When a motion for summary judgment is directed solely to the pleadings, the court must take as true every allegation of the pleading against which the motion is directed. Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.). If the pleading, when liberally construed, is sufficient to show a fact issue, the motion must be overruled. 4 R. McDonald, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 17.26.8 (rev. 1981).
We must accept as true every allegation of the pleadings against which the motion is directed. Trunkline LNG Co. v. Trane Thermal Co., 722 S.W.2d 722, 724 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.); Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.). If the pleadings, when liberally construed, are sufficient to show a material fact issue, the motion must be overruled.
Therefore, we must take as true every allegation of the pleading against which the motion is directed. Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.). If the pleading, when liberally construed, is sufficient to show a fact issue, the motion must be overruled. Abbott v. City of Kaufman, 717 S.W.2d 927, 929 (Tex.App. — Tyler 1986, writ dism'd). Moreover, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the opposing party is entitled to the benefit of every reasonable inference that can properly be drawn in her favor.
When the defendants' motion simply challenges the sufficiency of the plaintiff's petition to allege an enforceable claim, the court must take as true every allegation of the pleading against which the motion is directed. Wood Truck Leasing, Inc. v. American Auto. Ins. Co., 526 S.W.2d 223, 224-225 (Tex.Civ.App. — San Antonio 1975, no writ); Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.). Applying this standard of review, the plaintiff's petition, liberally construed, sets out a cause of action recognized in Texas law; thus, the motion for summary judgment must be overruled. Holmes v. Canlen Management Corp., 542 S.W.2d 199, 201-202 (Tex.Civ.App. — El Paso 1976, no writ); Gottlieb v. Hofheinz, 523 S.W.2d 7, 9 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ dism'd). In this case, the defendants offered no summary judgment proof to negate the plaintiff's allegations of intentional infliction of emotional distress.
In this situation, the reviewing court must accept as true every allegation against which the motion is directed. Abbott v. City of Kaufman, 717 S.W.2d 927, 929 (Tex.App. — Tyler 1986, writ dism'd w.o.j.); Gottlieb v. Hofheinz, 523 S.W.2d 7, 10 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ dism'd w.o.j.); Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.); see also Holmes v. Canlen Management Corp., 542 S.W.2d 199 (Tex.Civ.App. — El Paso 1976, no writ). Furthermore, Malek, as the non-movant, must be given the benefit of every reasonable inference that can be drawn from such allegations. Abbott, 717 S.W.2d at 929.
When, as in this case, a motion for summary judgment is directed solely to the pleadings, the court must take as true every allegation of the pleading against which the motion is directed. Labbe v. Carr, 369 S.W.2d 952 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.); 4 R. McDonald, Texas Civil Practice 17.26.8 (rev. 1981). If the pleading, when liberally construed, is sufficient to show a fact issue, the motion must be overruled.
The distinction has been recognized in many cases. Texas Foundries, Inc. v. International Moulders Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460 (1952); Labbe v. Carr, 369 S.W.2d 952 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.); and Electronic Data Systems Corp. v. Powell, Supra. We conclude, therefore, that although the trial court's fact findings are subject to review only for legal and factual insufficiency of evidence, the court's construction of restrictive covenants and its determination of the proper remedy for breach of such covenants are matters of law for our decision.
The petition to which the motion is directed is to be construed most liberally in favor of the pleader, and such petition is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. Labbe v. Carr, Tex.Civ.App., nre, 369 S.W.2d 952; General Plywood Corp. v. Collins, Tex.Civ.App., nwh, 414 S.W.2d 224; Garza v. Perez, Tex.Civ.App., nwh, 443 S.W.2d 855. Plaintiffs alternative plea alleged Riggs Properties, Inc., the landowner was an alter ego of James F. Riggs the contractor, and that James Riggs effectively controlled the corporation, and that the contract between Riggs Properties, Inc. and James F. Riggs was a sham contract. If plaintiff can prove such contract was a sham and it was not intended that James F. Riggs do the construction, then plaintiff as a subcontractor of James F. Riggs, by virtue of the Article 5452--1 becomes an original contractor, and has 120 days to file his lien under Article 5453.
Thus, in this instance, plaintiff's petition must be perused to determine if it states a legal claim or a cause of action and, in testing the propriety of the summary judgment in favor of defendants, every allegation in plaintiff's petition must be taken as true to determine if it states a cause of action. General Plywood Corporation v. Collins, 414 S.W.2d 224 (Tex.Civ.App. — Amarillo 1967, no writ); Labbe v. Carr, 369 S.W.2d 952 (Tex.Civ.App. — San Antonio 1963, writ ref'd n.r.e.). Plaintiff's pleadings sets forth the letter agreement copied in the court's majority opinion and alleges that it is entitled to specific performance of the agreement. Taking plaintiff's allegations as true, the agreement is fatally deficient to support the plea of specific performance in that there is absent the essential elements of the amount of the selling price and the terms thereof for and under which the defendants would be bound to sell the land.
The purpose of the issuance of a temporary injunction is to preserve the status quo in regard to the matter in controversy or prevent irreparable injury or damage to applicant, pending final determination of the case on its merits. Labbe v. Carr, 369 S.W.2d 952, 954 (Tex.Civ.App., San Antonio, 1963, writ ref., n.r.e.). Ordinarily, the hearing upon an application for a temporary injunction neither substitutes for nor serves the same purpose as the hearing on the merits. Labbe v. Carr, supra; Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421 — 422 (1959); Briscoe Ranches, Inc. v. Eagle Pass Independent School District, 439 S.W.2d 118, 120 (Tex.Civ.App., San Antonio, 1969, writ ref., n.r.e.).