Bill Swor v. Tapp Furniture Company, Dian Emerson, and Jay Emerson
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Opinion
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00035-CV
BILL SWOR, Appellant
V.
TAPP FURNITURE COMPANY,
DIAN EMERSON, AND JAY EMERSON, Appellees
On Appeal from the 62nd Judicial District Court
Hopkins County, Texas
Trial Court No. CV35159
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N
Bill Swor sued Dian Emerson, Jay Emerson, and Tapp Furniture Company (collectively, the Emersons) to recover a fee for finding a buyer to purchase a funeral home business, Tapp Funeral Home, owned by the company. Swor alleged causes of action for breach of contract, quantum meruit, promissory estoppel, tortious interference with contractual relations, and civil conspiracy. The Emersons filed a motion for summary judgment on their affirmative defenses claiming that, because Swor had no real estate license or written commission agreement, he violated Sections 19 and 20(b) of the Real Estate License Act and was barred from bringing an action to recover a real estate commission. In response, Swor filed a motion for summary judgment, contending that no evidence existed to support the Emersons' affirmative defenses. The trial court granted the Emersons' motion and denied Swor's. Swor appeals, contending the trial court erred in granting the Emersons' motion and in denying his no-evidence motion.
To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).
The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). However, once the movant establishes that it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In reviewing a summary judgment, we accept all the nonmovant's proof as true and indulge every reasonable inference in the nonmovant's favor. Sci. Spectrum, Inc., 941 S.W.2d at 911. All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).
A no-evidence summary judgment is essentially a pretrial directed verdict. We therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). We must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id.; Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex. App.—Texarkana 2001, pet. denied). We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70–71 (Tex. App.—Austin 1998, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711; see King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
In general, an order granting a summary judgment may be appealed, but an order denying a summary judgment may not. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980). However, an exception to this rule exists when both parties file motions for summary judgment and the court grants one and overrules the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). On appeal, the proper disposition is for the appellate court to render judgment for the party whose motion should have been granted. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex. 1984); McLemore v. Pac. Southwest Bank, FSB, 872 S.W.2d 286, 289 (Tex. App.—Texarkana 1994, writ dism'd by agr.). Each party must clearly prove its right to judgment as a matter of law, and neither party may prevail simply because the other party failed to make such proof. Bd. of Adjustment of City of Dallas v. Patel, 887 S.W.2d 90, 92 (Tex. App.—Texarkana 1994, writ denied); James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex. App.—Houston [1st Dist.] 1987, writ denied). The proper disposition on appeal is for the appellate court to render judgment for the party whose motion should have been granted. McLemore, 872 S.W.2d at 289.
Swor testified in his deposition that Dian, president of Tapp Furniture Company, expressed to him an interest in selling Tapp Funeral Home. She asked Swor to find financing for her son and another employee to purchase the funeral home. Swor testified that, when that deal did not materialize, Dian orally agreed to pay him a fee of ten percent of the sale price, if he introduced a buyer.
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