BARRY W. KOCH, Appellant
KENNETH GOOGANS, Appellee
Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2016-05073
consists of Chief Justice Radack and Justices Massengale and
MICHAEL MASSENGALE JUSTICE.
contract dispute, appellant Barry W. Koch challenges the
trial court's take-nothing summary judgment in favor of
appellee Kenneth Googans. Among other things, Koch argues
that Googans failed to conclusively establish the affirmative
defense of novation when the summary-judgment evidence
instead showed the parties' original contract was
amended. Reviewing the summary judgment de novo, we conclude
that Googans did not conclusively prove his affirmative
reverse the judgment of the trial court and remand for
December 2013, appellee Kenneth Googans entered into a
settlement agreement with the partners of Glacier Financial
Partners, which included appellant Barry W. Koch. Googans
made some payments in accordance with the agreement, but he
defaulted in May 2015. In the summer of 2015, the parties
amended the 2013 settlement agreement to reduce the monthly
payments and extend the time period for repayment. The 2015
amendment stated: "With the exception of the foregoing
amendments, all terms of the Agreement remain unchanged and
in full force and effect." Koch alleges that Googans
defaulted again in late 2015.
following year, Koch sued Googans for breach of contract. In
his original petition, Koch alleged that Googans breached the
2013 settlement agreement, but he made no allegations about
the 2015 amendment. Googans pleaded the affirmative defense
of novation, asserting that the 2013 settlement agreement was
altered by the 2015 amendment. Googans then filed a motion
for summary judgment on the grounds of novation.
subsequently amended his petition to allege that Googans had
breached the 2013 settlement agreement as amended in 2015. He
also alleged that the unmodified portions of the 2013
settlement agreement remained in effect. Koch did not file a
response to the motion for summary judgment.
weeks after Koch's amended petition was filed, the trial
court granted summary judgment to Googans based on the sole
ground of novation. The court denied a motion to reconsider
its ruling, and Koch appealed.
appeal, Koch argues that the court erred by granting summary
judgment. Googans characterizes the court's judgment as a
"default summary judgment, " and he argues that the
court ruled correctly after Koch failed to file a response to
the motion for summary judgment.
review a trial court's ruling on a motion for summary
judgment de novo. See Merriman v. XTO Energy, Inc.,
407 S.W.3d 244, 248 (Tex. 2013). A movant seeking a
traditional summary judgment must show "there is no
genuine issue as to any material fact" and that it is
"entitled to judgment as a matter of law."
Tex.R.Civ.P. 166a(c); see Amedisys, Inc. v. Kingwood Home
Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014).
Because the movant must prove conclusively that he is
entitled to summary judgment, a trial court may not grant a
traditional motion for summary judgment based on the
nonmovant's failure to respond. City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979). "The nonmovant has no burden to respond to a
summary judgment motion unless the movant conclusively
establishes its cause of action or defense."
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23
(Tex. 1999). "Summary judgments must stand on their own
merits, and the non-movant's failure to answer or respond
cannot supply by default the summary judgment proof necessary
to establish the movant's right." Clear Creek
Basin Auth., 589 S.W.2d at 678; see McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.
sole ground raised by the motion for summary judgment was the
affirmative defense of novation. Googans argued in the trial
court that Koch's breach of contract claim was based on a
breach of the 2013 settlement agreement, and ...