Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 267th District Court of Victoria County,
Chief Justice Valdez and Justices Benavides and Longoria
L. LONGORIA Justice
an appeal from an order granting appellee Michelle
Smith's no-evidence and traditional motions for summary
judgment in a breach of contract and fraudulent inducement
dispute with appellant Elton Todd Wiggins. By seven issues,
which we treat as one, Wiggins asserts that the trial court
erred by granting summary judgment in favor of Smith. We
reverse and remand.
states that he and Smith met in 2008 through a mutual friend.
From June 2008 through September 2010, Wiggins issued checks
to Smith, Smith's probate attorney, and Smith's
son's attorney. Prior to issuing the checks, Wiggins
alleges Smith agreed to reimburse him for the money he would
loan her, either through her probate claim, if victorious, or
from her profits from the sale of property she owned. After
he learned the probate claim may be unsuccessful, Wiggins
requested repayment. Smith did not repay Wiggins, claiming
the money was a gift. Subsequently, Wiggins filed suit
against Smith alleging breach of contract and fraudulent
inducement. After some discovery had taken place, Smith was
granted both no-evidence and traditional summary judgments.
This appeal followed.
argues that the trial court erred in granting Smith's
motions for summary judgment because: (1) as a matter of law
there was a contract between the parties; (2) there were
issues of fact; (3) the grounds for granting the motion were
not pleaded or presented by counsel; (4) at least some issues
of fact were presented in an affidavit; (5) the checks marked
as "loan" constitute a written agreement between
the parties; (6) the regulation of loans by the Statute of
Frauds applies only to financial institutions; and (7)
appellee did not comply with the appropriate rules in filing
their no-evidence summary judgment motion.
Standard of Review
No-Evidence Summary Judgment
motion for summary judgment may be brought on no-evidence or
traditional grounds. See Tex. R. Civ. P. 166a(c),
(i). A no-evidence summary judgment is equivalent to a
pretrial directed verdict, and we apply the same legal
sufficiency standard on review. Guevara v. Lackner,
447 S.W.3d 566, 570 (Tex. App.-Corpus Christi 2014, no pet.).
We will affirm a no-evidence summary judgment if the record
shows one of the following: (1) there is no evidence on the
challenged element; (2) rules of law or evidence bar the
court from giving weight to the only evidence offered to
prove the challenged element; (3) the evidence offered to
prove the challenged element is no more than a scintilla; or
(4) the evidence conclusively establishes the opposite of the
challenged element. Id. at 570-71 (citing City
of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)).
All that is required of the non-movant is to produce a
scintilla of probative evidence to raise a genuine issue of
material fact on the challenged element. Forbes lnc. v.
Granada Biosciences, lnc., 124 S.W.3d 167, 172 (Tex.
2003). Less than a scintilla of evidence exists when the
evidence is 'so weak as to do no more than create a mere
surmise or suspicion' of a fact. ld. More than a
scintilla of evidence exists if it would allow reasonable and
fair-minded people to differ in their conclusions.
Id. When reviewing a no-evidence summary judgment,
we "review the evidence presented by the motion and
response in the light most favorable to the party against
whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could
not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.
Traditional Summary Judgment
reviewing a traditional summary judgment, we must determine
whether the movant met its burden to establish that no
genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c). We review the trial court's summary judgment de
novo. Provident Life & Acc. Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003). In order to prevail on
traditional summary judgment claim, movant must show that:
(1) no genuine issue of material fact exists and (2) he is
entitled to judgment as a matter of law. BCCA Appeal Grp.
v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016). When
reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant's
favor. Provident Life, 128 S.W.3d at 215 (citing
Southwestern Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002); Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).