Opinion
14-21-00134-CV
04-21-2022
CAROLINE N. OGU, Appellant v. SOLOMON ERIC BOWENS, Appellee
On Appeal from the County Court at Law No. 6 Fort Bend County, Texas Trial Court Cause No. 20-CCV-067418
Panel consists of Justices Wise, Zimmerer, and Poissant.
MEMORANDUM OPINION
JERRY ZIMMERER JUSTICE.
Appellee Solomon Eric Bowens sued appellant Caroline N. Ogu for breach of contract. Bowens moved for a final summary judgment, which the trial court granted. Ogu appeals from that final judgment in favor of Bowens. Ogu argues on appeal that the trial court erred when it granted Bowens' motion for summary judgment because he failed to conclusively prove each element of his breach of contract cause of action. Because the summary judgment record does not contain any summary judgment evidence submitted by Bowens in support of his motion, we agree. We therefore sustain Ogu's issue on appeal, reverse the trial court's final judgment, and remand to the trial court for further proceedings.
Background
Bowens filed suit against Ogu alleging that Ogu retained him to help her recover unpaid damages from Ogu's insurance company. Bowens further alleged that he negotiated a settlement with the insurance company which then sent a multi-party check. According to Bowens, Ogu refused to sign the multi-party check thereby breaching the agreement. Bowens then filed suit against Ogu. Eventually, Bowens moved for a traditional summary judgment on his breach of contract cause of action. Ogu filed a pro se response to Bowens' motion. The trial court subsequently granted Bowens' motion thereby rendering a final summary judgment. This appeal followed.
Analysis
Ogu argues that the trial court erred when it granted Bowens' traditional motion for summary judgment because Bowens failed to conclusively prove each element of his breach of contract cause of action.
I. Standard of review
We review a trial court's order granting a traditional summary judgment de novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). In reviewing a grant of summary judgment, we consider all of the evidence in the light most favorable to the nonmovant. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.-Houston [14th Dist.] 2018, no pet.). When a plaintiff moves for summary judgment on its cause of action, it must conclusively prove all essential elements of its claim as a matter of law. Id. Evidence is considered conclusive if reasonable people could not differ in their conclusions. Id. The non-movant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively establishes each element of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). If the movant establishes its entitlement to judgment, only then does the burden shift to the nonmovant to come forward with competent controverting evidence sufficient to raise a genuine issue of material fact. Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 868 (Tex. App.-Houston [14th Dist] 2017, no pet.). In reviewing a summary judgment motion, we take as true all evidence favorable to the nonmovant and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Universal MRI and Diagnostics, Inc. v. Med. Lien Mgmt., Inc., 497 S.W.3d 653, 658 (Tex. App.-Houston [14th Dist.] 2016, no pet).
II. Bowens failed to meet his summary judgment burden to conclusively prove each element of his breach of contract cause of action.
To obtain summary judgment for breach of contract, the plaintiff must conclusively establish (1) the existence of a valid contract; (2) the performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages were sustained as a result of the defendant's breach. Universal MRI and Diagnostics, Inc., 497 S.W.3d at 659. Ogu argues on appeal that the trial court erred when it granted Bowens' motion for summary judgment because Bowens failed to prove the existence of a valid contract between the parties. We agree.
Bowens moved for summary judgment on his breach of contract cause of action. Bowens argued that the parties had entered into a contingent-fee contract whereby Bowens would attempt to recover additional money Ogu believed she was owed as a result of a 2016 insurance claim. Bowens further argued that he performed under the agreement because he obtained a payment from Ogu's insurer. Finally, Bowens asserted that Ogu breached the agreement when she refused to pay the agreed percentage on that recovery. While Bowens referenced exhibits in his motion for summary judgment, and later attached numerous purported exhibits to his appellate brief, the appellate record does not contain any summary judgment exhibits that were attached to Bowens' motion. In addition, the Fort Bend County Clerk confirmed there were no exhibits attached to Bowens' motion when this Court, in an effort to obtain a complete appellate record, requested a supplemental clerk's record. Because there is no evidence in the record, we conclude that Bowens failed to meet his summary judgment burden to conclusively prove each element of his breach of contract cause of action. See Regency Field Serv., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) ("Clearly, a party cannot rely on its own pleaded allegations as evidence of facts to support its summary judgment motion . . . ."); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014) (movant has burden to submit sufficient evidence to establish that it is entitled to judgment as a matter of law; where movant fails to do so, the burden does not shift to the non-movant and the non-movant need not respond or present any evidence); Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) ("Generally, pleadings are not competent evidence, even if sworn or verified."); Chamie v. Memorial Hermann Health Sys., 561 S.W.3d 253, 256 (Tex. App.- Houston [14th Dist] 2018, no pet.) (stating, in an appeal from the granting of a no-evidence motion for summary judgment, that the court of appeals "cannot consider the attachments to [the appellant's] brief, as they are not part of the appellate record"); Canton-Carter v. Baylor Coll. Of Med, 271 S.W.3d 928, 931, n.2 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("We may not consider documents attached to an appellate brief that are not part of the appellate record."). We therefore hold that the trial court erred when it granted Bowens' traditional motion for summary judgment. We sustain Ogu's issue on appeal.
Conclusion
Having sustained Ogu's issue on appeal, we reverse the trial court's final judgment and remand to the trial court for further proceedings.