Opinion
No. 11-07-00149-CV
Opinion filed December 4, 2008.
On Appeal from County Court at Law, Midland County, Texas, Trial Court Cause No. CCO 8469.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
Walter R. Hunter, appellant, appeals from the trial court's judgment granting summary judgment and ordering that he recover nothing from Clarence Johnson d/b/a Clarence's Pump Field Service Supply, appellee. We affirm.
Background Facts
On December 22, 1995, Hunter filed suit against Johnson for breach of contract. Hunter alleged that on May 1, 1989, he and Johnson entered into an agreement under which Hunter was to invest $10,000 in Johnson's business in exchange for interest. The written agreement provided that the primary term of the loan was for one year, beginning on May 1, 1989. Hunter alleged that Johnson breached the contract by failing to pay him interest and other monies resulting from the agreement.
Johnson filed a motion to dismiss asserting that Hunter failed to state a cause of action. The trial court granted the motion to dismiss. Hunter filed an appeal in the Eighth Court of Appeals. The Eighth Court of Appeals reversed and remanded the case, holding that Hunter was not provided an opportunity to amend his pleadings before his case was dismissed. Hunter v. Johnson, 25 S.W.3d 247 (Tex.App.-El Paso 2000, no pet.).
After the case returned to the trial court, Johnson filed an amended answer. In his answer, he raised the affirmative defenses of statute of limitations, laches, and statute of frauds. Johnson also asserted several special exceptions stating that Hunter's pleadings failed to give notice of facts, circumstances, or legal theories that would entitle him to recovery for his claims. The trial court entered an agreed order sustaining the special exceptions and allowing Hunter to amend his pleadings. Hunter amended his pleadings.
Johnson then filed a motion for summary judgment asserting that Hunter's claims were barred by the statute of limitations. The trial court granted Johnson's motion for summary judgment stating that there was no material issue of fact and that Hunter's claims were barred by the statute of limitations. Hunter filed a motion for new trial asking the court to reconsider its ruling on the motion for summary judgment. The trial court denied the motion.
Issue on Appeal
In one issue, Hunter asserts that the trial court erred and abused its discretion in granting Johnson's motion for summary judgment and in denying Hunter's motion for new trial.
Analysis
A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex. 1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
In order to prevail upon a motion for summary judgment based upon an affirmative defense, the movant must come forward with summary judgment evidence for each element of the affirmative defense. Am. Tobacco Co., 951 S.W.2d at 425; Nichols v. Smith, 507 S.W.2d 518 (Tex. 1974). If the movant conclusively establishes the defense, then it is incumbent upon the nonmovant to come forward with summary judgment evidence to the contrary. Torres v. W. Cas. Sur. Co., 457 S.W.2d 50 (Tex. 1970).
We review a trial court's denial of a motion for new trial for an abuse of discretion. Williams v. Colthurst, 253 S.W.3d 353, 366 (Tex.App.-Eastland 2008, no pet.). A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or when it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Johnson argues in his motion for summary judgment that Hunter's claim is barred by the statute of limitations. A person must bring a claim on a breach of contract, debt, or fraud no later than four years after the cause of action accrues. TEX . CIV. PRAC. REM . CODE ANN. § 16.004 (Vernon 2002); Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999).
The contract that is the subject of this suit states that it is for a term of one year beginning on May 1, 1989. Hunter claims in his petition that he fully performed under the agreement but that Johnson breached the agreement by failing to pay interest and other monies under the agreement. Hunter's cause of action accrued on May 1, 1990, the date on which the term of the agreement expired. Therefore, suit must have been brought before May 1, 1994. Hunter filed his original petition on December 22, 1995. Hunter's claims are barred by the statute of limitations.
Hunter offers no evidence to show why the statute of limitations should not apply in this case. He states in his response to Johnson's motion for summary judgment that he is ready to call material witnesses to support his claims and that he will testify under oath as to the sequence of events that led up to the filing of the suit. However, he neither offers any of this evidence with his response nor shows how the evidence would overcome the statute of limitations. The trial court did not err in granting the summary judgment. Because the trial court's ruling on the motion for summary judgment was not error, the denial of Hunter's motion for new trial was not an abuse of discretion. We overrule Hunter's issue on appeal.
Conclusion
We affirm the judgment of the trial court.