Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 21st District Court of Burleson County,
Chief Justice Contreras and Justices Hinojosa and Tijerina
Nathan Charles Ausley sued appellant Metropolitan Water
Company, L.P. (Met Water) for breach of contract. Ausley and
Met Water have differing interpretations of the relevant
contract, and each moved for summary judgment. The trial
court granted Ausley's motion for summary judgment and
denied Met Water's. By its sole issue, Met Water contends
that summary judgment for Ausley was improper because Met
Water timely made payment pursuant to the contract. We
January 26, 2005, Ausley entered into two groundwater leases
with Met Water (collectively, the contract). The contract
provided that Met Water would pay Ausley certain royalty
payments once production began and described a process by
which any deficiencies in royalty payments would be
6, 2016, Ausley mailed Met Water notice asking Met Water to
correct royalty payment deficiencies. Met Water received this
notice on July 8. Met Water issued a check for the proper
amount and deposited it in the mail on September 6. Ausley
received this payment on September 8 and claims it was two
days late pursuant to a sixty-day deadline imposed by the
Ausley sued Met Water asserting the late payment constituted
a breach of contract. Both parties moved for traditional
summary judgment, and the trial court granted Ausley's
motion and denied Met Water's motion. In their motions
for summary judgment, both parties agreed that payment was
due by September 6, 2016. While Met Water argued that it made
payment on September 6 when it deposited payment in the mail,
Ausley argued that Met Water paid on September 8-the date
Ausley received payment. The trial court determined that Met
Water's payment was untimely and awarded Ausley
attorney's fees and costs. It subsequently denied Met
Water's motion for new trial. This appeal followed.
Standard of Review
review the trial court's summary judgment de novo.
See Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper
when the movant conclusively establishes the elements of the
claim. Id.; Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Here, the
claim is breach of contract, which requires proof of four
elements: "(1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages
sustained by the plaintiff as a result of the breach."
Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 407
(Tex. App.-El Paso 2009, no pet.); Doss v. Homecoming
Fin. Network, Inc., 210 S.W.3d 706, 713 (Tex.
App.-Corpus Christi- Edinburg 2006, pet.
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. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). The party moving for traditional summary
judgment has the burden to show that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When, as
here, both parties move for summary judgment on the same
issue and the trial court grants one motion and denies the
other, we consider the summary judgment evidence presented by
both sides, determine all questions presented, and if we
determine that the trial court erred, render the judgment the
trial court should have rendered. See FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
sole issue, Met Water contends the trial court erred by
granting Ausley's motion for summary judgment on
Ausley's breach of contract claim. Met Water argues that
it paid on September 6, 2016 when it deposited payment in the
mail-not when Ausley received the payment-"because
payment by mail was permitted by [the contract] and because
it was customary for the parties to exchange payments by
mail." Ausley argues Met Water did not pay on time
because Ausley received payment on September 8.
simply mailing a premium check before the last day for
payment is not sufficient to constitute timely payment,"
but when "remittance by mail is customary or
authorized," performance is completed when
"remittance, properly addressed, is deposited in the
mail." Am. Cas. Co. of Reading, Pa. v. Conn,
741 S.W.2d 536, 538 (Tex. App.-Austin 1987, no writ).
"[A]n oil and gas lease may expressly provide for the
payment of delay rentals by the mailing of a check, draft or
other form of remittance to the ...