Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 117th District Court of Nueces County, Texas.
Chief Justice Contreras and Justices Rodriguez and Benavides
M. BENAVIDES, JUSTICE
issue, appellant AAON challenges the trial court's
granting of appellee CJO Enterprises, Inc.'s (CJO) motion
for summary judgment. We affirm.
background of this case involves litigation relating to
heating, ventilation, and air conditioner (HVAC) systems
installed at Calallen Independent School District (CISD).
CISD contracted with AAON to purchase and install HVAC units
at five of its schools. As part of the contract, CISD
requested that Adsil protective coating be applied to the
HVAC units' coils to prevent corrosion. AAON contracted
with CJO to apply the Adsil coating to the HVAC units'
coils. CISD alleged that the Adsil coating failed to protect
the HVAC units and led to "premature degradation and
corrosion" and sued AAON, Adsil, and CJO. Eventually,
CISD non-suited AAON and Adsil in its case against them and
entered into a mediated settlement agreement with CJO.
to CISD's lawsuit, AAON filed this petition claiming
indemnity from CJO and Adsil under chapter 82 of the civil
practice and remedies code. See Tex. Civ. Prac.
& Rem. Code Ann. § 82 (West, Westlaw through 2017
1st C.S.). AAON sought "reasonable attorney's fees,
expert witness costs, and other reasonable expenses in
defending the CISD litigation and in enforcing its right to
indemnification in this suit."
settled its indemnity claim with Adsil. CJO filed a hybrid
motion for traditional and no-evidence summary judgment
regarding AAON's indemnity claim against it. In the
motion, CJO alleged that AAON did not qualify for indemnity
because CJO was not a "manufacturer" of Adsil and
AAON was not a "seller" of Adsil and there was no
evidence that entitled AAON to statutory indemnity from CJO.
The trial court, considering the evidence before it, granted
CJO's hybrid motion for summary judgment. This appeal
sole issue, AAON argues the trial court committed error by
granting CJO's motion for summary judgment.
Standard of Review
motion for summary judgment may be brought on no-evidence or
traditional grounds. See Tex. R. Civ. P. 166a(c),
(i). We review a trial court's grant of summary judgment
de novo. Neely v Wilson, 418 S.W.3d 52, 59-60 (Tex.
2013); Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). The party moving for summary judgment
bears the burden of proof. Roskey v. Tex. Health
Facilities Comm'n, 639 S.W.2d 302, 303 (Tex. 1982).
Though these burdens vary for traditional and no-evidence
motions, the summary judgment motion here was a hybrid motion
and both parties brought forth summary judgment evidence;
therefore, the differing burdens are immaterial and the
ultimate issue is whether a fact issue exists. Buck v.
Palmer, 381 S.W.3d 525, 527 & n. 2 (Tex. 2012). A
fact issue exists if there is more than a scintilla of
probative evidence. See id. at 527; Tex.R.Civ.P.
166a(c), (i). We must review the summary judgment record
"in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against
the motion." City of Keller v. ...