dissenting.
I dissent from the majority opinion because I disagree with the analysis. This case is not about whether Weaver was entitled to payment for services not rendered; instead, it is about whether Highlands met its summary judgment burden to negate an element of Weaver’s claim. I would hold that Highlands did not meet its burden, reverse the trial court’s judgment, and remand to the trial court for further proceedings.
Analysis
The majority opinion ignores the true issue on appeal — whether Highlands established it was entitled to summary judgment as a matter of law by negating at least one element of Weaver’s breach of contract claim.
The elements of a claim for breach of contract are: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of that breach. Hussong v. Schwan’s Sales Enter., Inc., 896 S.W.2d 320 326 (Tex.App.-Houston [1st Dist.] 1995, no writ). Highlands is not entitled to summary judgment because its motion did not attack any element of a claim for breach of contract. Highlands’ motion did not challenge whether there was a valid contract with Weaver; it did not challenge whether Weaver performed under the contract; and it did not challenge whether Weaver was damaged.
Instead, Highlands motion purported to challenge whether it was in breach of the *832contract. It argued it did not breach the contract because it was not obligated to pay Weaver for services he did not render. Highlands’ argument cannot support summary judgment because Weaver did not allege the breach was the failure to pay him for work he did not do. Instead, Weaver’s pleadings alleged the contract was breached because he was prevented from performing and was terminated without notice. Thus, Highlands’ motion for summary judgment does not attack any element of Weaver’s claim.
Weaver’s response to summary judgment raised fact issues on each of the four elements of a breach of contract claim. He presented evidence that Highlands breached the contract by preventing him from completing the project they had agreed he would complete; the project was not completed; he was fired without 30-days written notice as required by the contract; and he was damaged by the breach.
Nonetheless, Highlands argued that the terms of payment were purely a matter of contract interpretation, and that the contract was not ambiguous. While I agree that the contract is not ambiguous, that does not resolve this case. Weaver was to be paid only for services rendered, as assigned by Highlands, and agreed upon by both parties. The contract also unambiguously required 30-days written notice before the contract could be terminated. When, as here, the parties bargain for the flexibility of terminating a contract upon tendering specific notice, neither party should be denied the benefit of its bargain. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 665 (Tex.1990); Threadgill v. Farmers Ins. Exchange, 912 S.W.2d 264, 267 (Tex.App.-Dallas 1995, no writ). When an employment contract requires a certain period of notice, the employment may be canceled on shorter notice or upon none at all if the employee is paid wages or salary for the specified notice period. Hussong, 896 S.W.2d at 326 (emphasis added); see also Stolz v. Wells, 43 S.W.2d 163, 164-65 (Tex.App.-Beaumont 1931, no writ) (stating plaintiff was entitled to one month’s salary when defendant breached contract by not giving 30-days written notice as required by contract).
The parties agreed that Weaver would work on the MSDV project. Before that project was completed, Weaver was fired without 30-days written notice. Highlands’ termination of the contract without 30-days written notice constituted a breach of the contract. See Juliette, 793 S.W.2d at 665; Threadgill, 912 S.W.2d at 267. It is undisputed that Weaver was denied the benefit of receiving 30-days written notice. This was the breach that Weaver alleged. Thus, I would conclude that Highlands did not meet its summary judgment burden to negate any element of Weaver’s breach of contract claim.