Background
In February 2024, Felipe and Janaina Martignoni contracted with Artistry Homes, LLC, to purchase an unfinished home in Lubbock for $600,000. The contract included construction of a pool and backyard additions, for which the Martignonis paid a combined $130,000 in two installments. Despite those payments, the pool subcontractor filed a mechanic’s lien claiming it was never paid by Artistry Homes. The home was not completed by the contract’s closing deadline, and the Martignonis exercised their contractual option to terminate, received their escrow money back, and purchased a different home.
The Martignonis then sued Artistry Homes for breach of contract, fraud, fraudulent inducement, conversion, negligent misrepresentation, money had and received, and unjust enrichment. Artistry Homes moved for no-evidence summary judgment, challenging the evidentiary sufficiency on each claim. In opposing the motion, the Martignonis submitted an affidavit by Felipe Martignoni — but the affidavit contained a defective jurat. Artistry Homes filed objections to that affidavit and to the Martignonis’ other supporting evidence. The Martignonis did not respond to those objections and did not object to the trial court’s rulings sustaining them. The trial court excluded the evidence, granted no-evidence summary judgment on all claims, and the Martignonis appealed.
The Court’s Holding
The Seventh Court of Appeals affirmed in an opinion by Justice Yarbrough. The dispositive issue was preservation. Under Texas Rule of Appellate Procedure 33.1(a), a party must make a timely objection, request, or motion in the trial court to preserve error for appellate review. Following Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561 (Tex. App.—Amarillo 2013, pet. denied), the court held that a party whose summary judgment evidence is excluded cannot complain on appeal about the trial court’s evidentiary rulings if the party failed to object to the opposing side’s objections or to the trial court’s decision sustaining them. Even an apparently meritorious evidentiary challenge — such as a dispute over affidavit jurat requirements — is forfeited if the record does not reflect that it was raised below.
With the Martignonis’ critical affidavit and supporting documentation excluded from the summary judgment record, the only evidence before the trial court was the home purchase contract, amendments to the contract, Artistry Homes’s discovery responses, and a lien affidavit. Far from raising a genuine issue of material fact, this evidence actually undermined the Martignonis’ claims. Artistry Homes’s discovery responses established that the Martignonis had exercised their contractual termination right, received their earnest money, and then purchased another home. This meant they were not “ready, willing, and able to perform” their own obligations under the contract — a fatal gap in the breach-of-contract claim. The court also rejected the fraud, fraudulent inducement, and unjust enrichment claims for similar evidentiary deficiencies, noting that no evidence remained to support the challenged elements of any claim.
Key Takeaways
- In Texas summary judgment practice, a party must respond to the opposing party’s evidentiary objections and, if overruled, object to the trial court’s ruling — or those evidentiary challenges are forfeited on appeal under Montenegro. Focusing solely on the substance of your evidence and ignoring the procedural mechanics of objections can be fatal.
- A homebuyer who exercises a contractual termination right, accepts a return of earnest money, and purchases a replacement home is generally not “ready, willing, and able” to perform under the original contract — which defeats a breach-of-contract claim against the builder.
- In a no-evidence summary judgment, the nonmovant bears the burden of producing more than a scintilla of evidence on each challenged element. If key supporting evidence is excluded due to procedural default, the remaining record may fall short on all claims simultaneously.
- Affidavit jurats must comply with applicable requirements to be admissible in summary judgment proceedings. Defective jurats are a recurring ground for evidentiary objections in Texas courts; counsel should verify jurat compliance before filing sworn summary judgment evidence.
Why It Matters
This case is a useful reminder that winning a Texas summary judgment fight requires attention to both substance and procedure. The Martignonis may have had meritorious factual arguments — they paid $130,000 for a pool that was never built, and the subcontractor filed a lien establishing that the money never reached them — but procedural default in the trial court stripped those arguments from their appeal. Texas appellate courts consistently apply Montenegro’s preservation rule to summary judgment evidentiary disputes; if you do not object to the exclusion of your evidence at the trial level, the appellate court treats it as if the evidence was never there.
For contractors, homebuilders, and homebuyers involved in construction disputes, the election-of-remedy dimension is also worth noting. Exercising a contractual termination option and accepting an earnest money refund effectively closes the book on breach-of-contract claims arising from the same transaction — at least as to the non-performance claim. Counsel advising clients at the termination stage should assess whether litigation claims remain viable before the client formalizes the termination and receives any refund, because the termination election can undercut the damages theory for any subsequent suit.