Daniel D. Garcia v. Eduardo J. Garcia--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00647-CV

Daniel D. GARCIA,

Appellant

v.

Eduardo J. GARCIA,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-11613

Honorable John D. Gabriel, Jr. , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Sarah B. Duncan , Justice

Karen Angelini , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: July 5, 2006

AFFIRMED

Daniel Garcia sued his former attorney, Eduardo Garcia, alleging breach of contract. The trial court granted Eduardo's motion for a no-evidence summary judgment. Daniel appeals.

Standard of review

A party may move for a no-evidence summary judgment on the ground 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 burden then shifts to the respondent to produce summary judgment evidence raising a genuine issue of material fact on the challenged elements. Id.; see S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We review the trial court's granting of a motion for summary judgment under a de novo standard. See Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.--San Antonio 1997, writ denied).

Discussion

In March of 2000, Daniel was charged with murdering his wife. On May 27, 2000, Daniel hired Eduardo to represent him in that criminal proceeding. Pursuant to an employment contract, Daniel agreed to pay Eduardo $50,000 for such representation. According to Daniel, he also employed two private investigators to assist Eduardo in gathering information relating to the case. After becoming dissatisfied with Eduardo's progress on the case, Daniel replaced him with other counsel. On July 30, 2003, Daniel filed suit against Eduardo, alleging breach of contract and claiming entitlement to recovery of the payments he had made to Eduardo. Almost two years later, Eduardo filed a motion for a no-evidence summary judgment. In his motion, Eduardo asserted there was no evidence on each element of Daniel's breach of contract claim, including that there was no evidence of a breach.

In Daniel's response to the motion, Daniel submitted a copy of the employment contract and copies of checks payable to Eduardo totaling $50,000. However, Daniel presented no evidence that Eduardo breached the contract. Instead, in his response, Daniel states such evidence "is best shown by affidavit or testimony of people who were witnesses to [Eduardo's] lack of performance." No affidavits were submitted with the response. Although Daniel was not required to "marshal" his proof, he was required to "point out evidence that raises a fact issue on the challenged elements." Tex. R. Civ. P. 166a cmt. Because Daniel failed to present any evidence of Eduardo's breach of the contract, the trial court did not err in granting Eduardo's motion for a no-evidence summary judgment.

Daniel also contends "the hearing court violated [his] state and federal constitutional right to trial by jury by dismissing the case." However, a party is entitled to a jury trial only on the factual elements of his case. See Millhouse v. Wiesenthal, 775 S.W.2d 626, 628 (Tex. 1989). Because Daniel failed to present any evidence of Eduardo's breach of the contract, there was nothing to submit to a jury and Daniel cannot properly say he was deprived of his constitutional right to a jury trial. See Querner Truck Lines v. Alta Verde Indus., 747 S.W.2d 464, 469 (Tex. App.--San Antonio 1988, no writ); Wyche v. Works, 373 S.W.2d 558, 561 (Tex. Civ. App.--Dallas 1963, writ ref'd n.r.e.).

Conclusion

Accordingly, we overrule Daniel's issues on appeal and affirm the trial court's judgment.

Karen Angelini , Justice