Denmax Energy Services, Inc. and Battle River Holdings, Inc. v. Lightpoint Engineering, LLC

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00120-CV
__________________

DENMAX ENERGY SERVICES, INC. AND
BATTLE RIVER HOLDINGS, INC., Appellants/Cross-Appellees

V.

LIGHTPOINT ENGINEERING, LLC, Appellee/Cross-Appellant

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 19-05-06401-CV
__________________________________________________________________

MEMORANDUM OPINION

Appellants Denmax Energy Services, Inc. (“Denmax”) and Battle River

Holdings, Inc. (“BRH”) (collectively “Appellants” or “Defendants”) appeal from a

jury verdict and final judgment rendered in favor of Appellee LightPoint

Engineering, LLC (“Appellee,” “Plaintiff,” or “LightPoint”). Before trial,

Defendants filed a motion for summary judgment, and the trial court granted partial

summary judgment in favor of the Defendants on Plaintiff’s claims for breach of

1
contract, declaratory judgment, and suit on a sworn account. Plaintiff’s remaining

equitable claims for quantum meruit and unjust enrichment were tried to a jury, and

the jury rendered judgment in favor of the Plaintiff.

On appeal, Appellants argue that: the express contract rule precludes an award

for quantum meruit or unjust enrichment; the evidence is legally insufficient to

support an award for quantum meruit or unjust enrichment; the trial court erred by

denying Appellants’ attorney’s fees that were awarded by the jury; the trial court

erred by awarding Appellee its attorney’s fees because there was no evidence or

insufficient evidence of presentment and because Appellee failed to segregate its

fees; and the trial court erred by finding Denmax and BRH jointly and severally

liable for damages and attorney’s fees. On cross-appeal, Appellee argues that the

trial court erred by requiring Appellee to elect remedies and by granting the

Appellants’ pretrial summary judgment on Appellee’s claim for breach of contract,

and Appellee argues that Defendants did not properly prove their attorney’s fees. As

explained below, we conclude that the trial court erred by granting Defendants’

pretrial motion for summary judgment on LightPoint’s breach of contract claim, and

we reverse and remand for a new trial.

2
Background 1

Denmax is a construction company owned by Trevor King (“King”), and

BRH is a separate entity owned by King that was created in February 2018 to

purchase the 32-acre tract of land located in Willis, Texas, which is involved in this

lawsuit. DMX Investments, LLC (“DMX”) is an entity owned by Denmax for

investments. 2 Denmax planned to build a commercial facility, maintenance and

fabrication shop, and equipment yard on the 32-acre site, subject to approval from

the City of Willis. The 32-acre site chosen by Denmax had previously been used as

a racetrack. Denmax anticipated that there would be 7 to 10 additional lots within

the 32-acre site that would be available for sale or lease for others to build offices

on. Denmax needed an engineering firm to draw up plans for the project.

On December 13, 2017, Denmax entered into a Professional Services

Agreement (“PSA”) with LightPoint, an engineering firm, for “preliminary

engineering services” for the Denmax project. The PSA defines Denmax as the

“client,” and it describes the services as including “Client Representation,

Consulting, and Land Planning[.]” The PSA states that LightPoint will charge a lump

1
Because our disposition of the case turns on Appellee’s second cross-point,
which deals with the trial court’s partial grant of Appellants’ summary judgment
motion, we will focus primarily on the record as it relates to that motion. See, e.g.,
Giant Res., LP v. Lonestar Res., Inc., No. 02-21-00349-CV, 2022 Tex. App. LEXIS
5070, at *2 (Tex. App.—Fort Worth July 21, 2022, no pet.).
2
LightPoint nonsuited DMX Investments, LLC (“DMX”) at trial, but DMX
was still a party when the competing motions for summary judgment were filed.
3
sum of $3,500 for “Preliminary Engineering” for the development of the 32-acre

site. The PSA describes “Preliminary Engineering” to include “Client

Representation, Consulting, and Land Planning services.” The PSA also provides

that LightPoint shall invoice the Client monthly for time and materials, and a fee

schedule is attached to the PSA with an hourly billing rate for engineers, land

planner, administrative support, and in-house plotting. The PSA provides that the

Client’s failure to pay in accord with the PSA “shall constitute a material breach of

this AGREEMENT and shall be cause for termination” by LightPoint. Otherwise,

the PSA allows either party to terminate the agreement with written 30-day notice,

or “should either party fail to perform any material obligations.”

LightPoint’s Petition

LightPoint filed an Original Petition on May 9, 2019, against Denmax, BRH,

and DMX Investments, LLC. Thereafter, LightPoint filed amended petitions, and

the Fourth Amended Petition was the live pleading when the parties filed their

respective motions for summary judgment and at the time of trial. In the Fourth

Amended Petition, LightPoint alleged that in December 2017, it had entered into a

written contract with Denmax for “a preliminary engineering consultation” (the

PSA) regarding a former racetrack site (which is also referenced as a 32-acre site)

located in Willis, Texas. According to the petition, the preliminary engineering was

to help Denmax determine the prospects for commercial development at the site and

4
to help Denmax decide whether to purchase the site. Thereafter, BRH purchased the

site, although BRH was not a party to the PSA.

LightPoint alleged that at some later date, Defendants “Denmax and/or DMX”

also hired Plaintiff “to render full engineering, design, and coordination services to

the Site[.]” According to LightPoint, at a meeting in February of 2018, Denmax

offered LightPoint “one of the proposed lots on the Site in exchange for LightPoint’s

full engineering and design services[,]” and LightPoint called this agreement the

“Final Engineering Agreement[.]” LightPoint alleged that, in exchange for a lot,

LightPoint was to provide “full engineering and design services, which was to

include, [] signed and sealed construction drawings, drainage reports with

calculations, managing the approval of plans and the permitting process, and

coordinating with the City of Willis regarding development of and access to utilities

on the Site[.]” LightPoint further alleged that it completed its obligations under the

Final Engineering Agreement over a 14-month period.

LightPoint’s petition alleges that at some point, it became apparent that the

City of Willis might not allow a second building on the site. LightPoint had hoped

to use a lot at the site for its new headquarters, and if LightPoint could not construct

a building on the site, the land-for-services agreement would be “without value” to

LightPoint. The petition further alleges that Denmax made it clear that it still needed

LightPoint’s services and that LightPoint would be paid for its work. LightPoint

5
alleges that “Defendants requested that Plaintiff generate an invoice addressed to

BRH for the entirety of [Plaintiff’s] services so that payment could be made[,]” after

which LightPoint issued an invoice to Denmax for “the entirety of its final

engineering work in the amount of $204,560.00[.]” According to the petition,

Denmax did not pay despite having requested the invoice and having “consented to,

received, and benefited from” work that LightPoint provided.

The petition asserts a claim for declaratory judgment (to determine and clarify

the parties’ contractual relationships and obligations), for breach of contract, a suit

on sworn account, and in the alternative a claim for quantum meruit and unjust

enrichment. In LightPoint’s breach of contract claim, it alleges that it had a “valid,

enforceable agreement for the provision of final engineering and design services in

exchange for land[]” and that LightPoint had fully performed its obligations under

the agreement or alternatively, that Denmax breached the Preliminary Engineering

Agreement. Plaintiff also included a request for attorney’s fees under chapters 37

and 38 of the Texas Civil Practice and Remedies Code.

Attached to the petition is the affidavit of Michael Mathena, the president of

LightPoint. The affidavit states that the lawsuit is “based upon goods/services

provided[]” by LightPoint to Denmax and states that a balance of $204,560 is due

on the account. Attached to the affidavit is LightPoint’s invoice to Denmax, dated

March 20, 2019, for a project described as “L116-Engineering Design[.]” The

6
invoice includes a description of services, hours, billing rates, and shows the total

amounts due for services from December 2017 through March 2019. The invoice

reflects credits totaling $20,380.

Defendants’ Answer

Defendants filed a verified Original Answer asserting a general denial and

denying that certain conditions precedent to Plaintiff’s claims had occurred, namely:

a. Plaintiff failed to send monthly invoices to Denmax as required under
the December 13, 2017 Professional Services Agreement (the
“Agreement”);
b. Plaintiff failed to notify Denmax that the total amount would exceed
the agreed-to $3,500 estimate as required under the Agreement;
c. Plaintiff failed to notify Denmax of all changes needed to the Scope
of Services under the Agreement; and
d. Plaintiff failed to present its claim for payment to Defendants
regarding the alleged breach of contracts.

Defendants asserted several affirmative defenses, including: Plaintiff’s prior

material breach of the agreement; Plaintiff’s failure to fully or substantially perform

the services for which it seeks compensation; Plaintiff’s fraud; Plaintiff’s claims

being barred in whole or in part because a valid express contract exists that covers

the services that are the subject of Plaintiff’s claims; Plaintiff’s unclean hands; the

statute of frauds; and lack of consideration.

Plaintiff’s Traditional Motion for Partial Summary Judgment (“MPSJ”)

LightPoint filed a traditional motion for partial summary judgment against

Denmax on its sworn account claim, supported by an affidavit of Michael Mathena

7
and an invoice. In the motion, LightPoint alleged that it had performed work for

Denmax pursuant to a sworn account, Denmax had received $204,560 in engineering

design and related services, and Denmax had not paid and refused to pay the amount

owed after allowing for all offsets and credits. LightPoint’s motion for partial

summary judgment also alleges that Denmax failed to file a sworn denial as required

by Rules 93(10) and 185 of the Texas Rules of Civil Procedure, and claimed that as

a result, Denmax was barred from disputing the receipt of services or the accuracy

of the charges. According to LightPoint, the purported verification Denmax included

within its Original Answer was not notarized, so it was not sufficient to controvert

LightPoint’s sworn account claim. LightPoint also alleged that the verification

Denmax included in its answer, which LightPoint asserts is defective, does not

include a denial of LightPoint’s claim on its sworn account. According to

LightPoint’s motion, no material fact issues exist on the claim it asserted on its sworn

account, and it is entitled to judgment on this claim as a matter of law. Lightpoint

attached an affidavit signed by an attorney that claims Lightpoint is entitled to a

recovery of at least $96,000 in attorney’s fees.

Denmax’s Response to Plaintiff’s MPSJ

Denmax filed its response to LightPoint’s MPSJ, arguing in part that the

Fourth Amended Petition, Mathena affidavit, and the invoice attached thereto did

8
not constitute proper summary judgment evidence.3 Denmax alleged that a suit on a

sworn account is not an independent cause of action and “‘without a contract there

can be no action on a sworn account.’”4 Therefore, Denmax argued a threshold

inquiry is whether there is an enforceable agreement between the parties, and

Denmax alleged there was no enforceable agreement. According to Denmax’s

response to the LightPoint motion, in the deposition of Mathena (LightPoint’s

president), Mathena testified that at the time the parties entered into the contract for

additional engineering services, it was “a contract in exchange for land.” Denmax

argues that the only contract LightPoint pleaded in its Fourth Amended Petition was

not a contract on an open account but rather “an alleged Land-for-Services

Agreement[.]” Denmax explained that “a contract on an open account is neither

synonymous to nor interchangeable with a contract involving the sale of real

property[]” and to the extent LightPoint pleads a sworn account claim in the

alternative, such alternative pleading is not proper. Denmax suggested that

LightPoint attempted to plead this as an alternative claim in order to avoid the statute

of frauds, which would require a signed writing for the alleged Land-for-Services

3
Denmax filed objections to the evidence attached to LightPoint’s MPSJ and
asked the trial court to strike Plaintiff’s Summary Judgment Evidence. Our appellate
record does not include an order by the trial court ruling on Denmax’s objections.
4
Citing and quoting Mitsuba Tex., Inc. v. Brownsville Indep. Sch. Dist., No.
05-97-01271-CV, 2000 Tex. App. LEXIS 772, at *10 (Tex. App.—Dallas Feb. 2,
2000, no pet.).
9
agreement. Denmax argues that there is no evidence that a valid enforceable contract

on an open account exists between LightPoint and Denmax, or that at a minimum,

there is a fact question about whether such a contract exists, precluding summary

judgment.

In the Denmax response, Denmax argued that the services listed in the invoice

were provided by Spear Point Engineering, LLC (“Spear Point”)5 and not by

LightPoint and that the invoice was not created contemporaneously but rather “after-

the-fact for purposes of litigation.” It further argued that it was not required to file a

verified denial because LightPoint’s Fourth Amended Petition did not comply with

Rule 185 and lacked specific detail. Denmax further argued that LightPoint’s claim

for attorney’s fees is not supported by competent evidence because the attorney’s

affidavit does not comply with the lodestar requirements.

Defendants’ Motion for Summary Judgment

Defendants also filed a Motion for Summary Judgment.6 The Defendants’

motion for summary judgment disputed LightPoint’s characterization of the

underlying facts in several ways. According to the Defendants’ MSJ, after having

5
In his deposition, Michael Mathena (LightPoint’s president) testified, “We
own a company called SGR Investments. We own a company called Caliber
Development, and we’re all partners in Spear Point Engineering and another
company called TRI BIO[.]” He also testified, “We have [] an agreement with Spear
Point that we provide [] mutual beneficial services.”
6
The Denmax Motion does not expressly state whether it is a no-evidence or
traditional motion for summary judgment.
10
received “Invoice No. 14” from LightPoint for $543.75 in January of 2018, it did

not receive another invoice until March of 2019, when it received “Invoice No. 270”

from LightPoint for more than $215,000. Defendants alleged that the invoices

received from LightPoint identified the project name as “L116-Preliminary

Engineering[,]” which was the same project name included in the PSA. In addition,

Defendants argued that LightPoint’s May 9, 2019, demand letter makes it clear that

LightPoint’s claim for payment related to work LightPoint “allegedly performed on

the ‘Preliminary Engineering Project.’” Defendants agreed that the copy of Invoice

No. 270 for about $215,000 which was attached to LightPoint’s First Amended

Petition includes a project description of “L116-Engineering Design[,]” but they

contend that this version of Invoice No. 270 is “fabricated[.]” Quoting from

Mathena’s deposition, Defendants asserted that Mathena and LightPoint have

admitted that neither Denmax nor DMX breached the PSA, which Defendants

maintained is the only basis for LightPoint’s breach of contract claim.

Defendants explained in their motion that the parties’ dispute arises from the

PSA entered into in December of 2017 for “preliminary engineering.” The

Defendants argued that DMX was not a party to the PSA, and therefore LightPoint

cannot hold DMX liable for any alleged breach of that contract. Defendants also

argued in their motion for summary judgment that LightPoint admitted that Denmax

fully performed under the PSA because, in the Fourth Amended Petition, LightPoint

11
pleaded that “[t]he fee for that stage of work ($3,500) was paid and the services

rendered, thus ending the term of the agreement.” Defendants also alleged that

Mathena admitted the same in his deposition. Defendants further argued that

LightPoint failed to comply with all conditions precedent for payment because

(1) LightPoint did not provide Denmax with monthly invoices, (2) LightPoint did

not notify Denmax that the scope of work had changed, and (3) LightPoint did not

notify Denmax that the total cost would exceed the agreed-to fee of $3,500.

Defendants also alleged in the alternative that the failure to comply with conditions

precedent constituted a “prior material breach” by LightPoint that relieves Denmax

from any further obligation under the agreement. Defendants denied that they ever

entered into a land-for-services agreement with LightPoint and argued “there is

simply no evidence that the parties ever entered into a valid contract involving the

conveyance of real property.” According to Defendants, Mathena’s deposition

testimony reflected that, at most, the parties had “general discussions involving the

possibility of a ‘swap’ of ‘engineering for a tract of land’ in the ‘corner’ of the

property.” Accordingly, Defendants argue that any purported land-for-services

agreement is not sufficiently definite for a court to understand the parties’

obligations. But even assuming there was a land-for-services agreement, Defendants

argue it would not be enforceable under the statute of frauds for lack of a signed

writing. Defendants then argued that specific performance is not available to

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LightPoint as a remedy because the alleged land-for-services agreement is “too

uncertain to justify specific performance[]” and lost profits are not available because

there is no evidence that LightPoint suffered any lost profits as a result of the alleged

breach of a land-for-services agreement.

As to LightPoint’s claim for suit on a sworn account, Defendants argued in

their MSJ that such a claim is not an independent cause of action but rather depends

on a valid underlying contract claim and that Mathena testified in his deposition that

there was no contract on an open account but only a land-for-services agreement.

Defendants also alleged that Invoice No. 270—attached to LightPoint’s Fourth

Amended Original Petition and the basis for LightPoint’s claim for suit on sworn

account—was never sent to the Defendants but was a “fabricated” version of the

invoice for the lawsuit and an inaccurate approximation. Defendants further argued

that they were entitled to summary judgment on LightPoint’s claim for declaratory

judgment because LightPoint bears the burden of proof on each element of the

contract, Mathena testified that there was no contract on an open account, and the

alleged land-for-services agreement is barred by the statute of frauds. Defendants

also challenged the attorney’s fees, arguing LightPoint did not plead for attorney’s

fees under section 37.009 of the Texas Civil Practice and Remedies Code, so it is

not entitled to such fees.

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Defendants asserted they were also entitled to summary judgment on

LightPoint’s claim for quantum meruit because quantum meruit is not available

where there is an express contract, and the express PSA for preliminary engineering

precludes recovery as a matter of law. Defendants also complained there is no

evidence that LightPoint performed services for Defendants because the invoice is

based only on approximations, because Mathena testified that most of the work was

done by Spear Point and not LightPoint, and because there is no evidence that any

services performed by LightPoint were valuable. Defendants also alleged that the

express PSA precludes recovery under an unjust enrichment claim and that there is

no evidence that the Defendants obtained any benefit from LightPoint by fraud,

duress, or taking undue advantage.

Several items are attached to Defendant’s MSJ, including: the deposition

transcript of Michael Mathena (LightPoint’s president), a letter from LightPoint’s

attorney to Denmax, and the deposition transcript of Trevor King (president of

Denmax, BRH, and DMX Investments, LLC).

LightPoint’s Response to Defendants’ MSJ

LightPoint filed a timely response to Defendants’ motion for summary

judgment. LightPoint argued that Defendants’ MSJ rests on a “false premise,” that

is, that the services for which LightPoint seeks payment are the subject of the PSA.

LightPoint alleged it is seeking payment for “distinct services that are outside the

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scope of that agreement.” In its response, LightPoint characterizes the PSA as a

“prior agreement” that was for Preliminary Engineering only, dated December 13,

2017, and to be billed at a total fee of $3,500. LightPoint argues that in February of

2018, Defendants “promised a specific lot of land on the property [being developed]

in exchange for the services (“Final Engineering Agreement”)[,]” as reflected in an

affidavit of Michael Mathena. According to LightPoint, in reliance on this promise,

LightPoint began final engineering and design services and created a plan that was

submitted to the City of Willis for approval in June 2018. A copy of several pages

of drawings is attached to LightPoint’s response, titled “Construction Plans for

Paving, Drainage & Utilities to Serve Denmax Commercial Development June,

2018[,]” and the drawings bear the name “LightPoint Engineering, LLC[.]”

LightPoint acknowledges that it subcontracted some of the work to others, including

to Spear Point.

According to LightPoint, the Defendants had “issues” with the City of Willis

about utilities, and a representative for Denmax informed LightPoint that Denmax

would not be able to provide LightPoint with a lot as had been previously agreed.

An email dated August 1, 2018, is attached to the LightPoint response to the MSJ.

In that email, Denmax informed LightPoint, “Of course, we need your services to

redo the plans etc[.] for the site but first Trevor would like you to know that you will

15
be paid for services to date upon receipt of your invoice.” 7 According to LightPoint,

in reliance upon this email and at Denmax’s direction, LightPoint continued working

on the project, including developing a second version of the initial drawings, and the

second version was approved by the City of Willis. However, LightPoint alleged

that when LightPoint invoiced Denmax, Denmax refused to pay. LightPoint

incorporated its MPSJ into its response and alleged that Defendants are barred from

denying LightPoint’s claim for suit on a sworn account because Defendants failed

to file a sworn denial.

As to Defendants’ argument that the express PSA precludes an equitable claim

for quantum meruit, LightPoint argued that the express PSA was “limited in scope

and in no way obligates Plaintiff to provide final engineering and design services”

in exchange for $3,500. Regarding the invoices from 2019 that listed the project as

“L116-Preliminary Agreement[,]” LightPoint asserted this reference was merely an

administrative “carryover” that was subsequently updated. LightPoint asserted that

its claim for declaratory judgment is valid because the statute permits a party to a

contract to seek a declaratory judgment to construe the contract, to determine its

validity, and to seek a declaration of the rights and relationships under the contract.8

Regarding its claim for unjust enrichment, LightPoint noted that it pleaded a claim

7
Trevor King is the president of Denmax Services, Inc., Battle River
Holdings, Inc., and DMX Investments, LLC.
8
Citing Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a).
16
for unjust enrichment as an alternative to its other claims and alleged there is

evidence of “fraud, duress, or the taking of an undue advantage[]” because of

Denmax’s size relative to LightPoint’s as a startup company and Denmax’s

continuing to assure LightPoint it would pay LightPoint (as outlined in the email of

August 1, 2018) which was an inducement to get LightPoint to continue working for

Denmax.

As to its claim for breach of contract, LightPoint argues that the breach of

contract claim is based on the “Final Engineering Agreement” and not the PSA,

although LightPoint pleaded in the alternative that the Defendants had breached the

PSA. LightPoint asserted that Defendants waived any defense of mistake by a failure

to plead it. According to LightPoint, the PSA shows DMX as a signatory, which is

sufficient to preclude the trial court from granting the Defendants’ Motion for

Summary Judgment. LightPoint also argued in its response that its breach of contract

claim is not based on the PSA but rather a later agreement for “final engineering,”

but it alleged that should the trial court determine that the PSA covers all engineering

and design services, then the Defendants were still required to pay for those services

“on a time and materials basis per the rates outlined in that agreement.” As to

Defendants’ assertion that LightPoint had failed to comply with conditions precedent

in the PSA, LightPoint argued that (1) the PSA was no longer operative, or in the

alternative, (2) Defendants waived any such conditions precedent by their conduct.

17
LightPoint explained in its response that its breach of contract claim is based on a

“Final Engineering Agreement” for “final engineering and design services[,]” which

was initially to be a land-for-services agreement. To the extent the statute of frauds

applied to that agreement, LightPoint argued that a “later writing acknowledging”

the agreement exists—namely, the August 1, 2018 email from Marion Gerhardt

(outside general counsel for Denmax) to Mathena requesting an invoice—which

LightPoint contends constitutes a legally sufficient writing. 9 In addition, LightPoint

asserted that an oral agreement that has been fully performed may be enforceable

despite the statute of frauds and it alleges that LightPoint fully performed the

engineering services for Defendants.10

Several attachments are included with LightPoint’s response, including: an

affidavit of Michael Mathena; a copy of the PSA; “Construction Plans for Paving,

Drainage & Utilities to Serve Denmax Commercial Development” by LightPoint,

dated June of 2018; an August 1, 2018 email from Marion Gerhardt to Michael

Mathena stating in part “we need your services to redo the plans” and “you will be

9
Citing Tex. Bus. & Com. Code Ann. § 322.007 (recognizing electronic
records and signatures); Joiner v. Elrod, 716 S.W.2d 606, 609 (Tex. App.—Corpus
Christi 1986, no writ) (where the statute of frauds requires a signed writing, the
writing may be made after the agreement and need not contain all the agreed-upon
terms).
10
Citing Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147,
158 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Union Props. Co. v. Klein, 333
S.W.2d 864, 867-68 (Tex. App.—Eastland 1960, writ ref’d n.r.e.).
18
paid for services to date upon receipt of your invoice[]”; “Construction Plans for

Paving, Drainage & Utilities to Serve Battle River Site” by LightPoint, dated

February of 2019; an affidavit and expert report of Lawrence Goldberg, a civil

engineer; excerpts of Trevor King’s deposition; excerpts of Marion Gerhardt’s

deposition; and the Fourth Amended Petition.

Both parties raised objections to the other party’s summary judgment

evidence, but the appellate record does not include any order ruling on the

objections. The trial court granted in part and denied in part Defendants’ Motion for

Summary Judgment. The court denied Defendants’ motion as to Plaintiff’s claims

for quantum meruit, unjust enrichment, and attorney’s fees, and granted in part the

Defendant’s Motion for Summary Judgment as to LightPoint’s causes of action for

declaratory judgment, breach of contract as to both the “land/ser[vi]ces claim and

the services/materials claim,” and on the sworn account. The trial court denied

Plaintiff’s Motion for Partial Summary Judgment on its claim on sworn account “in

its entirety.”

The Jury’s Verdict

Plaintiff’s claims for unjust enrichment, quantum meruit, and attorney’s fees

were tried to a jury.11 The jury’s verdict was as follows:

Because we resolve this appeal on the trial court’s error in granting the
11

Defendants’ summary judgment on the breach of contract claim and we remand for
19
• Question 1 on quantum meruit: “Did Plaintiff perform compensable
work for the Defendants for which Plaintiff was not compensated?”
The jury answered “yes” as to Denmax and “no” as to BRH.
• Question 2: “What is the reasonable value of such compensable work
at the time and place it was performed?” The jury answered
“$130,000.00.”
• Question 3 on Plaintiff’s attorney’s fees: “What is a reasonable fee
for the necessary services of Lightpoint Engineering, LLC’s
attorneys as to the matter found by you in Question 1, as stated in
dollars and cents?” The jury answered “$250,000.00” for
representation in the trial court, “$45,925.00” for representation in
the court of appeals, and “$41,250.00” for representation in the
Supreme Court of Texas.
• Question 4 on unjust enrichment: “Did any of the parties named
below wrongfully secure a benefit or passively receive one from
Lightpoint Engineering, LLC which it would be unconscionable to
retain?” The jury answered “no” as to Denmax and “yes” as to BRH.
• Question 5: “What is the reasonable value of such benefit as found
by you in Question 4?” The jury answered “$65,000.00.”
• Question 6 on Defendants’ attorney’s fees: “What is a reasonable fee
for the necessary services of Denmax Energy Services, Inc.’s and
Battle River Holdings, Inc.’s attorneys in this case, as stated in dollars
and cents?” The jury answered “$250,000.00” for representation in
the trial court, “$45,925.00” for representation in the court of
appeals, and “$41,250.00” for representation in the Supreme Court
of Texas.

Final Judgment Entered by Trial Court

In its Final Judgment,12 the trial court granted Plaintiff’s Motion for Entry of

Judgment on the Verdict with certain “modifications” and ordered the following:

a new trial, we need not discuss the evidence presented at trial. See Tex. R. App. P.
47.1.
12
The parties also filed certain posttrial motions, which we do not discuss
because they do not relate to our resolution of this appeal. See Tex. R. App. P. 47.1.
The Plaintiff filed an Unopposed Motion for Judgment Nunc Pro Tunc after the trial
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• LightPoint shall recover $130,000.00 from Denmax and BRH
jointly and severally;
• LightPoint shall recover from Denmax and BRH pre-judgment
interest, post-judgment interest, and court costs jointly and
severally;
• LightPoint shall recover $250,000.00 for attorney’s fees from
Denmax and BRH jointly and severally;
• Denmax Energy Services, Inc., BRH, and DMX Investments, LLC
shall take nothing on their claim for attorney’s fees as “such an
award is neither equitable nor just”;
• BRH’s liability on the Final Judgment shall not exceed $65,000.00
plus pre-judgment interest, post-judgment interest, and attorney’s
fees;
• Denmax’s liability on the Final Judgment shall not exceed
$130,000.00 plus pre-judgment interest, post-judgment interest, and
attorney’s fees; and
• providing for attorney’s fees on appeal.

The Final Judgment also stated that it “is final as to all claims and parties and is

appealable.”

Defendants filed a Motion to Modify Final Judgment, challenging the finding

of “joint and several liability” against Denmax and BRH and the award of attorney’s

fees against BRH, and restating the prior objections and challenges. Defendants

timely filed their notice of appeal. Thereafter, LightPoint timely filed a Cross-Notice

of Appeal.

court entered the Final Judgment, citing errors in spelling “Denmax” in the Final
Judgment, which the trial court granted.
21
Issues Raised on Appeal and Cross-Appeal

Appellants Denmax and BRH raise four issues on appeal. In their first issue,

Appellants argue that this Court should reverse and render a take-nothing judgment

(or modify the judgment) on LightPoint’s equitable claims because the express

contract rule precludes these claims as a matter of law and because the evidence is

legally insufficient to support an award on these claims. In their second issue,

Appellants argue that this Court should reverse and reinstate the award of attorney’s

fees to Denmax and BRH because it is unjust and inequitable for the trial court to

eliminate the jury’s award. In their third issue, Appellants argue that this Court

should reverse and render a take-nothing judgment on LightPoint’s attorney’s fees

claims (or remand for reconsideration) because the judgment on quantum meruit

should be reversed, because unjust enrichment cannot support an award of attorney’s

fees, because of insufficient evidence of presentment, and because LightPoint failed

to segregate its fees. In their fourth issue, Appellants argue that this Court should

reverse that portion of the Final Judgment finding Denmax and BRH jointly and

severally liable for damages and attorney’s fees.

Appellee raises three issues on cross-appeal. In its first cross-issue, Appellee

argues that the trial court erred by requiring LightPoint to elect remedies by finding

Denmax liable for quantum meruit in the amount of $130,000 and finding BRH

liable for unjust enrichment in the amount of $65,000. In its second cross-issue,

22
Appellee argues that the trial court erred in granting summary judgment on

LightPoint’s breach of contract claim. And in its third cross-issue, Appellee argues

that Denmax did not properly prove its attorney’s fees. Appellee’s brief describes its

second and third cross-issues as “conditional,” however, Appellee did not state its

cross-issues are conditional in the Cross-Notice of Appeal that it filed.

We have jurisdiction to review the trial court’s pretrial ruling on the summary

judgment because “[w]hen a trial court renders a final judgment, the court’s

interlocutory orders merge into the judgment and may be challenged by appealing

that judgment.” Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC,

603 S.W.3d 385, 390 (Tex. 2020); see also City of Beaumont v. Guillory, 751 S.W.2d

491, 492 (Tex. 1988) (per curiam) (“[T]he party against whom an interlocutory

summary judgment has been rendered has his right of appeal when and not before

such partial summary judgment is merged in a final judgment disposing of all parties

and issues.”); Alpert v. Riley, 274 S.W.3d 277, 286 (Tex. App.—Houston [1st Dist.]

2008, pet. denied) (“When a trial court grants a partial summary judgment, the issue

is ripe for appeal on final judgment if no contested issue of fact on this matter is

presented to the jury.”). Also, an appellee’s attempt to condition consideration of a

cross-point on the event that the appellate court reverses the trial court’s judgment

is ineffective to limit or condition the cross-appeal, and once a cross-point is

presented to an appellate court, it is before the court for all purposes. See Unitarian

23
Universalist Serv. v. Lebrecht, 670 S.W.2d 402, 403 (Tex. App.—Corpus Christi

1984, writ ref’d n.r.e.). 13

Standard of Review and Applicable Law

We review grants of summary judgment de novo. Helena Chem. Co. v. Cox,

664 S.W.3d 66, 72 (Tex. 2023); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481

(Tex. 2015). In our review we take as true all evidence favorable to the non-movant,

indulging every reasonable inference in favor of the non-movant, and resolving any

doubts in the non-movant’s favor. See Helena Chem. Co., 664 S.W.3d at 73; Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We construe the

Defendants’ motion for summary judgment to be a combined traditional and no-

evidence summary judgment motion. See Tex. R. Civ. P. 166a(c), (i).

To defeat a no-evidence motion, the non-movant must produce evidence

raising a genuine issue of material fact as to the challenged elements. See Tex. R.

Civ. P. 166a(i) (stating that the trial court must grant a no-evidence motion for

summary judgment “unless the respondent produces summary judgment evidence

raising a genuine issue of material fact[]”); Helena Chem. Co., 664 S.W.3d at 72. A

genuine issue of material fact exists if the evidence “‘rises to a level that would

13
See also Hutchison v. Union Pac. Res. Co., No. 03-01-00196-CV, 2001 Tex.
App. LEXIS 7292, at *10 (Tex. App.—Austin Nov. 1, 2001, pet. denied) (affirming
the trial court’s summary judgment on appellee’s cross-point without deciding other
points or cross-points where the holding on the cross-point is dispositive of the
appeal, citing Tex. R. App. P. 47.1).
24
enable reasonable and fair-minded people to differ in their conclusions.’” First

United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017)

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

The evidence does not create an issue of material fact if it is “‘so weak as to do no

more than create a mere surmise or suspicion’” that the fact exists. Id. (quoting Kia

Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)). “Both direct and

circumstantial evidence may be used to establish any material fact.” Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). The affidavit of an interested party

can be sufficient to create a fact issue requiring denial of summary judgment. See

Kirkwood v. Jefferson Cnty., No. 09-16-00337-CV, 2017 Tex. App. LEXIS 9123, at

**5-6 (Tex. App.—Beaumont Sept. 28, 2017, no pet.) (mem. op.); see also Tex. R.

Civ. P. 166a(c) (“A summary judgment may be based on uncontroverted testimonial

evidence of an interested witness [] if the evidence is clear, positive and direct,

otherwise credible and free from contradictions and inconsistencies, and could have

been readily controverted.”). A party moving for traditional summary judgment

meets its burden by proving that there is no genuine issue of material fact and it is

entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c).

A plaintiff asserting a breach-of-contract claim must prove (1) the existence

of a valid contract; (2) the plaintiff performed or tendered performance as the

contract required; (3) the defendant breached the contract by failing to perform or

25
tender performance as the contract required; and (4) the plaintiff sustained damages

as a result of the breach. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479,

501 n.21 (Tex. 2018) (citing Tamuno Ifiesimama v. Haile, 522 S.W.3d 675, 685

(Tex. App.—Houston [1st Dist.] 2017, pet. denied)). “The standard of proof for an

agreement is straightforward. A contract is established when proven by a

preponderance of the evidence that an offer is accepted, accompanied by

consideration.” See Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew

& Rental Tools, Inc., 246 S.W.3d 42, 71 (Tex. 2008) (citing Fed. Sign v. Tex. S.

Univ., 951 S.W.2d 401, 408 (Tex. 1997)). In determining whether an oral contract

exists, we look to the communications between the parties and the actions and

circumstances surrounding those communications. Porter-Garcia v. Travis Law

Firm, P.C., 564 S.W.3d 75, 87 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).

Analysis

We begin by noting that, in reviewing the trial court’s rulings on Defendants’

motion for summary judgment, we do not consider Defendants’ arguments that rely

on allegations made by LightPoint in earlier-filed petitions because those petitions

were not the live pleadings at the time the motion was filed. The live pleading at the

time the motion for summary judgment was filed was LightPoint’s Fourth Amended

Petition. An amended pleading generally supersedes and takes the place of prior

pleadings. See FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Hous. Sys., 255

26
S.W.3d 619, 633 (Tex. 2008) (“Our rules provide that amended pleadings and their

contents take the place of prior pleadings.”) (citing Tex. R. Civ. P. 65).

We also note that, both parties filed objections to the summary judgment

evidence presented by the other party, however our appellate record includes no

ruling by the trial court on any of those objections. Also, the parties do not raise or

address any evidentiary objections in their appellate briefs. The same evidentiary

standards that apply in trials also apply to the admissibility of summary judgment

evidence, but the rules of error preservation also apply. See Seim v. Allstate Tex.

Lloyds, 551 S.W.3d 161, 163-64 (Tex. 2018). So, even if a party objects to an

opponent’s summary judgment evidence in the trial court, that evidence remains part

of the summary judgment evidence unless an order sustaining the objections is

reduced to writing, is signed, and is entered of record. See id. at 164, 166. Without

both an objection and a ruling, the complained-of evidence remains part of the

summary judgment record and should be considered by a court of appeals in

reviewing the trial court’s judgment. See Fieldturf USA, Inc. v. Pleasant Grove

Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022) (citing Tex. R. App. P. 33.1(a);

Seim, 551 S.W.3d at 166).

It is undisputed that (1) the parties entered into the PSA on December 13,

2017, (2) the PSA states it is for “Preliminary Engineering for Racetrack Site -

Willis, Texas[,]” (3) a written copy of PSA was signed by Michael Mathena for

27
LightPoint and Trevor King on behalf of DMX and Denmax. The parties dispute

what happened after the PSA was signed. According to LightPoint, the parties later

entered into a second agreement that LightPoint calls the “Final Engineering

Agreement.” LightPoint contends that at a meeting in February of 2018, Defendants

proposed a land-for-services payment arrangement whereby LightPoint would

provide full engineering and design services, and in return, Defendants would give

LightPoint a lot at the site being developed. Mathena’s affidavit states as follows:

[I]n February 2018, the President of Denmax, Trevor King, asked me
if LightPoint could provide final engineering, design, and coordination
services for the same piece of property. We had a meeting on or about
February 15, 2018, to discuss the new work. In attendance were Trevor
King, who is the President/Director of Denmax and also a current
Director of Battle River Holdings, Inc., Marion Gerhardt and General
Counsel for Denmax and representative of the other Defendants as well.
I was also present, along with Jerry McCrorey, on behalf of LightPoint.
At that meeting, Trevor King suggested that, in lieu of paying for
LightPoint’s services, it could deed one of the lots on the property, after
the new work was completely done and the site was developed. We
liked the idea since LightPoint was looking for a new location for its
own offices. We viewed the layout of the property and discussed the
specific lot that was to be provided by Defendants in exchange for the
new work. Trevor King pointed to the specific lot in the northeastern
corner of the preliminary layout we had done as part of the initial
consultation (the “Lot”). We came to an agreement to provide final
engineering and design services in exchange for the Lot.

Mathena’s affidavit also asserts that, at some point, due to issues between

Defendants and the City of Willis, Defendants learned the City would not allow

Denmax to develop the property with multiple lots, which frustrated the Land-for-

Services agreement. According to Mathena’s affidavit, Marion Gerhardt, General
28
Counsel for Defendants, then assured Mathena that LightPoint would be paid for its

services to date and that Defendants still needed LightPoint’s continued services. In

support of this assertion, LightPoint attached a copy of an email dated August 1,

2018, from Gerhardt to Mathena that stated in relevant part:

As discussed with Mike, we need to modify the plans for the Willis site
due to the city problems.

We are sorry that this likely means there will be only one building on
the site - but are open to suggestions of a way to get a second building
on the property for you guys.

Of course, we need your services to redo the plans etc[.] for the site but
first Trevor would like you to know that you will be paid for services
to date upon receipt of your invoice.

In contrast, the Defendants contend they did not receive an invoice from

LightPoint until March of 2019 for $215,000, although the parties disagree about

whether this invoice—and subsequent alleged revisions to this invoice—were for

“Preliminary Engineering” or for “Engineering Design.” The parties also disagree

about whether this invoice and the work covered by the invoice were part of or

controlled by the PSA. The Defendants argue on appeal that the PSA controls all

work performed and that the additional services were covered by the PSA, that the

PSA expressly provides LightPoint may invoice Denmax as outlined in the

attachments to the PSA, and in accordance with the rate sheet also attached to the

PSA. The Plaintiff argued in its Response to the MSJ that the PSA was for

preliminary work for a flat fee of $3,500, that they were paid for the preliminary
29
work, and then later the parties agreed that the payment for the additional work

would be Denmax allowing LightPoint to have a lot inside the 32-acre site and on

that lot LightPoint could build a separate office building. After the City notified

Denmax it would not allow Denmax to subdivide and build other structures, on

August 1, 2018, Denmax sent LightPoint an email and agreed that Denmax would

pay LightPoint for all past work and asked LightPoint to send an invoice for that

work, and in the email Denmax asked LightPoint for further work and agreed to pay

for that work.

The summary judgment evidence includes copies of “Construction Plans for

Paving, Drainage & Utilities to Serve Denmax Commercial Development[,]” dated

June 2018 and bearing LightPoint’s name and “Construction Plans for Paving,

Drainage & Utilities to Serve Battle River Site[,]” dated February 2019 and also

bearing LightPoint’s name. LightPoint’s summary judgment evidence also includes

a memo from the Director of Public Works for the City of Willis to Michael

Mathena, stating in part, “The City has reviewed the latest Denmax plans submitted

dated Feb[.] 6, 2019 and we have no additional comments.”

On appeal, as they did in the summary judgment filings, Appellants argue

there was no agreement between the parties other than the PSA. LightPoint argues

on appeal, and in the summary judgment filings, the parties agreed after the PSA

that LightPoint would prepare and provide Final Engineering Services in exchange

30
for a payment that began as a land-for-services arrangement and later changed by

agreement between the parties to an invoice and payment-for-services rendered. The

summary judgment evidence included the PSA, as well as drawings of work

performed by LightPoint for Denmax which were submitted to the City of Willis,

and other items. The August 2018 email which was attached to the summary

judgment evidence submitted by LightPoint is an email from Gerhardt to Mathena,

and it appears to acknowledge the land-for-services provision could not go forward,

it requests an invoice for the work performed and states further services will be

needed, “we need your services to redo the plans[,]” and it indicates Denmax agreed

to pay LightPoint for its services.

Viewing the evidence in the light most favorable to the nonmovant, as we

must, we conclude that the summary judgment evidence created genuine issues of

material fact on whether an agreement existed between the parties, whether the

agreement was the PSA or a subsequent agreement, what the terms of the agreement

included, whether any party materially breached the agreement, and the damages

that resulted from the breach. See Tex. R. Civ. P. 166a(c); Helena Chem. Co., 664

S.W.3d at 73. The scope of the PSA or the application of the fee schedule attached

to the PSA, or the existence of a subsequent agreement between the parties, and the

parties’ intent pertaining to the agreement would be fact issues for the jury. In the

event the engineering services provided by LightPoint were not governed by the

31
PSA, or another agreement, then in the alternative, LightPoint may be entitled to

seek a recovery for unjust enrichment or quantum meruit. See Hill v. Shamoun &

Norman, LLP, 544 S.W.3d 724, 732-33 (Tex. 2018) (quantum meruit is an equitable

remedy based on a promise implied by law to pay for beneficial services rendered

and knowingly accepted and where there is no valid contract covering the services

rendered); Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683-84 (Tex. 2000)

(a claim for unjust enrichment is based on quasi-contract and is based on an

obligation to do justice where no promise was made nor intended and where no

express contract covers the parties’ dispute).

While it is true Appellants denied that the parties ever entered into a valid

enforceable contract for the conveyance of real property, in their response to

LightPoint’s MPSJ, they conceded “a fact question exists regarding whether any

valid, enforceable contract giving rise to ‘a suit on account’ exists between

LightPoint and Denmax[.]” They also argued that, even if such an agreement existed,

LightPoint’s claims for breach of the agreement were barred by the statute of frauds,

by LightPoint’s failure to comply with all conditions precedent, and by LightPoint’s

prior material breach of the PSA agreement.

The statute of frauds requires a signed writing for the conveyance of land. See

Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(4). That said, in some cases, partial

performance may be sufficient to take a contract out of the application of the statute

32
of frauds when the party seeking to enforce the agreement has partially performed

thereunder. See Ward v. Sponseller, No. 09-19-00441-CV, 2021 Tex. App. LEXIS

9473, at *10 (Tex. App.—Beaumont Nov. 24, 2021, no pet.) (mem. op.) (citations

omitted). Here LightPoint is not seeking to force Denmax to convey a lot within the

32-acre site, nor is LightPoint saying there was a breach of the agreement because

Denmax failed to make the conveyance of a lot. Rather, LightPoint contends

Denmax expressly agreed to pay LightPoint for services performed by LightPoint or

its subcontractors, and Denmax has refused to pay for LightPoint’s services. So, this

claim would not be governed by section 26.01(b)(4) of the Business and Commerce

Code. See Tex. Bus. & Com. Code Ann. § 26.01(b)(4).

Next, we find the question of whether LightPoint materially breached the

parties’ agreement by a failure to comply with alleged conditions precedent is also

a fact issue, and any nonmaterial failure to perform by LightPoint would not relieve

Appellants from future performance. See Bartush-Schnitzius Foods Co. v. Cimco

Refrigeration, Inc., 518 S.W.3d 432, 436 (Tex. 2017) (explaining that materiality is

a fact issue, and a non-material breach does not excuse future performance); Bright

Now! Dental, Inc. v. Teligistics, Inc., No. 09-09-00221-CV, 2010 Tex. App. LEXIS

3656, at *12 (Tex. App.—Beaumont May 13, 2010, no pet.) (mem. op.) (“The issue

of whether a breach is material is generally a question of fact.”).

33
We conclude that the trial court’s grant of partial summary judgment against

LightPoint on its claim for breach of contract was in error because genuine issues of

material fact exist on that claim. 14 See Tex. R. Civ. P. 166a(c); Helena Chem. Co.,

664 S.W.3d at 73. The evidence presented at trial and the claims submitted to the

jury were necessarily shaped or controlled by the court’s erroneous summary

judgment ruling, which we now reverse. When trial proceedings are premised on an

erroneous summary judgment order, the “prudent course of action is to restore the

parties to the status quo at the time of the summary judgment rulings and begin

anew.” See Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561 S.W.3d

263, 280-81 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); 15 see also Bright

14
We express no opinion on whether LightPoint should prevail on its breach
of contract claim, nor whether LightPoint may also submit alternative claims for
quantum meruit or unjust enrichment in the event the jury finds there was no
contract. And, because we have granted a new trial, we also expressly do not reach
the attorney’s fee issues, or the legal or factual sufficiency issues challenging the
jury’s findings, or the joint and several liability for damages.
15
Citing Associated Air Ctr. LP v. Tary Network Ltd., No. 05-13-00685-CV,
2015 Tex. App. LEXIS 2069, at *23 (Tex. App.—Dallas Mar. 4, 2015, no pet.) (mem.
op.) (“As long as there is a probability a case has for any reason not been fully
developed, an appellate court has the discretion to remand rather than render a
decision.”); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex.
App.—Houston [1st Dist.] 2008), abrogated on other grounds by Nath v. Tex.
Children’s Hosp., 576 S.W.3d 707, 709-10 (Tex. 2019) (remanding case for new trial,
despite legal sufficiency issues, when sanctions ordered by trial court prevented full
development of case); Walden v. Affiliated Comput. Servs., Inc., 97 S.W.3d 303, 328
(Tex. App.—Houston [14th Dist.] 2003, pet. denied); Turboff v. Gertner, Aron &
Ledet Invs., 763 S.W.2d 827, 832 (Tex. App.—Houston [14th Dist.] 1988, writ
denied) (reversing and remanding for new trial because erroneous pretrial summary
judgment “limited to an indeterminate degree the evidence which was allowed
34
Now! Dental, Inc., 2010 Tex. App. LEXIS 3656, at **14-15 (reversing and

remanding for a new trial where trial court’s error in granting summary judgment

for appellee prevented appellant from trying its breach of contract claim); Gen. Star

Indem. Co. v. Creek Vill. Apartments Phase V, Inc., 152 S.W.3d 733, 738 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (reversing final judgment following jury

trial based on an erroneous pretrial partial summary judgment ruling). “[W]here a

case has not been fully developed, and where it has been tried on the wrong theory,

the judgment of the appellate court should be one of remand and not one of

rendition.” Jackson v. Hall, 214 S.W.2d 458, 459 (Tex. 1948); see also U.S. Fire

Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971) (explaining that, where a case has

not been fully developed or “in the interest of justice[,]” an appellate court may

remand for a new trial rather than render judgment).

We sustain Appellee’s second cross-issue on appeal, we reverse the trial

court’s Order on Defendants’ Motion for Summary Judgment as to Plaintiff

LightPoint’s claim for breach of contract only, 16 and we remand the cause for a new

trial consistent with this opinion. See Bright Now! Dental, Inc., 2010 Tex. App.

before the jury[]”; declining to consider appellants’ issues attacking sufficiency of
evidence because of limitations on evidence due to erroneous ruling).
16
LightPoint has waived any challenge to the grounds it failed to address on
appeal. See Tex. R. App. P. 33.1(a); Nixon Fam. P’ship, LP v. Jet Lending, LLC, No.
09-20-00201-CV, 2022 Tex. App. LEXIS 5544, at *29 (Tex. App.—Beaumont Aug.
4, 2022, pet. denied) (mem. op.).
35
LEXIS 3656, at *15. We need not address Appellants’ issues one through four nor

Appellee’s cross-issues one and three, and we express no opinion on the merits of

these challenges. See Tex. R. App. P. 47.1.

REVERSED AND REMANDED.

LEANNE JOHNSON
Justice

Submitted on January 25, 2024
Opinion Delivered March 7, 2024

Before Golemon, C.J., Johnson and Wright, JJ.

36