PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

by | Oct 9, 2021 | Motions

CAUSE NO. XXX

 

XXX

Plaintiff, § JUDICIAL DISTRICT

XXXX

XXXX

Defendant §

 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

The Plaintiff, P&Z Logistics, Inc. (“the Plaintiff”) files this motion for summary judgment on all its claims against XXX Amtech Inc. (“the Defendant”), as follows:

  • SUMMARY OF MOTION

The Plaintiff’s case is founded on the Defendant’s breach of contract. The Plaintiff avers that the Defendant failed to perform its contractual obligation to pay the agreed-upon service price of $53,100.00 for Plaintiff’s construction drainage service performed at the job site located at Highway 290 and Barker Cypress (“the construction”).

That the Plaintiff and the Defendant entered into a contract in relation to the construction aforesaid is beyond dispute. The Defendant admits this fact in its response dated 4th June 2017. The contract stipulated that the Plaintiff would provide services for Defendant for consideration at the rate of $150/foot for 354 total feet. The Defendant was represented by Oscar Chavez, a general contractor, who has acted in the past as an authorized agent for USA Amtech Inc.

Despite the Plaintiff’s diligent performance of all its obligations under the contract, the Defendant has refused and or failed to remit to the sum of $53,100.00, which fell due and owing fifteen days after the Plaintiff issued its invoice. The Plaintiff’s demands for payment have not borne any fruit, hence the instant lawsuit. 

Upon being served with the Plaintiff’s original petition and request for disclosures, the Defendant filed a response in which it vindicated most of the Plaintiff’s averments by:

  1. Admitting that it has done business with the Plaintiff in the past;
  2. The Defendant used the materials/services  of the Plaintiff for a project located at or near US Highway 290 and Barker Cypress on or near May 2017;
  3. Admitting that Oscar Chavez was its contractor at the material times; 
  4. Admitting that the agreed contract sum was $53,100.00;

The foregoing additions alone would only confirm the veracity and correctness of the Plaintiff’s claims. However, the Defendant’s proceeds to present mere denials to the allegations that the contract sum was due and payable within 15 days; and that the sum was not remitted to the Plaintiff. In a feeble attempt to back the said mere denials, the Defendant avers that the agreement was that the sum would be paid upon job completion and acceptance by AT&T. The Defendant makes a more interesting yet bare response that “[it] believes [it] may have a partial payment to the outstanding debt.”

The series of Defendant’s bare and mere denials set out above lead to one conclusion: that the Defendant has not raised any triable issues that need to be tried. No evidence has been brought forth to rebut the Plaintiff’s claims. As such, the Plaintiff’s claims remain uncontroverted and it is only fair and in the interests of justice that the same by upheld by this Honourable Court. 

  • STANDARD OF REVIEW

The standard of review applicable on a motion for summary judgment such as the one presented by the Plaintiff is now well settled. Mainly, a Plaintiff must conclusively prove all the key and essential facts in support of its claim as was held in the leading case of MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). 

In the same vein, the Plaintiff also bears the burden to establish that there existed no genuine issues of fact thereby entitling it to judgment as a matter of law. See, City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). 

Once the Plaintiff has sufficiently demonstrated the foregoing elements, it becomes entitled to summary judgment and such judgment provides speedy and means of disposing lawsuits where the facts are straightforward and the defence has not presented any triable issues, as is the case here.

  • ARGUMENT

The Plaintiff has established breach of contract by the Defendant 

The evidence adduced by the Plaintiff, in form of an invoice, backs the Plaintiff’s contention that indeed, the Defendant owes the sum of $53,100.00 claimed. The Defendant has not disputed that this was the agreed contract sum. Instead, it makes an absurd and preposterous argument that “[it] believes [it] may have a partial payment to the outstanding debt.” What is the possibility that the Defendant actually made a partial payment as claimant? The Plaintiff respectfully submits that such a possibility should be entertained by this Honourable Court because no evidence has been produced to demonstrate any partial payment. There is no conceivable reason for Defendant’s bare belief to supersede or even be taken as a rebuttal to the Plaintiff’s claim when the latter is founded on cogent evidence. 

A further argument made by the Defendant is that the agreement was that the sum would be paid upon job completion and acceptance by AT&T. This, the Plaintiff submits, does not raise any triable issue as it is flagrantly baseless. Even if the Plaintiff’s claim that contract sums were payable within 15 days were to be considered untrue, that would not change the fact that the sum had not been paid as at the time this suit was filed and has not been paid to date yet it is common fact that the construction was completed a long time ago. The Defendant’s attempt to use AT&T to escape breach should not be allowed because AT&T was not a party. 

Be that as it may, the Defendant accepted the services provided by Plaintiff by accepting the job completion and at that point, the Defendant had reasonable notice that the Plaintiff expected compensation for the services.

In the circumstances, therefore, the Plaintiff submits that the Defendant blatantly and without reasonable cause breached the agreement between it and the Plaintiff. 

The Plaintiff is entitled to recover the contract sum from the Defendant

Having established breach of contract and indebtedness on the part of the Defendant as well as the fact that the Plaintiff performed its obligations, it follows that the Plaintiff may recover the contract sum. The Defendant has not proved any part payment and therefore, this Court should allow the prayer for the sum of $53,100.00

  • CONCLUSION

As demonstrated above, the Defendant’s response does not disclose any genuine issues upon which a trial can be held. The Plaintiff has failed to rebut the key and elementary facts leading to the breach and upon which the suit is founded. 

WHEREFORE, for the foregoing reasons, the Plaintiff respectfully requests that that Court grant its Motion and enter:

  1. Final Judgment on its claims against the Defendant;
  2. Judgment for the Plaintiff for attorney’s fees and court costs;
  3. Judgment interest at the highest rate permitted by law;
  4. Any further or other relief that the Court deems fit and just to grant. 

Respectfully submitted,

By_______________________________

Xxxxx,

P&Z Logistics, Inc , the Plaintiff.

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Motion for Summary Judgment was served upon the following counsel of record as indicated: 

Ted A. Cox

Attorneys at law 

XXX

XXXX

 

By: _____________________

 

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