the 272nd District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY Chief Justice.
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.
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. 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.
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
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
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
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).
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.
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).
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).
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 ...