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Palasota v. Doron

Court of Appeals of Texas, Tenth District

May 2, 2018

ELAINE PALASOTA, Appellant
v.
YUVAL "U. V." DORON, Appellee

          From the 272nd District Court Brazos County, Texas Trial Court No. 11-003374-CVA-272

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins Justice.

          MEMORANDUM OPINION

          TOM GRAY Chief Justice.

         Elaine Palasota appeals from a judgment that denied her traditional and no-evidence motions for summary judgment and granted Yuval Doron's traditional and no-evidence motions for summary judgment, finding that she was a partner in Brazos Valley Services. The trial court had entered a default judgment against Brazos Valley Services for breach of contract. Elaine Palasota complains that the trial court erred by denying her motions for summary judgment and by granting Doron's motions. Because we find that the trial court erred by granting Doron's motion for traditional summary judgment and by denying Elaine's motion for no-evidence summary judgment, we reverse the judgment of the trial court and render judgment that Elaine's no-evidence motion is granted and that she is not liable for the judgment as a partner of Brazos Valley Services.[1]

Ricky J. Palasota and Rick J. Palasota, Jr., as partners of Brazos Valley Services, entered into an agreement with Doron to pour a concrete foundation for a residence. According to Doron, the concrete was not poured properly and Brazos Valley Services did not repair the problems. Doron filed suit against Brazos Valley Services and took a default judgment against it. The same day the default judgment was entered, Doron amended his petition to add Elaine Palasota, Ricky J. Palasota, Sr., and Rick J. Palasota, Jr. as individual defendants.[2] Elaine and Ricky are married and Rick is their son. Doron claimed that Elaine, Ricky, and Rick were all partners in Brazos Valley Services. The trial court severed the default judgment from the remaining claims against the Palasotas, making that judgment final.

         While Doron was attempting to collect the judgment against the partnership, Ricky and Rick each filed for bankruptcy, leaving Elaine as the sole defendant from whom Doron could attempt to collect the debt in the remaining proceeding. Elaine filed an answer and verified denial in which she denied that she had ever been a partner in Brazos Valley Services. Elaine later filed a traditional and no-evidence motion for summary judgment asserting that there was no material fact relating to Doron's partnership claims and that she was not otherwise liable for a breach of contract. Elaine also provided summary judgment evidence which she claimed established as a matter of law that she was not a partner in Brazos Valley Services. Elaine's no-evidence motion asserted that Doron had no evidence to support his partnership, joint venture, or breach of contract claims against her.

         Doron did not file a response to Elaine's motions, but instead filed a competing traditional and no-evidence motion for summary judgment. As evidence in support of his traditional motion, Doron attached portions of Ricky and Rick's bankruptcy schedules which he argued were sufficient to establish that Elaine is a partner in Brazos Valley Services as a matter of law. Elaine filed a response to Doron's motions, and attached the partnership agreement for Brazos Valley Services as well as affidavit and deposition testimony to support her position. After a hearing, the trial court granted Doron's traditional motion for summary judgment as to his claim regarding partnership liability, finding that there is no genuine issue of material fact as to Doron's claim that Elaine was a partner in Brazos Valley Services, granted judgment against Elaine for the amount of the default judgment, and awarded Doron attorney's fees and court costs.

         In her first issue, Elaine complains that the trial court erred by granting Doron's traditional motion for summary judgment because he did not establish as a matter of law that Elaine was a partner in Brazos Valley Services and the award of attorney's fees was erroneous. In her second issue, Elaine complains that the trial court erred by denying her motions for summary judgment because she established that she was entitled to judgment as a matter of law that she was not a partner (the traditional motion), and that Doron did not raise a genuine issue of material fact regarding the partnership and breach of contract claims (the no-evidence motion).

         Standard of Review

         We review a trial court's summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Our review is limited to consideration of the summary judgment evidence presented to the trial court. See Tex. R. Civ. P. 166a(c) (no oral testimony may be considered in support of a motion for summary judgment). When the trial court does not specify the grounds for its ruling, a summary judgment must be affirmed if any of the grounds on which judgment is sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).

         When a party moves for summary judgment on both no-evidence and traditional grounds on the same ground or issue, we first review the trial court's judgment under the no-evidence standard of review. Merriman, 407 S.W.3d at 248; Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). "That is because if the non-movant fails to produce legally sufficient evidence to meet his burden as to the no-evidence motion, there is no need to analyze whether the movant satisfied its burden under the traditional motion." Merriman, 407 S.W.3d at 248.

         We review no-evidence summary judgments under the same legal sufficiency standard as directed verdicts. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Under that standard, we consider evidence in the light most favorable to the non-movant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). The non-movant has the burden to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element of its cause of action. Tex.R.Civ.P. 166a(i). A no-evidence challenge will be sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. Merriman, 407 S.W.3d at 248 (citations omitted). When a non-movant presents more than a scintilla of probative evidence that raises a genuine issue of material fact, a no-evidence summary judgment is improper. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

         The party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The burden of proof is on the movant and we resolve all doubts about the existence of a genuine issue of material fact against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215. In determining whether the non-movant raises a fact issue, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848, citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A moving party who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010).

         When both parties move for summary judgment and the trial court grants one motion and denies the other, we review all the summary judgment evidence, determine all issues presented, and render the judgment the trial court should have. Merriman, 407 S.W.3d at 248; Fielding, 289 S.W.3d at 848. If any of the summary judgment grounds are meritorious, we must affirm the summary judgment. Te ...


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