John Leonard v. Spencer Tracy Knight
551 S.W.3d 905
Tex. App.2018Background
- Knight and Leonard entered a July 2010 settlement; Leonard agreed to sign a promissory note to pay $86,500 plus interest over four years with $250 minimum monthly payments and a single balloon payment at term end.
- Knight agreed to dismiss the prior lawsuit with prejudice; Leonard signed the promissory note the next month and made the monthly payments for four years but did not make the final balloon payment.
- The prior suit was dismissed by the court for want of prosecution (without prejudice); Knight never filed a motion to dismiss with prejudice nor sought to revive the suit, and did not refile claims.
- In December 2014 Leonard notified Knight he was revoking the settlement based on Knight’s alleged failure to obtain a dismissal with prejudice; Knight sued for breach of contract and sought attorney’s fees.
- The trial court granted Knight’s traditional motion for summary judgment, awarding the contract amount plus attorney’s fees; Leonard appealed arguing (1) prior material breach defense, (2) that his fee-opinion affidavit created a fact issue, and (3) Knight’s fee evidence was improperly considered due to expert/designation and discovery issues.
Issues
| Issue | Plaintiff's Argument (Knight) | Defendant's Argument (Leonard) | Held |
|---|---|---|---|
| Whether Leonard’s affirmative defense of prior material breach precluded summary judgment on breach of contract | Knight argued he performed (took no action and did not refile) and proved breach claim as a matter of law | Leonard argued Knight’s failure to obtain dismissal with prejudice was a material prior breach excusing his performance | Court held Leonard failed to raise a genuine issue on materiality; breach (failure to get dismissal with prejudice) was not shown to have deprived Leonard of the expected benefit, so summary judgment for Knight affirmed |
| Whether Leonard’s attorney affidavit created a fact issue on reasonableness of Knight’s fees | Knight presented Junell’s affidavit stating fees were reasonable and necessary | Leonard submitted Sanders’s affidavit stating Knight’s fees were not reasonable or necessary but provided no supporting facts | Court held Sanders’s affidavit was conclusory and not competent summary judgment evidence; did not create a fact issue |
| Whether Junell’s fee affidavit should have been excluded for discovery/expert-designation failures | Knight relied on Junell’s affidavit filed in support of summary judgment | Leonard argued Knight failed to timely designate Junell as an expert and failed to supplement discovery with billing records | Court held Leonard did not preserve these complaints for appeal (no record citation for docket order; no ruling obtained on evidentiary objection), so issue not preserved |
| Whether summary judgment on attorney’s fees was supported | Knight asserted his evidence established fees and costs incurred | Leonard argued insufficiency and evidentiary defects in Knight’s evidence | Court affirmed summary judgment on fees because Junell’s affidavit stood and Leonard’s opposing affidavit was conclusory or unpreserved challenge |
Key Cases Cited
- Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618 (Tex. 2007) (standard of review for traditional summary judgment)
- CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) (order issues to address greatest possible relief first)
- PAJ, Inc. v. Hanover Ins. Co., 243 S.W.3d 630 (Tex. 2008) (prior material breach discharges other party from further performance)
- Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432 (Tex. 2017) (material vs. nonmaterial breach inquiry)
- Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691 (Tex. 1994) (materiality assessed by deprivation of expected contractual benefit)
- Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380 (Tex. 2008) (affidavits must not be conclusory)
- Padilla v. Metro. Transit Auth. of Harris County, 497 S.W.3d 78 (Tex. App.—Houston [14th Dist.] 2016) (affidavit must contain factual bases)
- Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655 (Tex. App.—Houston [14th Dist.] 2012) (conclusory-objection may be raised on appeal)
- Engel v. Pettit, 713 S.W.2d 770 (Tex. App.—Houston [14th Dist.] 1986) (contrast on affidavit sufficiency where issue on appeal differed)
- Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596 (Tex. App.—Houston [14th Dist.] 2012) (no implied preservation of evidentiary objections by granting summary judgment)