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Metropolitan Water Company, LP v. Ausley

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 21, 2019

METROPOLITAN WATER COMPANY, LP, Appellant,
v.
NATHAN AUSLEY, Appellee.

          On appeal from the 21st District Court of Burleson County, Texas.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina

          MEMORANDUM OPINION

          JAIME TIJERINA, JUSTICE

         Appellee 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 affirm.[1]

         I. Background

         On 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 addressed.

         On July 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 contract.

         Thereafter, 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.

         II. Standard of Review

         We 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. denied).[2]

         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. 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).

         III. The Contract

         By its 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.

         "Ordinarily, 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 ...


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