County properly supported summary judgment affidavits to establish breach of contract claim against garbage franchise holder
Hernandez v County of Zapata, 04-19-00507-CV (Tex. App. – San Antonino, July 8, 2020).
This is a breach of contract/garbage collection case where the San Antonio Court of Appeals upheld an order granting the County’s summary judgment against Hernandez.
The County of Zapata and Hernandez entered into a one-year written contract, granting Hernandez an exclusive franchise to provide garbage collection services to Zapata County residents. Hernandez agreed to pay Zapata a percentage of the sums he collected from Zapata County residents for his garbage collection services. When a dispute arose, the County of Zapata sued Hernandez for breach of contract. The County filed a traditional motion for summary judgment, which was granted. Hernandez appealed. [Comment: this opinion is helpful mainly to litigators who deal with standards for admission of evidence].
A party opposing a motion for summary judgment may file a response “not later than seven days prior to the day of” the summary judgment hearing. Hernandez failed to timely file a response and failed to establish the trial court abused its discretion in denying his motion to file a late response. Hernandez’s motion was unsupported by any probative evidence establishing good cause for the failure. The lack of factual support and explanation regarding counsel’s alleged mistakes, “leav[es] the trial court without any means of determining whether an excusable accident or mistake had in fact occurred.”
In comparison, the County’s affidavits in support of its summary judgment were properly supported and included the underlying facts to justify the conclusions asserted in the affidavits. For example, the affidavit of the County auditor provided support by stating 1) His primary duties are to oversee financial record-keeping for the county and to assure that all expenditures comply with the county budget, 2) He has continuous access to all county books and financial records and conducts a detailed review of all county financial operations, 3) He has general oversight of all books and records of all county officials and is charged with strictly enforcing laws governing county finance, 4) After reviewing bank statements from Hernandez’s business and comparing with county records and the cross-checking corresponding franchise fee percentage owed by Hernandez pursuant to the contract, that the amount Hernandez owed Zapata was $361,439.07. The trial court did not abuse its discretion in denying Hernandez’s objections to the County’s affidavits.
The trial court also did not abuse its discretion in overruling the objection to bank statements based on hearsay. Under the Texas Rules of Evidence, a statement by an opposing party is not hearsay if the statement is offered against the opposing party and “is one the party manifested that it adopted or believed to be true.” Hernandez admitted that he produced the bank statements in discovery. By producing the bank statements and by adopting the bank statements as his own, Hernandez manifested an adoption or belief in their truth. The evidence is sufficient to conclusively establish the existence of a valid contract, that Zapata performed under the contract, and that Hernandez breached the agreement. Aside from the first-year payment, it is undisputed Hernandez did not pay Zapata the contracted percentages of the total gross receipts for the years 2011 to 2016. As a result, the trial court was within its discretion to grant the summary judgment. Finally, the record supports an award of attorney’s fees.
If you would like to read this opinion click here. The panel consists of Justices Martinez, Rios and Watkins. Opinion by Justice Martinez.
