Brandon Rockett
11902 Highland Oaks Trail
Austin, TX 78759
Phone | Fax
Defendant in pro per
in the county court at law no. 1
travis county, texas
| tom hoskins,Plaintiff,vs.brandon rockett and wyatt giles, d/b/a rock solid construction,Defendant | Case No.: Numberbrandon rockett’s motion for summary judgment |
NOTICE OF BRANDON ROCKETT’S MOTION FOR SUMMARY JUDGMENT
You are notified that on the ___ day of _____________________, 2021, at _______ (am/pm), or as soon thereafter as Brandon Rockett can be heard, in Courtroom ___ of the County Court at Law No. 1, Travis County, Texas, located at _____________________________________________, Brandon Rockett will bring on for hearing his Motion for Summary Judgment for the reasons stated in the attached Motion.
Dated this ____ day of ______________________, 2021.
Respectfully Submitted,
___________________________________
Brandon Rockett,
Defendant in pro per
Brandon Rockett
11902 Highland Oaks Trail
Austin, TX 78759
Phone | Fax
Defendant in pro per
in the county court at law no. 1
travis county, texas
| tom hoskins,Plaintiff,vs.brandon rockett and wyatt giles, d/b/a rock solid construction,Defendant | Case No.: Numberbrandon rockett’s motion for summary judgment |
BRANDON ROCKETT’S MOTION FOR SUMMARY JUDGMENT
NOW COMES Brandon Rockett, Defendant, and files this Motion for Summary Judgment against Plaintiff, Tom Hoskins, and for cause would show this Honorable Court as follows:
- “We review the trial court’s grant of summary judgment de novo.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
- “A traditional motion for summary judgment requires the moving party to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); Provident Life, 128 S.W.3d at 215–16.
- “If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of 5 material fact precluding summary judgment.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Brandon Rockett is going to prove that there exists no genuine issue of material fact.
- Plaintiff alleges that Brandon Rockett violated the Texas Deceptive Trade Practices Act, TEX. BUS. & COMM. C. § 17.41, et seq., breached the contract between Plaintiff and Defendant, was negligent in his work, and engaged in fraudulent activity.
- Brandon Rockett performed work on Plaintiff’s property and did exactly as it was agreed upon in the contract. It is untenable for Plaintiff to claim that Brandon Rockett was deceptive when the terms in the contract were agreed upon by both parties and executed by both Parties.
- When Brandon Rockett performed milling work on Plaintiff’s floor using material that was the same species as Plaintiff’s floor, Plaintiff was completely satisfied with Brandon’s work. had there been an issue with the work performed by Brandon, Plaintiff would have raised it and Brandon would have rectified it.
- Plaintiff asked Brandon Rockett to apply the matte finish on the whole floor because he had liked the matte finish on the part that Brandon was initially contracted to repair. The quality of work performed by Brandon is the quality he had promised. Plaintiff liked it so much that he requested Brandon to do it on the whole floor and commended him for it.
- Plaintiff’s claim of violation of the Texas Deceptive Trade Practices Act fails.
- Plaintiff claims that Brandon Rockett breached the terms of the contract by failing to perform the work as agreed. Brandon’s work was satisfactory to Plaintiff who deemed it fit not to pay Brandon for work done. In failing to pay Brandon, Plaintiff breached the terms of the contract.
- Plaintiff’s breach of contract claim fails because he failed to fulfil his obligation in the contract by failing to pay Brandon for proper work done that was satisfactory in the eyes of Plaintiff.
- “The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach.” See Hussong v. Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App.— Houston [1st Dist.] 1995, no writ).
- Plaintiff failed to pay Defendant for work done, in contravention of the contract between Plaintiff and Defendant. Plaintiff’s breach of contract claim fails because it does not meet the second element of breach of contract, performance or tendered performance by the plaintiff.
- Plaintiff claims that Brandon was negligent while performing work on Plaintiff’s property, and that there was damage as a result of his negligence. The alleged damage by Plaintiff was a result of contributory negligence through the actions of Plaintiff and his family.
- In Parker v. Highland Park, Inc., 565 SW 2d 512 (1978), the Texas Supreme Court held as follows: “Contributory negligence is defined in the case sub judice as the failure to use ordinary care to do that which a person of ordinary prudence would have done under the same or similar circumstances.” After Brandon completed work on the floor, it was reasonable for Plaintiff to let it dry completely. However, Plaintiff and his family opened the doors and even used air conditioning, which prevented the floor from drying completely.
- In good faith, Brandon Rockett repaired the floor again.
- Plaintiff brought a claim of fraud against Brandon Rockett, which he has failed to avail facts to prove. Plaintiff has resorted to a fishing expedition to try and gather facts that support his claim, which do not exist. In doing so, Plaintiff has opted for discovery in the manner of interrogatories, while disregarding the rules governing interrogatories in Texas.
- Tex. R. Civ. P. 197.1 provides in part as follows: “An interrogatory may inquire whether a party makes a specific legal or factual contention and may ask the responding party to state the legal theories and to describe in general the factual bases for the party’s claims or defenses, but interrogatories may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial.” The interrogatories filed by Plaintiff require Brandon Rockett to avail all documents he intends to use during the trial.
Defendant Brandon Rockett has fulfilled the burden of proving that there is no genuine issue as to any material fact alleged by Plaintiff. REASONS WHEREFORE, Brandon Rockett respectfully requests this Honorable Court to grant this Motion for Summary Judgment in his favor.
Dated this ____ day of ______________________, 2021.
Respectfully Submitted,
___________________________________
Brandon Rockett,
Defendant in pro per
VERIFICATION
I, Brandon Rockett, being duly sworn depose and say that I am a Defendant in the above-entitled action, that I have read the foregoing Motion for Summary Judgment and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of ___________________, 2021.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
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