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Leonard v. Knight

Court of Appeals of Texas, Fourteenth District

May 31, 2018

JOHN LEONARD, Appellant
v.
SPENCER TRACY KNIGHT, Appellee

          On Appeal from the 189th District Court Harris County, Texas, Trial Court Cause No. 2015-23987

          Panel consists of Justices Jamison, Busby, and Donovan.

          OPINION

          J. Brett Busby Justice.

         Appellee Spencer Tracy Knight sued appellant John Leonard for breach of contract when Leonard failed to pay the full amount owed under an agreement. Knight filed a traditional motion for summary judgment, which the trial court granted. Leonard challenges the trial court's final summary judgment in three issues.

         Leonard contends that the trial court erred when it granted Knight's motion for summary judgment on breach of contract because Leonard's evidence created a fact issue on each element of his affirmative defense of prior material breach. We overrule this issue because Leonard's evidence did not create a genuine issue of material fact on whether Knight's breach was material, thus excusing Leonard from future performance.

         Leonard also advances two issues challenging the trial court's award of attorney's fees to Knight. First, Leonard argues that the trial court erred in granting summary judgment on fees because his evidence created a genuine issue of material fact on the reasonableness of Knight's fees. We overrule this issue because the affidavit Leonard filed in response to Knight's motion is conclusory and therefore no evidence. Second, Leonard asserts that Knight's evidence should not have been considered, as he did not timely designate his expert nor supplement discovery. We overrule this issue because Leonard failed to preserve it for appellate review. We therefore affirm the trial court's summary judgment.

         Background

         The relevant facts in this case are undisputed. Knight and Leonard settled a prior lawsuit by signing a settlement agreement in July 2010.[1] Leonard promised in that settlement agreement that he would sign a promissory note obligating him to (1) pay Knight a total of $86, 500 plus interest for a term of four years; (2) make minimum monthly payments of at least $250 during the four-year term; and (3) at the end of the four-year term, pay the unpaid principal and interest in a single balloon payment. Knight, on the other hand, agreed that he would dismiss the prior lawsuit with prejudice. Both Knight and Leonard agreed that they would release all claims each had against the other. Leonard signed the promissory note one month later.

         Leonard began making payments soon after signing the promissory note, and he made the minimum monthly payment each month for four years. Knight never filed a motion to dismiss the prior lawsuit with prejudice. Instead, the trial court dismissed the prior lawsuit for want of prosecution in September 2010. Knight made no effort to refile the prior lawsuit against Leonard. For four years, Leonard never complained to Knight that the dismissal of the prior lawsuit was without prejudice.

         Leonard did not make the final balloon payment, which was due in August 2014. Instead, Leonard sent Knight a letter in December 2014 pointing out that Knight had not filed a motion to dismiss the prior lawsuit with prejudice. Contending this failure was a breach of the settlement agreement, Leonard notified Knight that he was revoking the settlement agreement. Knight responded by suing Leonard for breach of contract. Leonard filed an answer asserting the affirmative defense that his performance under the settlement agreement was excused as a result of Knight's prior material breach of the agreement.

         Knight eventually filed a traditional motion for summary judgment. The trial court granted Knight's motion and signed a final summary judgment awarding Knight $105, 135.82 as the amount owed under the promissory note, [2] $21, 659.44 for attorney's fees and costs through trial, and additional fees if the case was appealed and Knight prevailed. This appeal followed.

         Analysis

         I. The trial court did not err in granting Knight summary judgment on his claim for breach of contract.

         We address appellant's third issue first because success on this issue would afford him the greatest relief. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Caballero v. Caballero, No. 14-16-00513-CV, 2017 WL 6374724, at *3 (Tex. App.-Houston [14th Dist.] Dec. 14, 2017, no pet.) (mem. op.) (addressing appellate issue providing greatest possible relief first). In that issue, Leonard argues summary judgment was improper on Knight's claim ...


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