Felipe Martignoni and Janaina Gomes Martignoni v. Artistry Homes, LLC

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-26-00072-CV

FELIPE MARTIGNONI AND JANAINA GOMES MARTIGNONI, APPELLANTS

V.

ARTISTRY HOMES, LLC, APPELLEE

On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. DC-2024-CV-1377, Honorable J. Phillip Hays, Presiding

June 10, 2026
CONCURRING OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

I join the judgment of the Court affirming the trial court’s no-evidence summary

judgment. The Court’s substantive analysis—that the Martignonis failed to produce more

than a scintilla of evidence on the challenged elements of their claims—is correct. And

even if the panel had reached the evidentiary rulings on the merits, I would affirm. The

result of this appeal does not change.
I write separately because I believe our Court’s preservation jurisprudence sweeps

too broadly. See Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561 (Tex.

App.—Amarillo 2013, pet. denied); Rayl v. Borger Economic Development Corp., 963

S.W.2d 109 (Tex. App.—Amarillo 1998, no pet.). Today’s decision, like earlier ones,

holds that a proponent of summary-judgment evidence waives error by failing to object

when the trial court sustains an opposing party’s objection to that evidence.

The bright-line rule is inconsistent with Texas law. The problem originated with

Rayl, which transplanted the defect-objection requirement of former Texas Rules of Civil

Procedure 166a(c) onto the context of a party seeking to admit summary-judgment

evidence. Rule 166a(f), by its terms, addresses defects in the form of summary-judgment

evidence and the opposing party’s obligation to point them out. It does not speak to the

separate question whether a proponent must make a further objection after the trial court

has already sustained an opposing party’s objection and excluded the evidence.

The correct framework for preserving error in the exclusion of evidence is supplied

by Texas Rules of Evidence 103(a)(2). The same rules of evidence that govern at trial

apply equally on summary judgment. FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch.

Dist., 642 S.W.3d 829, 837 (Tex. 2022). Rule 103(a)(2) requires the proponent to inform

the trial court of the substance of the excluded evidence. Gunn v. McCoy, 554 S.W.3d

645, 666 (Tex. 2018). When that substance is apparent from context, no formal offer of

proof is necessary. TEX. R. EVID. 103(a)(2).

Preservation under this framework is contextual, not categorical. Many of the

objections sustained in this case rest on defects apparent from the summary-judgment

2
record. Whether an affidavit lacks a signature, is incomplete or illegible, contains

conclusory or speculative statements, violates the best-evidence rule, or is irrelevant can

all be assessed by the trial court without further development by the proponent. For

objections of this kind, the substance of the excluded evidence is already before the court,

and a further offer of proof or objection adds nothing.

Other objections call for more. Lack of personal knowledge ordinarily requires the

proponent to identify the basis for the affiant’s knowledge. Hearsay ordinarily requires

identification of an applicable exception. A challenge to expert qualifications ordinarily

requires development of the witness’s credentials. For these objections, the proponent

may need to do more to preserve error. Still other objections fall outside Rule 103(a)(2)

altogether, including the contention that summary-judgment evidence contradicts late-

submitted theories in violation of court deadlines, which is governed by general

preservation principles rather than the rules of evidence. The unifying point is that

preservation depends on the nature of the objection. A one-size-fits-all rule fails.

Whether some objections in this case required preservation efforts beyond what

the Martignonis provided is a question best left for another day. This panel is bound by

the breadth of Montenegro and Rayl unless and until this Court, sitting en banc, refines

the doctrine or the Texas Supreme Court corrects it. Mitschke v. Borromeo, 645 S.W.3d

251, 256 (Tex. 2022). Until then, stare decisis compels me to follow these decisions. I

therefore concur in the judgment.

Lawrence M. Doss
Justice
3

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-26-00072-CV

FELIPE MARTIGNONI AND JANAINA GOMES MARTIGNONI, APPELLANTS

V.

ARTISTRY HOMES, LLC, APPELLEE

On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. DC-2024-CV-1377, Honorable J. Phillip Hays, Presiding

June 10, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellants, Felipe Martignoni and Janaina Gomes Martignoni, appeal from the trial

court’s order granting Appellee, Artistry Homes, LLC’s, no-evidence motion for summary

judgment. The Martignonis challenge the order through several issues arguing (1) the

trial court improperly sustained the objection to Felipe Martignoni’s December 11, 2025

affidavit due to defective jurat, (2) the objection based on failure to supplement discovery

responses was improper, (3) the objections to specific paragraphs 3, 6, 9, and 21 of the

affidavit were incorrectly sustained, and (4) taking $130,000 without paying the
subcontractor constituted more than a scintilla of evidence for breach of contract, fraud,

and unjust enrichment claims. We affirm.

BACKGROUND

In February 2024, the Martignonis contracted with Artistry Homes to purchase a

house at 7801 56th Street, Lubbock, TX for $600,000. 1 The Martignonis placed $5,850

earnest money with Title One. The contract for the home included both pool and back

yard construction and additions. 2 The Martignonis paid $65,000 on March 1, 2024, and

an additional $65,000 on May 21, 2024, for a total of $130,000 toward the pool and

backyard. 3 Despite these payments, the pool subcontractor claimed it was not paid and

filed a mechanic’s lien. The home was not completed by the final closing date and the

Martignonis exercised the option to terminate the contract.

Thereafter, the Martignonis filed suit against Artistry Homes for breach of contract,

fraud, fraud in the inducement, conversion, negligent misrepresentation, money had and

received, and unjust enrichment. Artistry Homes filed a no-evidence motion for summary

judgment on November 26, 2025. After considering the evidence, the trial court granted

the motion.

The house was unfinished at the time the parties entered the contract. Martignoni lived in
1

Montana while the home was being finished.
2 The alleged agreed deposits were $50,000 for the pool and $10,000 for the back yard.

3 In an email dated March 1, 2024, Thomas Reyes (owner of Artistry Homes) characterized one

payment as the “Non-Refundable 65k builder deposit for pool and back yard additions[.]”

2
ANALYSIS

Standard of Review

We review a trial court’s decision to grant summary judgment de novo. Wyrick v.

Bus. Bank of Tex., N.A., 577 S.W.3d 336, 346 (Tex. 2019). We consider the evidence in

the light most favorable to the non-movant, indulging reasonable inferences and resolving

doubts in the non-movant's favor. Id. We credit evidence favorable to the non-movant if

reasonable fact finders could, and we disregard contrary evidence unless reasonable fact

finders could not. Id.

In a no-evidence motion for summary judgment, the movant asserts that no

evidence exists of one or more essential elements of the claims for which the non-movant

bears the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Wyrick, 577 S.W.3d at 346.

The non-movant then must present more than a scintilla of probative evidence that raises

a genuine issue of material fact supporting each element contested in the motion. Wyrick,

577 S.W.3d at 346. More than a scintilla exists when the evidence would enable

reasonable and fair-minded people to reach different conclusions. Id. The non-movant

“is ‘not required to marshal its proof; its response need only point out evidence that raises

a fact issue on the challenged elements.’” Id. Unless the non-movant raises a genuine

issue of material fact, the trial court must grant summary judgment. Id. However, if the

non-movant satisfies its burden of production on the no-evidence motion, then the court

cannot properly grant summary judgment. Id. When, as here, the trial court’s order

granting summary judgment does not specify the grounds relied upon, we must affirm

summary judgment if any of the summary judgment grounds are meritorious. Montenegro

3
v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 566-67 (Tex. App.—Amarillo 2013, pet.

denied).

Analysis

Preservation

As an initial matter, Artistry Homes argues the Martignonis failed to preserve their

issues for appellate review because they never responded to Artistry Homes’s objections

to summary judgment evidence, never objected to the trial court’s rulings sustaining those

objections, and never filed a motion to reconsider. Accordingly, pursuant to Montenegro,

419 S.W.3d at 568, this failure forecloses appellate review of evidentiary rulings. We

agree.

As a prerequisite to presenting a complaint for appellate review, the record must

show the complaint was made to the trial court by a timely request, objection, or motion.

See TEX. R. APP. P. 33.1(a). A party whose summary judgment evidence was excluded

may not argue any and every new issue he can think of on appeal. Montenegro, 419

S.W.3d at 568. “When a party fails to object to the trial court’s ruling that sustains an

objection to his summary judgment evidence, he has not preserved the right to complain

on appeal about the trial court’s ruling.” Id. Even if the objection appears meritorious on

appeal, it is not preserved for appellate review if the record does not show that the

complaint was made to the trial court. Id.

In this case, Artistry Homes objected to the Martignonis’s summary judgment

evidence on several bases. The Martignonis did not respond to those objections and did

not object to the trial court’s ruling sustaining those objections. Further, the Martignonis
4
did not file a motion bringing any complaint about the trial court’s rulings to the attention

of the trial court. Accordingly, the Martignonis have failed to preserve the right to complain

about the trial court’s evidentiary rulings. Id. at 568-69; Cantu v. Horany, 195 S.W.3d

867, 871 (Tex. App.—Dallas 2006, no pet.). We therefore will not consider the claims

concerning those rulings.

Substantive Claims

Via the remaining issues, the Martignonis contend they produced more than a

scintilla of evidence to establish each element of their breach of contract, 4 fraud, 5 and

unjust enrichment 6 claims. We disagree. Below, Artistry Homes objected to Felipe

4 To prove breach of contract, the Martignonis were required to establish: (1) the existence of a

valid contract; (2) performance or tendered performance by the plaintiff; (3) breach by the defendant; and
(4) damages. Domingo v. Mitchell, 257 S.W.3d 34, 39 (Tex. App.—Amarillo 2008, pet. denied); Perez v.
Flagship Credit Acceptance, LLC, No. 07-25-00151-CV, 2025 Tex. App. LEXIS 9028, at *4 (Tex. App.—
Amarillo Nov. 24, 2025, no pet.) (mem. op.). The evidence shows failure of the Martignonis to tender
performance and in fact, shows they exercised the right to terminate the contract, received escrow money
back, and purchased another home. Further, the Martignonis presented no evidence of any breach by
Artistry Homes.
5 To establish a fact question on fraud or fraudulent inducement, the Martignonis were required to

submit evidence that: (1) Artistry Homes made a material representation; (2) the representation was false;
(3) Artistry Homes knew the representation was false or made the representation recklessly, as a positive
assertion, and without knowledge of its truth; (4) Artistry Homes intended the Martignonis to act on the
representation; (5) the Martignonis relied on the representation; and (6) the Martignonis were damaged.
Perez, 2025 Tex. App. LEXIS 9028, at *6. “Fraudulent inducement is a distinct category of common-
law fraud that shares the same elements but involves a promise of future performance made with no
intention of performing at the time it was made.” Id. No evidence was brought forth showing Artistry Homes
made a material and false representation concerning the use of funds for the construction of the pool, that
Artistry Homes made any representation recklessly or without knowledge of its truth, or that Artistry Homes
promised the Martignonis that the pool would be completed when it had no intention of completing the
project when it so promised.
6 Unjust enrichment is an equitable theory of recovery where a party has obtained a benefit from

another by fraud, duress or the taking of an undue advantage, and the receipt of those benefits is not
governed by contract. Mason v. Mason, No. 07-12-00007-CV, 2014 Tex. App. LEXIS 416, at *14 (Tex.
App.—Amarillo Jan. 13, 2014, no pet.) (mem. op.). The Martignonis point only to evidence they claim
supports their other causes of action and we determine herein the evidence fails to provide more than a
scintilla of evidence to support each element of those claims.

5
Martignoni’s affidavit and the supporting evidence. The trial court sustained that

objection. The lack of the affidavit and supporting documentation is fatal to the

Martignonis’ position on appeal. Without the evidence excluded by the trial court, the trial

court had before it only the new home contract, the amendments to that contract, Artistry’s

discovery responses, and an affidavit concerning the lien placed by the pool

subcontractor. None of these documents provide evidence supporting the elements of

the Martignonis’ claims challenged in Artistry Homes’s no-evidence motion for summary

judgment.

We specifically note that section 9(B)(4) of the new home contract provides,

“[t]here will be no liens, assessments, or security interests against the Property which will

not be satisfied out of the sales proceeds unless securing payment of any loans assumed

by Buyer and assumed loans will not be in default.” There is nothing in the record to

explain the basis of the lien, and, under section 9(B)(4) of the contract, the lien would

have been satisfied out of the sales proceeds once the home purchase was complete.

We cannot, therefore, find evidence of the lien supported any of the elements of the claims

brought against Artistry Homes.

Further, Artistry Homes points out that the Martignonis never established they were

ready, willing, and able to perform the contract. Artistry Homes filed a no-evidence motion

for summary judgment, making it the Martignonis’ burden to present more than a scintilla

of probative evidence raising a genuine issue of material fact supporting each element

contested in the motion. Wyrick, 577 S.W.3d at 346. They did not do so. Rather, the

evidence they presented did the opposite and actually impaired their position.

Significantly, Artistry Homes’s response to a request for disclosure provides as follows:
6
Defendants entered into a New Home Contract (the “Contract”)
dated February 27, 2024 to finish building an incomplete home situated in
Lubbock County, Texas . . . for Plaintiffs Felipe Martignoni and Janaina
Martignoni (The “Martignonis”).
The parties agreed to close on or before April 1, 2024, which was
later extended by agreement. On August 16, 2024, the Martignonis
informed Artistry Homes, LLC that they would not proceed with Closing on
the Property, which terminated the Contract. Accordingly, the Martignonis
elected the remedy of termination and return of the escrow money. Artistry
notified the escrow agent that it was to release the escrow money to the
Martignonis.
The Martignonis then purchased another home.

This is evidence showing the Martignonis exercised their right to terminate under

the contract and thus, were not ready, willing, and able to fulfil their obligation under the

contract. This too contradicts their position on appeal.

The Martignonis have failed to present more than a scintilla of probative evidence

raising a genuine issue of material fact supporting each element contested in Artistry

Homes’s no-evidence summary judgment motion. We therefore overrule the issues.

CONCLUSION
Having resolved the Martignonis’ issues against them, we affirm the judgment of

the trial court.

Alex Yarbrough
Justice

7