Opinion
No. 05-03-00006-CV
Opinion Filed December 31, 2003.
On Appeal from the 193rd Judicial District Court Dallas County, Texas, Trial Court Cause No. 02-04573-L.
Affirmed.
Before Justices JAMES, FITZGERALD and LANG-MIERS.
MEMORANDUM OPINION
Harvest Construction Team appeals the trial court's summary judgment in favor of Hartford Fidelity Bonding denying Harvest Construction payment on a surety bond. The facts of this case are known by the parties, and we do not recite them in detail. We issue this memorandum opinion in compliance with Tex.R.App.P. 47.1. We affirm the trial court's judgment.
PROCEDURAL BACKGROUND
Hartford filed a combination traditional and no-evidence motion for summary judgment. Hartford sought summary judgment solely on the basis of Harvest Construction's failure to give timely notice of its claim as required by Tex. Gov't Code Ann. § 2253.041(b) (Vernon 2000). Harvest Construction did not file a response to Hartford's motion. The trial court granted summary judgment without specifying whether its decision was based on the traditional or no-evidence motion.
STANDARD OF REVIEW
A party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim upon which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The movant must specifically state the elements for which there is no evidence. Id.; Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex. App.-Dallas 2002, no pet.). The nonmovant has the burden to present evidence that raises a genuine issue of material fact on the challenged elements, but is not required to marshal its proof. Crocker, 95 S.W.3d at 419. The trial court must grant summary judgment if the party opposing the motion fails to file a summary judgment response raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App.-Houston [14th Dist.] 2000, pet. denied); Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 493-94 (Tex. App.-El Paso 1999, pet. denied). If an order granting the motion does not state the reason for granting the motion, the summary judgment must be affirmed if any of the grounds are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2001).
DISCUSSION
In its sole issue on appeal, Harvest Construction complains that the trial court erred in rendering summary judgment for Hartford "because Hartford failed to meet its burden of proof." Harvest Construction argues that because Hartford's no-evidence motion for summary judgment failed to specifically state the element for which there was no evidence, we must review it as we would a traditional motion for summary judgment which imposes the burden of proof on the movant. Citing Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.-Corpus Christi 2001, no pet.). We disagree that Hartford failed to specify the specific element which it was contesting. In its no-evidence motion, Hartford stated that
[t]here is no outstanding discovery to be completed regarding the timeliness of the claim, as the relevant documents are the Notice of Claim and the accompanying Affidavit of Gary Pharr. As such, Plaintiff Harvest cannot provide any evidence to support the element of timely notice necessary for its recovery and additional time for discovery is unnecessary. Tex. Gov't Code Ann. § 2253.041(b).
The above-quoted statement was sufficiently specific as to which element of Harvest Construction's cause of action was being challenged — timely notice of its claim as required by section 2253.041(b) of the Texas Government Code. The trial court properly considered Hartford's motion to be a no-evidence motion.
When Hartford filed a no-evidence motion for summary judgment on the issue of timely notice, Harvest Construction had the burden of producing summary judgment evidence sufficient to raise a genuine issue of material fact as to timely notice of its claim. Harvest Construction failed to respond to Hartford's motion. The trial court did not err when it granted Hartford's no-evidence motion for summary judgment because Harvest Construction did not raise a genuine issue of material fact as to timely notice of its claim, an element of its cause of action. It is unnecessary to address Hartford's traditional motion for summary judgment because judgment was proper based upon the no-evidence motion.
The requirement of notice is not a mere statute of limitation, but is a substantive condition precedent to the existence of a cause of action on the surety bond at issue in this case. See Bunch Electric Co. v. Tex-Craft Builders, Inc., 480 S.W.2d 42, 45 (Tex.Civ.App.-Tyler 1972, no pet.). Bunch Electric Co. discusses Tex. Rev. Civ. Stat. Ann. art. 5160 (Vernon Supp. 1970). The legislature repealed article 5160 effective September 1, 1993, and adopted titles 5, 6, and 10 of the Texas Government Code. See Act of May 22, 1993, 73rd Leg., R.S., ch. 268, §§ 1, 46(1), 1993 Tex. Gen. Laws 986. The statutory provisions governing public work performance and payment bonds upon which this claim is based are recodified in title 10 of the Texas Government Code. See Tex. Gov't Code Ann. § 2253, et seq. (Vernon 2000).
We overrule Harvest Construction's sole issue and affirm the trial court's judgment.