Appeal from the 189th District Court Harris County, Texas,
Trial Court Cause No. 2015-23987
consists of Justices Jamison, Busby, and Donovan.
Brett Busby Justice.
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
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
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.
relevant facts in this case are undisputed. Knight and
Leonard settled a prior lawsuit by signing a settlement
agreement in July 2010. 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.
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
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.
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,  $21, 659.44 for
attorney's fees and costs through trial, and additional
fees if the case was appealed and Knight prevailed. This
The trial court did not err in granting Knight summary
judgment on his claim for breach of contract.
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