Charles Louis Hogan, Jr. v. Kenneth Everett

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-25-00555-CV

Charles Louis HOGAN, Jr.,
Appellant

v.

Kenneth EVERETT,
Appellee

From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 24-08-0604-CVA
Honorable Bob Brendel, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Irene Rios, Justice
Lori I. Valenzuela, Justice
Velia J. Meza, Justice

Delivered and Filed: June 3, 2026

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Appellant Charles Louis Hogan, Jr. sold a tract of land to appellee Kenneth Everett. As

part of the transaction, Hogan alleges he and Everett had an oral agreement that Everett would

deed a smaller tract of land back to Hogan, which Everett denies. Thus, Hogan sued Everett,

alleging breach of contract, fraud, and unjust enrichment, and sought a declaratory judgment. The

trial court granted summary judgment in favor of Everett on all of Hogan’s claims.
04-25-00555-CV

We hold that the trial court properly granted summary judgment in favor of Everett on

Hogan’s breach of contract claim. However, we find Everett’s summary judgment evidence

insufficient to support a judgment as a matter of law in his favor on the remainder of Hogan’s

claims. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with

this opinion.

BACKGROUND

In August 2020, Hogan sold Everett a 136-acre tract of land for approximately $150,000.

Hogan signed a warranty deed conveying the 136-acre tract to Everett. Besides access to an

easement associated with the 136-acre tract, no other representations are made in the deed.

Four years later, in August 2024, Hogan sued Everett, alleging that Everett breached an

oral agreement that, as part of the August 2020 sale, Everett would deed ownership of a 66-acre

tract of land to Hogan. In his petition, Hogan claimed that the $150,000 was for “the fair market

value of 70 acres,” and that Everett stated he would deed the 66-acre tract to Hogan after his

divorce as the remaining part of the consideration for the August 2020 sale, but he had not done

so. Hogan asserted claims for breach of contract, unjust enrichment, and fraud and sought a

declaratory judgment setting aside the August 2020 sale.

Everett answered and filed a no-evidence motion for summary judgment. In support of his

motion, Everett attached the warranty deed for the August 2020 sale, a check representing the

payment for the August 2020 sale, and his own affidavit. Hogan did not file a timely response to

Everett’s motion. However, after an agreed continuance and extension to file a response, Hogan

filed a response in which he generally argued that a genuine issue of material fact existed for each

of his claims. In support of his response, Hogan attached the same general warranty deed for the

August 2020 sale, a land survey of the 136-acre tract, his own affidavit, and a link to an audio

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recording allegedly “confirming the existence and terms of the [oral] agreement.” Notably,

Hogan’s attached affidavit consisted of two pages. The first page contained enumerated paragraphs

one through six, with the second half of paragraph six missing. The second page contained a single

paragraph numbered fourteen.

The trial court held a hearing on Everett’s motion. During the hearing, the trial court

inquired into why Hogan’s affidavit made the sequential jump from paragraph number six to

paragraph number fourteen. Hogan’s counsel explained that he had been out of the office and that

a page of Hogan’s affidavit, page two containing paragraphs seven through thirteen, had

mistakenly been omitted when filing the response. The trial court stated that the affidavit, as is,

did not serve as a proper predicate for the audio recording and did not, on its own, create a genuine

issue of material fact. However, over Everett’s objection, the trial court granted Hogan leave to

file the missing page by the end of the day.

Shortly after the hearing, Hogan filed an amended response to Everett’s motion; however,

the amended response included the same incomplete affidavit. Addressing the incomplete

affidavit, the trial court’s order recites the following:

During arguments, the court discovered that the affidavit of Hogan attached
as summary judgement [sic] evidence was missing part of paragraph 6 and all of
paragraphs 7 through 13. Everett objected to the inclusion of any further summary
judgement [sic] evidence since Everett had already agreed to allow late filed
summary judgment evidence. The court overruled the objection of Everett and
granted leave of court for Hogan to file the complete affidavit of Hogan for the
court’s consideration before 5:00 p.m. on May 7, 2025 because it appears the
missing paragraphs were a clerical error. The court also stated that the court had
heard the arguments of the parties and will make a ruling based on the summary
judgment evidence once the completed affidavit is filed.

On May 7, 2025 at 11:05 a.m., Hogan filed an amended response to the
motion for summary judgment. However, the amended response was still missing
part of paragraph 6 and all of paragraphs 7 through 13 of Hogan’s affidavit. This
court emailed Hogan’s attorney and followed up with a phone call to an assistant at
Hogan’s attorney’s office and an additional email to alert Hogan of the paragraphs

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still missing from the response. On the morning of May 8, 2025 and the morning
of May 9, 2025, this court took judicial notice of its file and did not find any
additional responses filed by Hogan after May 7, 2025 at 11:05 a.m. This court also
contacted the District Clerk who stated that there were no pending pleadings in the
court’s efile system.

The trial court’s order goes on to grant summary judgment in favor of Everett. 1 After the

trial court granted summary judgment, Hogan filed a “motion to reinstate,” in which he attached

his complete affidavit—which included page two—and argued that he had attempted to file the

complete affidavit after the hearing, but that the district clerk rejected the filing. The record does

not show that the trial court ruled on the motion. Hogan appealed.

HOGAN’S APPEAL

On appeal, Hogan does not challenge the trial court’s version of events regarding the filing

of Hogan’s affidavit and amended response. Rather, in four issues that we review as two, Hogan

argues (1) the trial court erred in excluding his complete affidavit and (2) that Everett’s no-

evidence motion for summary judgment failed to satisfy Texas Rule of Civil Procedure 166a(i).

ISSUE ONE: HOGAN’S AFFIDAVIT

We first address Hogan’s contention that the trial court erred in failing to consider his

complete affidavit. We review the trial court’s decision under an abuse of discretion standard.

Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). “A trial court

abuses its discretion by acting arbitrarily and unreasonably or misapplying the law to the

established facts of the case.” Huynh v. Blanchard, 694 S.W.3d 648, 674 (Tex. 2024).

Hogan did not file a timely response to Everett’s motion for summary judgment. However,

by agreement of the parties, Hogan filed a late response and attached his incomplete affidavit. And,

1
Hogan also attached additional evidence to his amended response filed after the hearing. Because the trial court only
granted leave to file the complete affidavit, it excluded the additional evidence attached to Hogan’s amended response.
Hogan does not challenge the trial court’s exclusion of this additional evidence on appeal.

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although the trial court granted leave for Hogan to file his complete affidavit by the end of the day,

the record before the trial court shows that Hogan did not do so.

On appeal, Hogan argues the trial court abused its discretion by failing to consider his

complete affidavit because the trial court had already granted leave to file his complete affidavit.

While the trial court granted leave to file a complete affidavit, the affidavit filed by Hogan after

the hearing, with his amended response, still contained the same deficiencies as the original

affidavit—i.e., it was missing page two. The trial court set a deadline for the expiration of Hogan’s

leave to file the complete affidavit, and Hogan cites no authority holding that it lacked discretion

to do so. Because Hogan did not comply with that deadline, the record does not support his

assertion that he had leave of court to file the remainder of the affidavit, nor does it mandate a

conclusion that the trial court was required to consider the untimely filed portions of the affidavit.

Based on the trial court’s sequence of events as described in its order, which Hogan does not

challenge on appeal, we hold that the trial court did not err in exercising its discretion to ignore

the late-filed portions of Hogan’s affidavit. See Huynh, 694 S.W.3d at 674; see also In re Est. of

Blankenship, 392 S.W.3d 249, 258 (Tex. App.—San Antonio 2012, no pet.) (“We must uphold the

trial court’s decision to exclude summary judgment evidence if there is any legitimate basis for its

ruling.”).

Hogan additionally argues that the trial court erred in granting summary judgment in favor

of Everett because his complete affidavit raised a genuine issue of material fact, and because his

complete affidavit served as the evidentiary predicate for the audio recording, which he attached

as evidence in his response. However, these two arguments are premised on statements made in

Hogan’s complete affidavit. Because we find the trial court acted within its discretion in not

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considering Hogan’s complete affidavit when rendering summary judgment, we need not address

these arguments. See TEX. R. APP. P. 47.1.

ISSUE TWO: SUMMARY JUDGMENT

Everett moved for summary judgment on all of Hogan’s claims, which were: breach of

contract, fraud, unjust enrichment, and a request for a declaratory judgment. 2 For the reasons

below, we hold that the trial court properly granted no-evidence summary judgment in favor of

Everett on Hogan’s breach of contract claim. However, as to Hogan’s remaining claims, we hold

that Everett’s no-evidence motion fails to meet the specificity requirements of Rule 166a(i) and

his evidence fails to establish that he is entitled to summary judgment as a matter of law.

Standard of Review

“We review the trial court’s summary judgment de novo.” Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). While conducting our de novo review, we scrutinize

the record “in the light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.

2005).

Because Everett attached and relied on evidence in support of his motion for summary

judgment, his motion is regarded as a hybrid motion for summary judgment. See Binur v. Jacobo,

135 S.W.3d 646, 650–51 (Tex. 2004); Coleman v. Prospere, 510 S.W.3d 516, 518–19 (Tex.

App.—Dallas 2014, no pet.) (“The substance of the motion and not its form or the attachment of

evidence determines whether the motion is a no-evidence, traditional, or combined motion.”). As

2
Hogan’s petition additionally sought recovery on a cause of action for specific performance. However, specific
performance is not a cause of action, but rather a remedy for breach of contract. See White Knight Dev., LLC v.
Simmons, 718 S.W.3d 203, 209 (Tex. 2025) (citations and internal quotation marks omitted) (“Specific performance
is an equitable remedy that may be awarded for breach of contract as an alternative to legal damages. Specific
performance is not a separate cause of action but rather a substitute for monetary damages when such damages would
be inadequate.”); Marx v. FDP, LP, 474 S.W.3d 368, 374 (Tex. App.—San Antonio 2015, pet. denied).

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a hybrid motion, we will review the trial court’s decision under the no-evidence standard, and only

if a point fails appellate review under this standard, will we move to review it under the traditional

standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

Under the no-evidence standard, “the nonmovant must produce at least a scintilla of

evidence raising a genuine issue of material fact as to the challenged elements.” KMS Retail

Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). When the evidence produced by

the non-movant “is so weak as to do no more than create a mere surmise or suspicion of a fact,”

then such evidence is less than a scintilla. Id.

Under the traditional standard, “the party moving for summary judgment bears the burden

to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter

of law.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). “The

evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their

conclusions in light of all of the summary-judgment evidence.” Transcon. Ins. Co. v. Briggs Equip.

Tr., 321 S.W.3d 685, 692 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

A. Specificity of Everett’s No-Evidence Motion for Summary Judgment

Hogan argues Everett’s no-evidence motion for summary judgment failed to meet the

specificity requirements of Texas Rule of Civil Procedure 166(a)(i). To meet the specificity

requirements of Rule 166a(i), a no-evidence motion for summary judgment “must allege that there

is no evidence of an essential element of the adverse party’s claim.” Sw. Elec. Power Co. v. Grant,

73 S.W.3d 211, 215 (Tex. 2002). The motion cannot merely allege that the nonmovant cannot

prove a claim; rather, the motion must be specific in the elements the movant is challenging. TEX.

R. CIV. P. 166a(i); 3 Bean v. Reynolds Realty Grp., Inc., 192 S.W.3d 856, 859 (Tex. App.—

3
The Texas Supreme Court amended Texas Rule of Civil Procedure 166a effective March 1, 2026. The citations to
the rule that appear in this opinion refer to the version that was in effect at the time this lawsuit was filed.

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Texarkana 2006, no pet.) (“If the [no-evidence] motion is not specific in challenging a particular

element of a claim or defense, it is insufficient as a matter of law.”); Meru v. Huerta, 136 S.W.3d

383, 387 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.) (“Rule 166a(i) does not authorize

conclusory motions or general no-evidence challenges to an opponent’s case.”).

Addressing Hogan’s claim that Everett breached the alleged oral contract for the transfer

of the 66-acre tract, Everett’s motion recited the elements Hogan bore the burden to satisfy to

prevail, which are “(1) a valid contract; (2) the plaintiff performed or tendered performance; (3)

the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach.”

Brooks v. Excellence Mortg., Ltd., 486 S.W.3d 29, 36 (Tex. App.—San Antonio 2015, pet. denied)

(citations and internal quotation marks omitted); see also BoRain Cap., LLC v. Hashmi, 533

S.W.3d 32, 36 (Tex. App.—San Antonio 2017, pet. denied) (reciting the elements of a valid

contract as “(1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a

meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the

contract with the intent that it be mutual and binding”).

Everett’s motion then alleges that Hogan cannot come forward with a scintilla of evidence

raising a genuine issue of material fact on the element of a valid oral contract between Hogan and

Everett. Everett’s motion was therefore sufficient to assert a no-evidence challenge to that required

element of Hogan’s claim. Hogan contends his complete affidavit raises a genuine issue of material

fact; however, we hold the trial court acted within its discretion by not considering the complete

affidavit because Hogan’s incomplete affidavit offers, at best, a mere surmise or suspicion of fact

on this challenged element. For these reasons, we hold Everett’s motion sufficiently met the

requirements of Rule 166a(i) and that Hogan failed to produce evidence raising a genuine issue of

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material fact. TEX. R. CIV. P. 166a(i); KMS Retail Rowlett, LP, 593 S.W.3d at 181. Therefore, we

affirm the trial court’s summary judgment in favor of Everett on Hogan’s breach of contract claim. 4

While Everett’s motion was sufficiently specific to move the summary judgment burden

to Hogan on his breach of contract claim, the same is not true for the remainder of Hogan’s claims.

That is, aside from Everett’s challenge to Hogan’s breach of contract claim, his motion does not

state the elements of Hogan’s remaining claims, nor does his motion specify which elements of

Hogan’s claims he contends Hogan cannot substantiate with evidence. See TEX. R. CIV. P. 166a(i);

Bean, 192 S.W.3d at 859; Meru, 136 S.W.3d at 387. Rather, after generally alleging his version of

the events, Everett’s motion merely alleges Hogan “has produced no evidence of any kind to

support his additional claims” of fraud, unjust enrichment, and a request for a declaratory

judgment. This is the precise kind of “conclusory” or “general no-evidence” challenge which the

rule is written to prohibit. See TEX. R. CIV. P. 166a(i), cmt. to 1997 change; Callaghan Ranch, Ltd.

v. Killam, 53 S.W.3d 1, 3 (Tex. App.—San Antonio 2000, pet. denied); cf. White Rock Expl., Inc.

v. Freeman Mills, P.C., 607 S.W.3d 429, 438–39 (Tex. App.—Texarkana 2020, no pet.) (holding

movant’s motion for no-evidence summary judgment met the specificity requirements where the

motion “included six paragraphs attacking the lack of evidence for the elements of the claims

asserted” and “stated the elements of each claim and then stated the specific elements being

challenged”). Accordingly, Everett’s motion fails to meet the specificity requirements for his

4
Although the record of the hearing suggests, and Hogan avers, that the trial court may have considered the parol
evidence rule when deciding whether to grant summary judgment on Hogan’s breach of contract claim, the trial court’s
written order does not contain any indication that it relied on the parol evidence rule as a ground for granting summary
judgment. See Gonzales v. Thorndale Coop. Gin & Grain Co., 578 S.W.3d 655, 657 (Tex. App.—Houston [14th Dist.]
2019, no pet.) (“Longstanding case law only permits the appellate court to look to the trial court’s formal summary-
judgment order to determine the trial court’s grounds, if any, for its ruling.”); Artuso v. Town of Trophy Club, No. 02-
20-00377-CV, 2021 WL 1919634, at *4 (Tex. App.—Fort Worth May 13, 2021, no pet.) (mem. op.) (“[W]e are
constrained to look only to the order granting summary judgment to determine the trial court’s reasons for ruling so
that litigants and appellate courts have a single place to look to determine why the trial court granted summary
judgment.”) (internal quotation marks, alterations, and citation omitted).

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attack on Hogan’s fraud claim, unjust enrichment claim, and request for a declaratory judgment

and was therefore insufficient as a matter of law to support a no-evidence summary judgment on

those claims. See Callaghan, 53 S.W.3d at 3–4.

B. Was Traditional Summary Judgment Proper on Hogan’s Remaining Claims?

Although Everett’s motion was insufficient to meet the specificity requirements for no-

evidence summary judgment, because his motion was a hybrid motion, we will still affirm the

summary judgment if Everett carried his burden under the traditional standard. See Ridgway, 135

S.W.3d at 600; Knott, 128 S.W.3d at 216.

To prevail on his fraud claim at trial, Hogan needed to prove that “(1) [Everett] made a

material representation that was false; (2) [Everett] knew the representation was false or made it

recklessly as a positive assertion without any knowledge of its truth; (3) [Everett] intended to

induce [Hogan] to act upon the representation; and (4) [Hogan] actually and justifiably relied upon

the representation and thereby suffered injury.” Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co.,

51 S.W.3d 573, 577 (Tex. 2001). Because Everett’s motion did not meet the specificity standards

of a no-evidence motion, under the traditional standard, he was required to bring forth evidence to

disprove at least one of the aforementioned elements as a matter of law. Everett failed to do so.

The summary judgment record consists of the warranty deed, check for payment, survey

of the 136-acre tract, Everett’s affidavit, and Hogan’s incomplete affidavit. When viewed in light

most favorable to Hogan as the nonmovant, this evidence does not establish that Everett has

conclusively disproved any of the above listed fraud elements as a matter of law. Therefore, the

trial court erred in granting summary judgment in favor of Everett on Hogan’s fraud claim.

In the same vein, Everett is not entitled to summary judgment on Hogan’s unjust

enrichment claim. “Unjust enrichment is not an independent cause of action, but is a theory of

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recovery that allows recovery to a party when one person has obtained a benefit from another by

fraud, duress, or the taking of an undue advantage.” Sharp v. Mosier, No. 04-11-00449-CV, 2012

WL 2021390, at *4 (Tex. App.—San Antonio June 6, 2012, no pet.) (mem. op.) (internal quotation

marks omitted). “Unjust enrichment demands restitution when a party receiving property or

benefits would be unjustly enriched if it were permitted to retain the property or benefits at the

expense of another.” Id. (internal quotation marks omitted). “A party may recover under a theory

of unjust enrichment when the profit received is unjust under the principles of equity and the

defendant had some connection with the alleged wrongdoing.” Id. None of the summary judgment

evidence conclusively disproves any element of what Hogan would be required to prove to be

successful on this claim.

And finally, summary judgment on Hogan’s declaratory judgment action was in error.

Hogan seeks a judgment declaring setting aside the sale of the 136-acre tract because “the contract

is void and unenforceable due to the failure of consideration, fraudulent inducement, and the

impossibility of performance as to the full agreement between the parties.” Everett failed to bring

forth any summary judgment evidence to support his contention that he is entitled to summary

judgment as a matter of law on these points. Accordingly, the trial court erred in granting summary

judgment in favor of Everett on Hogan’s fraud claim, unjust enrichment claim, and request for a

declaratory judgment.

CONCLUSION

We affirm the trial court’s grant of summary judgment in favor of Everett on Hogan’s

breach of contract cause of action. However, we conclude the trial court erred in granting summary

judgment in favor of Everett on Hogan’s fraud claim, unjust enrichment claim, and request for a

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declaratory judgment. Accordingly, we affirm in part, reverse in part, and remand for proceedings

consistent with this opinion.

Lori I. Valenzuela, Justice

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