TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00899-CV
Craig P. Longhurst and R&H Reefer and Trailer Repair, L.L.C., Appellants
v.
Jeb Raabe, Appellee
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 25DCV351826, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING
MEMORANDUM OPINION
Craig P. Longhurst and R&H Reefer and Trailer Repair, L.L.C. appeal from a
summary judgment granted in favor of Jeb Raabe. We affirm.
BACKGROUND
Raabe, the owner and operator of R&H Reefer and Trailer Repair, LLC (R&H),
sold the company to Longhurst in March 2023. Multiple trailers were included as part of the
sale. The Purchase Agreement provided for a purchase price of $3,150,000 and required
Longhurst and R&H to pay $500,000 up front, followed by payments of $30,090.33 from
May 2023 through March 2033 to satisfy the remaining balance. The parties executed a
Promissory Note secured by a Security Agreement in which Longhurst and R&H pledged as
collateral “All Equipment, Assets, Vehicles, Tools, Customer Accounts, Contracts, Inventory, Accounts Receivable, Books, Records, Information, Intellectual Property, Data, Web Pages,
Furniture, Fixtures, and Customer lists of R & H.”
Longhurst stopped making payments in May 2024. Raabe sent notice of default.
After Longhurst failed to cure the default, Raabe notified Longhurst and R&H that the Note had
been accelerated. Raabe then sought information about the collateral, including accounts
receivable, that he could reclaim pursuant to the Note and Security Agreement’s enforcement
procedures. Longhurst did not pay or provide information. Instead, on October 9, 2024, he sued
Raabe in Harris County, alleging that the value of R&H’s trailers was “grossly inflated and
misrepresented at the time of the agreement” and that Raabe’s actions after Longhurst’s default
were “unlawful.” Based on those premises, Longhurst asserted causes of action for breach of
implied warranty of fitness for a particular purpose, fraudulent misrepresentation, violation of the
Deceptive Trade Practices Act (DTPA), and violation of the Texas Debt Collection Act.
On October 30, 2024, Raabe sued R&H in Bell County for breach of contract and
sought attorney’s fees. Next, he moved to transfer the Harris County suit to Bell County; the
Harris County court granted that motion. Raabe then filed a motion to consolidate the cases. On
June 16, 2025, Raabe filed a traditional and no-evidence motion for summary judgment. The
motion argues that there is no evidence of Longhurst’s “fraud claims,” and that Raabe is entitled
to traditional summary judgment on his claim for breach of contract as well as on all of
Longhurst’s claims against him. Four days later, a notice of hearing was filed which set (1) the
summary-judgment motion, (2) a motion to compel, (3) a motion to dissolve a temporary
injunction, and (4) the motion to consolidate for a hearing on July 11, 2025 at 9:00 a.m.
Longhurst filed responses to the motion to dissolve the temporary injunction and the
summary-judgment motion at 8:14 a.m. on the morning of the hearing.
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The trial court signed orders on July 11 granting the motion to dissolve the
temporary injunction, the motion to consolidate, and the motion to compel; Longhurst was
ordered to respond to outstanding discovery within 7 days of the date of the order. The record is
silent as to whether Longhurst complied. On August 6, the trial court granted Raabe’s motion
for summary judgment without specifying the grounds. Longhurst filed a motion to reconsider,
which was denied. He now appeals.
ANALYSIS
As an initial matter, Raabe asserts that this Court lacks jurisdiction to consider the
appeal because the notice of appeal, filed 98 days after the final judgment was signed, was
untimely. However, Longhurst filed a motion to reconsider, seeking a new trial or modification
of the judgment, which extended the time for filing his appeal to ninety days. See Tex. R. App.
P. 26.1(a). Because Raabe filed his notice of appeal within fifteen days of that deadline, we
imply a motion for extension and grant that motion. See id. R. 26.3 (providing that appellate
court may extend time to file notice of appeal if, within fifteen days after deadline for filing
notice of appeal, party files notice of appeal in trial court and motion to extend time in appellate
court); Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997) (holding that motion for
extension of time to file notice of appeal is implied when appellant, acting in good faith, files
notice of appeal within fifteen-day period allowed by rules of appellate procedure).
Standard of Review
We review the trial court’s summary-judgment ruling de novo. See Zive
v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022); Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004). Under this standard, we view “the evidence in the light most
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favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.” Zive, 644 S.W.3d
at 173.
“A party moving for traditional summary judgment must prove that no genuine
issue of material fact exists and it is entitled to judgment as a matter of law.” Wal-Mart Stores,
Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023); see Tex. R. Civ. P.
166a(c).1 A movant seeking a no-evidence summary judgment must assert that “there is no
evidence of one or more essential elements of a claim or defense on which an adverse party
would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). “The court must grant the
motion unless the respondent produces summary judgment evidence raising a genuine issue of
material fact” on the challenged elements. Id.; see JLB Builders, L.L.C. v. Hernandez,
622 S.W.3d 860, 864 (Tex. 2021) (explaining that “no-evidence motion shifts the burden to the
nonmovant to present evidence raising a genuine issue of material fact supporting each element
contested in the motion”).
“A genuine issue of material fact exists if the evidence ‘rises to a level that would
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
The Texas Supreme Court recently amended Texas Rule of Civil Procedure 166a, but
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“[o]ther than the deadline changes, Rule 166a’s rewrite is not intended to substantively change the law.” Tex. R. Civ. P. 166a (cmt. to 2026 change). The amendments renumbered the rule’s provisions. See 89 Tex. B.J. 286, 289–92 (2026). Because the amendments apply only to summary-judgment motions filed on or after March 1, 2026, and the filing of Raabe’s summaryjudgment motion preceded the amendments, we refer to the provisions of Rule 166a in effect at the time of filing. See id. at 286.
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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)). When a trial court grants a summary-judgment motion without specifying its
grounds for doing so, we affirm the judgment if the movant advanced any meritorious theory in
the trial court. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Discussion
Longhurst raises two issues on appeal, which are the same issues raised in his
motion to reconsider. First, he challenges the trial court’s grant of summary judgment. Second,
he argues that the trial court erred by granting the motion to consolidate, motion to compel, and
motion to dissolve the temporary injunction without oral hearings on these motions.
In his first issue, Longhurst presents three arguments for why the trial court erred
in granting summary judgment.2 He first argues that the trial court granted summary judgment
on a claim not addressed by Raabe’s motion, stating that the motion “failed to set forth and
address the elements for judicial foreclosure.” Raabe’s motion requested, as a remedy and
pursuant to the Purchase Agreement, “foreclosure of Mr. Raabe’s security interest in the
Collateral.” “Judicial foreclosure is a remedy,” not a separate cause of action. Rutledge v.
2 Longhurst’s summary-judgment response, which the trial court did not consider because it was untimely, see Tex. R. Civ. P. 166a(c) (requiring “opposing affidavits or other written response” to be filed “not later than 7 days prior to the date of the hearing” unless the party obtains leave of court), asserted that the trial court erred in granting summary judgment because (1) the no-evidence motion is premature and the discovery deadline in the docket control order had not yet passed, (2) Longhurst and R&H provided more than a scintilla a of evidence in support of their claims, and (3) Raabe did not present more than a scintilla of evidence in support of his claim or conclusively establish each element of an affirmative defense. None of these arguments are reprised in Longhurst’s brief on appeal.
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Leonard, No. 10-07-00376-CV, 2009 WL 1412859, at *3 (Tex. App.—Waco May 20, 2009, no
pet.) (mem. op.). Accordingly, judicial foreclosure was not an unaddressed claim.
Longhurst next objects that Raabe “moved for summary judgment in the wrong
capacity” such that it was error for the trial court to grant “summary judgment in favor of
Appellee on his cause of action for breach of contract, which was only plead[ed] as a
counter-claim against Appellant.” He argues that Raabe moved for summary judgment solely
“as a Defendant in the First Lawsuit” and that “Common sense dictates that a Defendant cannot
move for traditional summary judgment on affirmative relief in his capacity as a Defendant
alone.” Although the motion identified Raabe as “Defendant, Jeb Raabe,” the motion stated that
“Raabe is entitled to summary judgment as to his breach of contract claims” and presented
supporting arguments and evidence. Raabe’s counterclaim for breach of contract in the suit filed
by Longhurst and the claim for breach of contract in the suit he filed are substantively identical.
Particularly after the trial court consolidated these cases, there was no need for Raabe to move
for summary judgment separately on these identical claims. See In re J.Z.P., 484 S.W.3d 924,
925 (Tex. 2016) (recognizing that courts acknowledge substance of relief sought and not
merely form).
Longhurst’s final challenge to the trial court’s grant of summary judgment is that
Raabe has “claims still pending in this case for promissory estoppel, specific performance, and
money had and received.” Raabe’s claims for promissory estoppel and money had and
received were in the alternative to his breach-of-contract claim. See Tex. R. Civ. P. 48
(providing for alternative claims). Having prevailed on his claim for breach of contract, Raabe
was no longer able to seek recovery on his alternative theories. Fortune Prod. Co. v. Conoco,
Inc., 52 S.W.3d 671, 684 (Tex. 2000) (“Generally speaking, when a valid, express contract
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covers the subject matter of the parties’ dispute, there can be no recovery under a quasi-contract
theory.”). And like judicial foreclosure, “[s]pecific performance is not a separate cause of action
but is instead an equitable remedy.” Maxey v. Maxey, 617 S.W.3d 207, 225 (Tex. App.—
Houston [1st Dist.] 2020, no pet.). Thus, promissory estoppel, specific performance, and money
had and received are not pending claims. We overrule Longhurst’s first issue.
In his second issue, Longhurst contends that the trial court erred by granting the
motion to consolidate, motion to compel, and motion to dissolve the temporary injunction
without oral hearings on these motions. He does not cite any authority for this argument, does
not contend the trial court reached the wrong result by granting any of these motions, and does
not explain how the outcome of any of these motions probably caused the rendition of an
improper judgment. See Tex. R. App. P. 38.1(i) (requiring that briefs include argument for
contentions made, with appropriate citations to authorities and to record); id. R. 44.1
(harmless-error rule). He has therefore waived this issue due to inadequate briefing.
CONCLUSION
We affirm the trial court’s order granting summary judgment.
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Theofanis and Crump
Affirmed
Filed: August 31, 2026
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