Karcher v. Bousquet

OPINION ON MOTION FOR REHEARING

Appellees contend that we are in error in holding that there is no evidence that *293Karcher, Sr., was in default on the deed of trust note because appellant’s response to the motion for summary judgment did not mention the defense. We disagree.

In the First Amended Response to Motion for Summary Judgment filed by appellant Karcher, Jr., it is alleged that:

... [TJhere are genuine issues of material fact which preclude the granting of summary judgment in favor of Plaintiffs, as appear from the pleadings, the depositions and documents on file and submitted on this motion. More particularly, Defendant asserts that the following items raise genuine issues of material fact:
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(d) The deposition of G.L. Kelly, Sr., indicates that there is an issue of fact as to what the basis of the reconveyance to F.W. Kraus was as well as the consideration given by the parties for the conveyance notwithstanding the recitation in the Deed from A.H. Karcher, Sr. to F.W. Kraus.

Appellees cite and rely upon City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979), for authority that appellants’ failure to expressly allege in their response to appellees’ motion for summary judgment that there was no evidence that Karcher, Sr., was in default of the deed of trust note, prevents the defense of no proof of default being urged on appeal. The court stated in City of Houston v. Clear Creek Basin Authority, supra, at p.678:

The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Summary judgments must stand on their own merits, and the non-movant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right.
While it would be prudent and helpful to the trial court for the non-movant always to file an answer or response, the non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment.

We hold that appellees did not establish their entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of their cause of action. Appellees failed to prove the necessary element that the note in question was in default; therefore, appellees’ motion is insufficient as a matter of law to support summary judgment. Unless appellees established that the note was in default, the conveyance from Karcher, Sr., to Kraus is not the same as a foreclosure.

Appellees’ motion for rehearing is overruled.