Knowles v. Dunham

• Decision Date: 24 September 2003
• Docket Number: No. 04-03-00267-CV.,04-03-00267-CV.
• Parties: Steven E. KNOWLES and Gina S. Knowles, Appellants v. Richard DUNHAM and Cheryl Dunham, Appellees.
• Court: Texas Court of Appeals

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Steven E. KNOWLES and Gina S. Knowles, Appellants v. Richard DUNHAM and Cheryl Dunham, Appellees.

No. 04-03-00267-CV.

Court of Appeals of Texas.

Filed September 24, 2003.

From the 189th Judicial District Court, Harris County, Texas, Trial Court No. 2001-46027, Honorable Jeff Work, Judge Presiding.

REVERSED AND REMANDED.

Sitting: Catherine Stone, Justice, Paul W. Green, Justice, Karen Angelini, Justice.

MEMORANDUM OPINION

Catherine Stone, Justice

Steven E. and Gina S. Knowles (collectively the "Knowles") appeal a summary judgment granted in favor of Richard and Cheryl Dunham (collectively the "Dunhams"). The Knowles raise six issues on appeal relating to the trial court's granting of summary judgment on the Dunhams' breach of contract claim and the trial court's award of attorneys' fees. Because the Dunhams did not conclusively establish their entitlement to summary judgment, we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.

Under Texas summary judgment law, the party moving for summary judgment carries the burden of establishing that no material fact issue exists as to one or more essential elements of the plaintiff's cause of action and that the movant is entitled to judgment as a matter of law. M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense. Id.

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Summary judgments must stand on their own merits. Id. Accordingly, the nonmovant need not respond to the motion to contend on appeal that the movant's summary judgment proof is insufficient as a matter of law to support summary judgment. Id.

The only summary judgment evidence attached to the Dunhams' motion for summary judgment relates to the issue of attorney's fees. In order to be entitled to summary judgment on their breach of contract claim, the Dunhams were required to conclusively establish each of the elements of their claim, including that the agreement had been breached.(¹) Southwell v. University of the Incarnate Word, 974 S.W.2d 351, 355 (Tex. App.—San Antonio 1998, pet. denied) (listing breach of agreement as element of cause of action). Pleadings, even if sworn to, do not constitute summary judgment proof. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Because motions for summary judgment constitute pleadings, statements contained in those pleadings cannot form the basis for summary judgment. Smith v. Hennessey &...