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Koch v. Googans

Court of Appeals of Texas, First District

February 22, 2018

BARRY W. KOCH, Appellant
v.
KENNETH GOOGANS, Appellee

         On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2016-05073

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.

          MEMORANDUM OPINION

          MICHAEL MASSENGALE JUSTICE.

         In this 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 defense.

         We reverse the judgment of the trial court and remand for further proceedings.

         Background

         In 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.

         The 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.

         Koch 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.

         Two 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.

         Analysis

         On 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.

         We 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. 1993).

         The 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 ...


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