new unjust enrichment claim barred, given that the parties did not Un have a fiduciary relationship? A party may recover under the unjust enrichment theory when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. See Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 560, 562 (1948); Austin v. Duval, 735 S.W.2d 647, 649 (Tex.App.—Austin 1987, writ denied). The existence of a fiduciary duty can give rise to a claim for unjust enrichment, but is not required to establish such claim. Id. Even if this were the standard, the Movants have k ler offered no evidence in support of their motion and have not conclusively established the lack of tC such duty. ric f. Is Jetall’s new quantum meruit claim barred, given that Jetall did not perform ist any services for which it expected compensation from Jefferson Smith? sD The Texas Supreme Court discussed quantum meruit in Vortt Exploration Co. v. Chevron es rg USA, 787 S.W.2d 942 (Tex. 1990): Quantum meruit is an equitable remedy Bu which does not arise out of a n contract, but is independent of it. Colbert v. Dallas Joint Stock Land Bank, ily 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937). Generally, a party may recover under quantum meruit only when there is no express contract ar covering the services or materials furnished. Truly v. Austin, 744 S.W.2d M 934, 936 (Tex.1988). This remedy "is based upon the promise implied by of law to pay for beneficial services rendered and knowingly accepted." Id. e See Campbell v. Northwestern National Life Insurance Co., 573 S.W.2d 496, 498 (Tex.1978). Recovery in quantum meruit will be had when non ffic payment for the services rendered would "result in an unjust enrichment to O the party benefited by the work." City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ. App.—Corpus Christi 1977, writ ref'd n.r. e.). y op Recognizing that quantum meruit is founded on unjust enrichment, this court set out the elements of a quantum meruit claim in Bashara v. Baptist C Memorial Hospital System, 685 S.W.2d 307, 310 (Tex.1985). To recover ial under quantum meruit a claimant must prove that: 1) valuable services were rendered or materials furnished; fic 2) for the person sought to be charged; of 3) which services and materials were accepted by the person sought to be Un charged, used and enjoyed by him; 4) under such circumstances as reasonably 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. Id. (quoting City of Ingleside, 554 S.W.2d at 943). Plaintiff, without evidence, is arguing that Jetall was gifting its Tenant services to Movants. There is no evidence to support this argument. The declaration of Choudhri provides evidence that Jetall provided a valuable service by referring the City of Houston to Movants’ building. k ler The facts of the case state a claim for quantum meruit, and the movants have not conclusively tC established the lack of an element of that claim. ric ist g. Should Jetall’s lis pendens be cancelled, given that Jetall has no interest in the sD property made the subject of the lis pendens? es rg Lis Pendens Last During Appeal The last issue raised by the movants is Bu that the Lis Pendens must be canceled. A lis n ily pendens is automatically canceled on final judgment if the judgment is not appealed. However, ar if the judgment is appealed, the lis pendens continues. Group Purchases, Inc. v. Lance M of Investments, Inc., 685 S.W.2d 729, (Tex. App.—Dallas 1985, no writ). By definition, a lis e pendens is a notice of a claim to property, and does not prevent a property from being sold. Jetall ffic Companies, Inc., has the right to appeal this court’s decision and the O lis pendens is notice of y Jetall Companies, Inc’s claim.1 op C PRAYER ial WHEREFORE, PREMISES CONSIDERED, Defendants pray that the motion be denied, fic of and for such other and further relief, whether general or special, legal or equitable, as they may Un show themselves justly entitled. 1 . Movants have not filed a motion pursuant to TEX. PROP.CODE ANN. § 12.0071 or complied with the statutory requirements set forth therein. Respectfully submitted, The Kelley Law Firm By: /s/ Lloyd E. Kelley_____ k Lloyd E. Kelley ler Texas Bar No. 11203180 tC kelley@lloydekelley.com The Kelley Law Firm ric 2726 Bissonnet, Suite 240, PMB 12 ist Houston, TX 77005 (281) 492-7766 (main) sD (281) 652-5973 (fax) es rg ____/s/James D. Pierce_________ Bu JAMES D. PIERCE State Bar No. 15994500 n Comerica Bank Building ily One Sugar Creek Center Blvd., Suite 1080 Sugar land, Texas 77478-3560 ar (713) 650-0150 office M jim@jamespierce.com of Attorneys for Jetall Companies, Inc. & e Ali Choudhri ffic O CERTIFICATE OF SERVICE y op In compliance with Rules 21, 21a and 191 of the Texas Rules of Civil Procedure, C December 23, 2019, this pleading was served upon all counsel through the court’s electronic ial fic filing system: of Un _____/s/LLOYD E. KELLEY_________ Lloyd E. Kelley