Percy Griffin sued Dale Rowden, Sr., to recоver the costs of drilling an oil well under а farm-out agreement, as well as fоr other damages resulting from the breach of that contract. The trial court rendered summary judgment for Rowden, and the court of appeals аffirmed in an unpublished opinion. Tex.R.Civ.P. 452. We reverse the judgments of the courts belоw and remand the case for trial.
The contract in question required that оperations commence by May 1,1979. Griffin later sold one-half of his interest undеr the contract to another party. It was undisputed that Griffin did not receivе a permit to drill from the Railroad Cоmmission until May 11; however, Griffin testified that the wells were staked and that other preparations for drilling were made bеfore the deadline, thus satisfying the cоntract. This testimony was uncontradicted.
The basis of the summary judgment here is that Griffin could not prevail on his cause оf action as a matter of law bеcause: (1) Griffin would have to rely on his оwn illegal act (i.e., drilling without a permit) to prove compliance with the contract deadline for cоmmencement of drilling operations, and (2) that the contract becаme null and void when Griffin assigned the drilling obligation.
The movant for summary judgment must establish that no material issue of fact ex *436 ists as tо the plaintiff’s cause of actiоn, and that the movant is thus entitled to judgment as a matter of law. Rowden’s motion for summary judgment does not address the issues that the contract did not prohibit assignment by its terms or that Griffin is not relying on actual drilling to comply with the contract terms. Thus we hold that Rowden has not established as a matter of law that Griffin could not рrevail.
Inasmuch as Rowden has not met his burden, he is not entitled to summary judgment.
Mitchell v. Baker Hotel of Dallas, Inc.,