Steven E. Knowles and Gina S. Knowles v. Richard Dunham and Cheryl Dunham--Appeal from 189th District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00267-CV
Steven E. KNOWLES and Gina S. Knowles,
Appellants
v.
Richard DUNHAM and Cheryl Dunham,
Appellees
From the 189th Judicial District Court, Harris County, Texas
Trial Court No. 2001-46027
Honorable Jeff Work, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 24, 2003

REVERSED AND REMANDED

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. 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 & Assocs., Inc., 103 S.W.3d 567, 570 (Tex. App.--San Antonio 2003, no pet.). Accordingly, the Dunhams presented no evidence to conclusively establish that the agreement between the parties was breached, and the trial court erred in granting summary judgment.

The trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Catherine Stone, Justice

1. The cases cited by the Dunhams to support their contention that they were only required to introduce evidence of the written agreement to be entitled to summary judgment are not authoritative. Those cases involved either judgments rendered after the completion of a trial or judgments involving a claim on a note. See Schalager v. Harris, 805 S.W.2d 893, 894 (Tex. App.--Corpus Christi 1991, no writ) (trial on note); Harrison v. Leasing Assoc., Inc., 454 S.W.2d 808, 809 (Tex. Civ. App.--Houston [14th Dist.] 1970, no writ) (summary judgment on note); Naylor v. Gutteridge, 430 S.W.2d 726, 731-32 (Tex. Civ. App.--Austin 1968, writ ref'd n.r.e.) (trial on note).