Superior Development Group, LLC and Michael Cowart v. Tami Knox

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00241-CV
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SUPERIOR DEVELOPMENT GROUP, LLC
AND MICHAEL COWART, Appellants

V.

TAMI KNOX, Appellee

__________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 23-09-12674-CV
__________________________________________________________________

MEMORANDUM OPINION

Superior Development Group, LLC and Michael Cowart (collectively,

“Appellants”) appeal the trial court’s final summary judgment in favor of Tami

Knox. On appeal, Appellants complain that the trial court erred in failing to apply

the Texas Residential Construction Liability Act (TRCLA), erred in denying

Appellants’ motion to withdraw deemed admissions pursuant to Texas Rule of Civil

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Procedure 198.3, erred in granting summary judgment on Knox’s breach of contract,

Texas Deceptive Trade Practices Act (DTPA), and Texas Construction Trust Fund

Act (TCTFA) claims, and erred in awarding additional damages. Because Knox

failed to conclusively establish the unliquidated damages awarded in the summary

judgment, we reverse and remand.

Background

Knox’s petition asserts she and Superior entered into a contract under which

she was to pay Superior $116,500 to remodel her patio and construct a pool. Knox

claims Superior’s work caused her roof to leak, resulting in water damage to the

interior of her home. She also claims the concrete foundation Superior constructed

was insufficient to support the patio’s structure. According to Knox, Superior refused

to correct these problems, so she terminated the contract and sustained damages

consisting of the cost to repair the damage and complete the project. Knox’s petition

asserts several claims against Appellants, including breach of contract, violations of

the DTPA—Consumer Protection Act, and misappropriation of construction funds

in violation of the TCTFA. See Tex. Bus. & Comm. Code Ann. §§ 17.41-.49; Tex.

Prop. Code Ann. §§ 162.001-.007.

After Superior and Cowart answered the lawsuit, Knox served each a set of

Requests for Admissions which went unanswered. Relying on Appellants’ deemed

admissions, the contract, and her own affidavit, Knox filed a traditional motion for
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summary judgment asserting the evidence conclusively establishes all the elements

of her claims for breach of contract and violations of the DTPA and TCTFA. See

Tex. R. Civ. P. 166a(c). 1 Regarding damages, Knox’s affidavit states,

The cost to repair the deficient concrete foundation and the outdoor
patio and complete the work was $32,692.00. The cost to complete the
pool was $40,000.00. The cost to complete the electric scope of work
on the outdoor patio cover was $6048.00. The cost to repair the interiors
of the home was $5,100.00. The total cost to complete the work totals
$83,840.00. I paid Superior Development the sum of $71,400.00 of the
total contract sum of $116,500.00. Attached to this affidavit are
invoices I have paid to complete the work totaling $83,840.00.
Accordingly, I have suffered damages of $38,740.00 for completing the
work above the contract price of $116,500.

Appellants filed a response and a supplemental response. The trial court

signed a Final Summary Judgment awarding Knox $38,740 in actual damages and

$116,200 in additional damages, with additional awards for attorney fees, costs and

interest. Appellants filed a combined motion for new trial and motion to withdraw

deemed admissions. After the motion was denied, Appellants timely filed this

appeal.

Analysis

Appellants challenge the summary judgment on several grounds, including

that Knox’s damages “were not supported by any document or expert testimony

Rule 166a was amended in March 2026, but we refer to the version in effect
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when the motion was filed.
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[and] are also insufficiently supported.” In addition to complaining that no invoices

were actually attached to Knox’s affidavit, Appellants quote the following passage

from Santacruz v. Allstate Texas Lloyd’s, Inc.:

In a similar vein, a party seeking to recover for the cost of repairs must
present competent evidence so that the trier of fact is justified in finding
that the repairs are necessary and that the cost of the repairs is
reasonable. Perry Homes v. Alwattari, 33 S.W.3d 376, 385 (Tex. App.—
Fort Worth 2000) (holding that plaintiffs’ son’s testimony about the cost
and nature of the repairs, while perhaps sufficient to show that the
repairs were necessary, was not sufficient to support the jury’s finding
that the expenses were reasonable).

No. 3:12-CV-02553-BK, 2013 WL 3196535, at *5 (N.D. Tex. June 25, 2013), aff’d

in part, rev’d in part and remanded 590 F. App’x 384 (5th Cir. 2014) (per curiam).

Although Appellants’ summary judgment response does not include an issue

complaining that Knox’s motion fails to provide evidence of reasonableness and

necessity, we nevertheless conclude the issue is properly before us because it

constitutes a challenge to the legal sufficiency of Knox’s motion. See McGinty v.

Hennen, 372 S.W.3d 625, 626 (Tex. 2012) (concluding evidence of repair costs was

legally insufficient to support jury finding in absence of evidence of reasonableness

and necessity). Although Rule 166a(c) generally prevents parties from raising new

issues on appeal, a non-movant may still assert for the first time on appeal that the

movant’s summary judgment evidence is legally insufficient. See Tex. R. Civ. P.

166a(c); Weekley Homes v. Paniagua, 646 S.W.3d 821, 826 (Tex. 2022). “Summary

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judgments must stand on their own merits, and the non-movant’s failure to answer

or respond cannot supply by default the summary judgment proof necessary to

establish the movant’s right.” City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 (Tex. 1979).

Rule 166a(c) provides that a trial court shall render summary judgment if the

evidence “show[s] that, except as to the amount of damages, there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter

of law on the issues expressly set out in the motion[.]” Tex. R. Civ. P. 166a(c). “A

plaintiff moving for summary judgment must conclusively prove all essential

elements of its claim.” LeBlanc v. Lamar State Coll., 232 S.W.3d 294, 298 (Tex.

App.—Beaumont 2007, no pet.). When a plaintiff files a motion for summary

judgment conclusively establishing each element of her claim, the trial court may

grant a partial summary judgment on liability, leaving the amount of damages to be

determined at trial. See Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d

93, 100 (Tex. App.—Dallas 2009, pet. denied); Beck v. W. Houston Airport Corp.,

No. 14-09-00471-CV, 2010 WL 3168394, at *2 (Tex. App.—Houston [14th Dist.]

Aug. 12, 2010, no pet.) (mem. op.). But a summary judgment that awards damages

is appropriate only if the plaintiff conclusively establishes the amount awarded. See

Woody’s Access, LLC v. Harris Cnty. Tax Assessor-Collector, No. 01-21-00469-CV,

2022 WL 904620, at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2022, no pet.)
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(mem. op.) (“A plaintiff seeking a summary judgment awarding damages on its

claim must conclusively establish its damages.”); McRay v. Dow Golub Remels &

Beverly, LLP, 554 S.W.3d 702, 705 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

(same).

We have observed that it is rarely appropriate for unliquidated damages to be

awarded by way of summary judgment. Kennedy v. Aattaboy Termite & Pest

Control, Inc., No. 09-19-00109-CV, 2021 WL 1567225, at *3 (Tex. App.—

Beaumont Apr. 22, 2021, no pet.) (mem. op.). “[L]iquidated damages exist ‘when

the parties to a contract have agreed in advance on the measure of damages to be

assessed in the event of default.’ In contrast, unliquidated damages are damages ‘that

have not been previously specified or contractually provided for.’” Id. (quoting

Bryan A. Garner, A Dictionary of Modern Legal Usage 1530 (2d ed. 1995)). Because

the contract in this case does not provide an agreed amount of damages upon breach,

the damages awarded in the summary judgment are unliquidated, and the award can

be affirmed on appeal only if the amount awarded was conclusively established by

the evidence. See id.

The only summary judgment exhibit mentioning damages is Knox’s affidavit

in which she calculates her damages by adding the amounts she paid to repair the

damage from the roof leak ($5,100) and the amounts she paid to complete the project

after she terminated Superior ($32,692 for the foundation, $40,000 for the pool, and
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$6,048 for the patio cover) to arrive at the sum of $83,840 that she paid in addition

to the $71,400 she had already paid Superior under the contract. The affidavit states

Knox sustained damages of $38,740, the amount she paid in excess of the contract

price of $116,500. Implicit in the affidavit is the unstated, but appropriate,

calculation that since the contract price was $116,500 and Knox paid $71,400, there

was an unpaid balance of $45,100 under the contract, and Knox subtracted this

$45,100 figure from the $83,840 she paid for repairs and completion to arrive at

$38,740 in damages.

The Texas Supreme Court has recognized that “the cost to complete or repair

less the unpaid balance on the contract price” is an appropriate measure of damages

in a claim for breach of a construction contract. See McGinty, 372 S.W.3d at 627.

These are known as “remedial” damages. Id. However, “[a] party seeking to recover

remedial damages must prove that the damages sought are reasonable and

necessary.” Id. “Evidence of the amounts charged and paid, standing alone, is no

evidence that such payment was reasonable and necessary.” Mustang Pipeline Co.

v. Driver Pipeline Co., 134 S.W.3d 195, 200-01 (Tex. 2004). “[A] damage award

based solely on the cost of repair or completion cannot be sustained absent some

other evidence that the cost is reasonable.” Tubal Cain Indus., Inc. v. J.W. Garrett &

Son, Inc., No. 09-23-00368-CV, 2025 WL 3482858, at *5 (Tex. App.—Beaumont

Dec. 4, 2025, no pet.) (mem. op.). This rule applies in the DTPA context as well. See
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Perry Homes v. Alwattari, 33 S.W.3d 376, 385 (Tex. App.—Fort Worth 2000, pet.

denied) (“To recover out-of-pocket expenses or costs paid for repairs, the Alwattaris

were required to prove the amounts paid were both reasonable and necessary.”).

Even if Knox’s affidavit constitutes some evidence that it was necessary for

Knox to pay other contractors to repair the water damage and complete the project,

Knox provided the trial court no evidence that the repair and completion costs

reflected in her affidavit were reasonable. As the party moving for summary

judgment, Knox failed to meet her burden to conclusively establish the amount of

her damages, an essential element of her breach of contract and DTPA claims.

Therefore, we conclude Knox failed to conclusively establish the amount of damages

recoverable under either theory.

Appellants also challenge the award under the TCTFA on several grounds

including that Knox never explained how her $38,740 damage figure could have

been caused by a violation of the TCTFA. We need not decide whether remedial

damages are recoverable under the TCTFA because on the record before us, Knox

provided the trial court no evidence of any measure of damages other than remedial

damages, and we have already concluded the evidence was legally insufficient to

support the amount awarded. Therefore, we conclude Knox failed to conclusively

establish the damage element of her TCTFA claim.

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Regardless of the theory or theories under which Knox was awarded damages

in the summary judgment, she was required to have provided the trial court

conclusive evidence of such damages, and having elected to do so solely with

evidence of remedial damages, she was required to conclusively prove not only the

amounts she paid for repairs and completion but also that the amounts were

reasonable. Because she failed to do so, we must reverse the damages awarded in

the summary judgment. See Kennedy, 2021 WL 1567225, at *3 (We reversed the

summary judgment because the plaintiff “failed to support its traditional motion with

conclusive proof on the amounts it recovered in the judgment.”). And because we

may not remand for a trial solely on liquidated damages when liability is contested,

we must reverse the summary judgment in its entirety and remand this case to the

trial court for further proceedings on all issues. See id.; Tex. R. App. P. 44.1(b) (“The

court may not order a separate trial solely on unliquidated damages if liability is

contested.”); Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d 527, 545 (Tex.

App.—Houston [14th Dist.] 2013, no pet.) (“[Rule 44.1(b)] applies when we reverse

a summary judgment because of the plaintiff’s failure to conclusively prove

damages.”).

We sustain Appellants’ third, fourth and fifth issues challenging the

sufficiency of the evidence supporting the trial court’s summary judgment on breach

of contract, DTPA and TCTFA claims, and we remand to the trial court for further
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proceedings on all issues. We need not address Appellants’ other issues as they would

afford no greater relief. See Tex. R. App. P. 47.1.

REVERSED AND REMANDED.

KENT CHAMBERS
Justice

Submitted on March 12, 2026
Opinion Delivered May 14, 2026

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

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