Albritton v. Henry S. Miller Co.

• Decision Date: 02 September 1980
• Docket Number: No. 20378,20378
• Citation: 608 S.W.2d 693
• Parties: John W. ALBRITTON, III, Appellant, v. HENRY S. MILLER COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 693

608 S.W.2d 693

John W. ALBRITTON, III, Appellant, v. HENRY S. MILLER COMPANY, Appellee.

No. 20378.

Court of Civil Appeals of Texas, Dallas.

Sept. 2, 1980.

Rehearing Denied Oct. 21, 1980.

Robert W. Caston, Caston & Stone, Hurst, for appellant.

Ronald L. McKinney, Hoppenstein & Prager, Dallas, by Richard O. Faulk, Dallas, for appellee.

Before AKIN, CARVER and STOREY, JJ.

STOREY, Justice.

Defendant John W. Albritton, III, appeals from a summary judgment granted plaintiff Henry S. Miller Co. The suit arose out of a contract for the sale of land under the terms of which defendant, the buyer, was obligated to pay plaintiff a broker's commission. At closing of the contract of sale defendant and plaintiff agreed in writing to defer payment of the commission, but in all other respects the contract was closed in accordance with its terms and defendant accepted conveyance of the land. In answer to plaintiff's suit, defendant alleged that he had been induced to enter into the contract of sale by plaintiff's representation that it had an exclusive listing contract on the land. Defendant complains on appeal that plaintiff's motion for summary judgment was insufficient as a matter of law because it did not expressly present to the court all of the essential elements of plaintiff's cause of action. Defendant also complains that a fact issue was raised on his defense of fraud in the inducement. We cannot agree with defendant's contentions, and therefore affirm the judgment.

In support of his contention that plaintiff's motion for summary judgment is insufficient as a matter of law, defendant reads Tex.R.Civ.P. 166-A(c) to require that in order to "expressly present" an issue to the court the issue must be specifically set forth in the motion. Accordingly, defendant argues that plaintiff's motion must have specified execution of the contract, the contractual provision requiring payment, plaintiff's performance, and defendant's failure to perform. As authority for this interpretation, defendant relies on the following statement in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979): "The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law."

Rule 166-A may not be interpreted in the manner urged by defendant, and Clear Creek Basin Authority does not suggest such an interpretation. Rule 166-A(c) provides that "(t)he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits ... show that ... there is no genuine issue as to a material fact...." It is clear therefore, that issues are "expressly presented" by all of the summary judgment evidence presented to and considered by the court. Here the obligation to pay the commission was set out in the contract and the contract was before the court as a part of defendant's deposition testimony. Its execution was acknowledged by defendant's testimony, and, as well, by his failure to deny execution as required by Tex.R.Civ.P. 93. Plaintiff's performance is not in dispute and defendant's pleadings admit his own failure to perform. All of the essential elements were therefore "expressly presented" and the court was authorized to rule on them as a matter of law...