Edmidia Violeta Reyes v. D'Maria Adult Daycare, LLC and Maria E. Hernandez

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-25-00064-CV

Edmidia Violeta REYES,
Appellant

v.

D’MARIA ADULT DAYCARE, LLC and Maria E. Hernandez,
Appellees

From the 229th Judicial District Court, Starr County, Texas
Trial Court No. DC-21-368-A
Honorable Baldemar Garza, Judge Presiding

Opinion by: Velia J. Meza, Justice

Sitting: Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice

Delivered and Filed: April 1, 2026

AFFIRMED

Edmidia Reyes purchased an adult day care business from Maria Hernandez and later sued

Hernandez for breach of contract, fraud, and related torts, alleging Hernandez failed to transfer

meaningful ownership and access to the business. Hernandez filed a no-evidence motion for

summary judgment. Applying the sham affidavit rule, the trial court excluded Reyes’s responsive

affidavit and granted summary judgment, dismissing Reyes’s claims. Because the trial court did
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not abuse its discretion in excluding the affidavit and Reyes failed to raise a genuine issue of

material fact on any of her claims, we affirm.

BACKGROUND

On October 5, 2020, Reyes and Hernandez signed an agreement for the sale of D’Maria

Adult Day Care, LLC, which operates a day activity and health services (DAHS) facility 1 located

in Rio Grande City, Texas. Under the agreement, Reyes agreed to pay $180,000 in exchange for

full ownership of the company—$90,000 at signing and the remaining balance at closing. By its

terms, the agreement would close when the Health and Human Services Commission (HHSC)

issues Reyes a license.

The parties agree that Reyes paid the initial $90,000. Beyond that point, however, their

accounts diverge. Reyes contends that she was never provided “meaningful authority” over the

business or access to its financial records and that Hernandez refused to cooperate with the

licensing process. Hernandez, by contrast, asserts she immediately turned the business over to

Reyes, left pre-signed checks and debit cards in the company’s name for Reyes to use, provided

“daily screen shots” of the bank account balances, and executed all documents Reyes requested

her to sign. On May 28, 2021, Reyes’s husband contacted Hernandez and informed her that they

were “backing out” of the purchase. Reyes then fired the facility director, requiring Hernandez to

leave her job in Austin and return to operate the business.

On August 17, 2021, Reyes filed suit alleging Hernandez breached the sale agreement by

(1) refusing to transfer ownership, (2) refusing to give her access to funds, (3) failing to disclose

1
DAHS facilities provide supervision for elderly people and individuals with disabilities “while enabling them to
remain in a family environment and affording the family a measure of normality in its daily activities.” TEX. HUM.
RES. CODE § 103.001 (legislative purpose is “to prevent premature and inappropriate institutionalization”). The Health
and Human Services Commission administers the licensing program for these facilities. Id. § 103.004–.006.

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pending litigation and debts and overstating the number of clients, and (4) failing to cooperate in

the ownership-transfer process. Reyes further alleged these same acts constituted fraud,

negligence, negligent misrepresentation, conversion, and unjust enrichment. Hernandez answered,

asserted a counterclaim for breach of contract, and filed a partial motion for summary judgment

on each of Reyes’s claims. The trial court granted Hernandez’s motion and dismissed Reyes’s

claims. The parties then agreed to sever Hernandez’s counterclaim into a separate cause number,

rendering the partial summary judgment final. This appeal followed.

DISCUSSION

We review summary judgment de novo. Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882

(Tex. 2024). There are two types of summary judgment motions in Texas: traditional and no-

evidence. See TEX. R. CIV. P. 166a. 2 In reviewing either type of motion, we view the evidence in

the light most favorable to the nonmovant, credit favorable evidence if reasonable jurors could do

so, and disregard contrary evidence unless reasonable jurors could not. Merriman v. XTO Energy,

Inc., 407 S.W.3d 244, 248 (Tex. 2013). In a combined or “hybrid” motion, we generally address

the no-evidence grounds first and then, if necessary, the traditional grounds. Id.

Before reaching the merits of the summary judgment, we first address Reyes’s complaint

that the trial court improperly excluded an affidavit attached to her summary-judgment response.

2
The Texas Supreme Court recently rewrote Rule 166a. See Final Approval of Amendments to Rule 166a of the Texas
Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). These amendments apply only to motions
for summary judgment filed on or after March 1, 2026. Id. The rewrite is not intended to substantively change the law,
but the new rule has a different paragraph structure. Because all relevant motions and responses in this case were filed
prior to March 1, 2026, all citations in this opinion are to the paragraph structure of the prior rule.

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1 Objection to Sham Affidavit

We review a trial court’s decision to exclude summary-judgment evidence for abuse of

discretion. Schumacher v. Trois, 705 S.W.3d 854, 868 (Tex. App.—San Antonio 2024, pet. denied)

(en banc). A court may disregard summary-judgment proof under the “sham affidavit” doctrine

where an affidavit clearly contradicts prior sworn testimony on a material point and the affiant’s

explanation for the inconsistency is insufficient. Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex.

2018); E-Learning LLC v. AT & T Corp., 517 S.W.3d 849, 855 (Tex. App.–San Antonio 2017, no

pet.).

Hernandez objected to Reyes’s affidavit as a sham, arguing it materially conflicted with

Reyes’s prior deposition testimony. On appeal, Reyes argues there is no conflict. We agree with

Hernandez.

In her deposition, Reyes repeatedly disclaimed personal knowledge on matters central to

her suit against Hernandez—including disclosure of pending lawsuits and outstanding taxes, and

misrepresentations about the number of clients—and instead deferred to her husband. Yet in her

later affidavit, Reyes asserted personal knowledge of those same topics, and, without explanation,

attested that Hernandez failed to disclose a lawsuit and unpaid taxes, misrepresented the number

of clients, refused to assist with pandemic-relief applications, and had previously attempted to sell

the business.

The affidavit also reversed Reyes’s prior testimony about her control over company funds.

At her deposition, Reyes testified that she had access to the business’s debit cards, pre-signed

checks, and daily screenshots of account balances, and that she paid herself wages from the

company accounts. In her affidavit, however, she stated—again without explanation—that she had

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no access to the accounts, that Hernandez never disclosed account balances, and that she was

“practically” never paid for her work.

In light of these numerous, unexplained contradictions on core issues, the trial court could

reasonably conclude that Reyes’s affidavit was a sham and that it could not create a genuine fact

issue on any element of her claims. Accordingly, the trial court did not abuse its discretion in

excluding the affidavit. Lujan, 555 S.W.3d at 91; E-Learning, 517 S.W.3d at 855. We next

consider whether the remaining summary‑judgment evidence was sufficient to preclude a

no‑evidence summary judgment.

2 No-Evidence Summary Judgment

Hernandez moved for no-evidence summary judgment, specifically challenging every

essential element of Reyes’s claims for breach of contract, common-law fraud, conversion,

negligence, negligent misrepresentation, and unjust enrichment.

A no‑evidence motion permits a party to move for summary judgment on the ground that

there is no evidence of one or more essential elements of a claim or defense on which the

nonmovant would bear the burden of proof at trial. TEX. R. CIV. P. 166a(i). The nonmovant must

then produce more than a scintilla of evidence to raise a fact issue as to each challenged element.

Lozada v. Posada, 718 S.W.3d 262, 266 (Tex. 2025) (per curiam). “Less than a scintilla of

evidence” exists when the evidence is so weak that it does no more than create a mere surmise or

suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than

a scintilla of evidence” exists when the evidence rises to a level that would enable reasonable and

fair‑minded people to differ in their conclusions. Id.

We review only the evidence attached to, or specifically incorporated by, Reyes’s

summary-judgment response. State v. Three Thousand, Seven Hundred Seventy-Four Dollars &

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Twenty-Eight Cents U.S. Currency ($3,774.28), 713 S.W.3d 381, 388–90 (Tex. 2025). Excluding

the sham affidavit, Reyes attached the following to her summary-judgment response: the executed

sale agreement; proof of the initial $90,000 payment; five pages from a deposition of Reyes’s

former attorney, Jay Pena; a certificate of amendment reflecting Reyes’s 49% ownership interest

in the business; an email from HHSC to Hernandez indicating approval of her DAHS license; and

an affidavit concerning attorney’s fees. We first address Reyes’s breach of contract arguments and

then turn to the remaining tort claims.

2.1 Breach of Contract

Reyes contends Hernandez breached the sale agreement by failing to transfer full

ownership, retaining financial control of the business, and failing to disclose pending litigation. 3

To prevail on a breach‑of‑contract claim, a plaintiff must establish: (1) a valid contract; (2)

performance or tendered performance by the plaintiff; (3) breach by the defendant; and (4)

damages resulting from the breach. Brooks v. Excellence Mortg., Ltd., 486 S.W.3d 29, 36 (Tex.

App.—San Antonio 2015, pet. denied).

Under the sale agreement, Reyes agreed to purchase a 100% interest in D’Maria Adult Day

Care, LLC. The agreement assigns Reyes the obligation to prepare and submit the regulatory

applications and provides that the agreement closes when HHSC issues Reyes a license. The

agreement further provides that business profits are to be held in trust contingent on issuance of

that license. Rather than apply for a license and seek a full transfer of ownership, Reyes’s attorney,

Jay Pena, asked Hernandez to transfer only a 49% interest in the business to avoid triggering a

change‑of‑ownership event under HHSC’s administrative regulations.

3
Reyes concedes she produced no evidence supporting her third theory of breach—failure to disclose pending
litigation.

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This evidence shows it was the actions of Reyes’s own attorney—not Hernandez—that

resulted in Reyes acquiring less than a 100% ownership interest, and Reyes produced no evidence

supporting her remaining breach theories. Accordingly, she failed to raise a genuine issue of

material fact on whether Hernandez breached the sale agreement. See King Ranch, 118 S.W.3d at

751.

2.2 Remaining Tort Claims

Hernandez’s no‑evidence motion also challenged each element of Reyes’s claims for

common‑law fraud, conversion, negligence, negligent misrepresentation, and unjust enrichment.

In her summary‑judgment response, Reyes relied on her affidavit to raise a fact issue on these

claims. 4 Because we have held the trial court properly excluded that affidavit as a sham, no

evidence remains to support any element of Reyes’s tort claims.

CONCLUSION

Reyes failed to produce summary‑judgment evidence raising a genuine issue of material

fact as to any challenged element of her claims. The trial court therefore properly granted

Hernandez’s no‑evidence motion for summary judgment and dismissed Reyes’s claims. 5 We

affirm the trial court’s judgment.

Velia J. Meza, Justice

4
Reyes concedes she produced no specific evidence supporting any element of conversion in her summary-judgment
response and instead asks that we review the record for “a plausible inference of wrongful control.” Reyes cites to no
authority for her request and we conclude the argument is inadequately briefed. See TEX. R. APP. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to
the record.”).
5
Because it would not affect the outcome of this appeal, we need not address the traditional grounds for summary
judgment. See TEX. R. APP. P. 47.1.

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