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Click here for the full text of this decision FACTS:Daniel Waite Sr. appeals the summary judgment rendered in favor Woodard, Hall & Primm. The firm, former counsel for Waite in his divorce action, intervened in the ongoing divorce action to recover attorney’s fees and expenses of $78,717.52. The trial court severed the intervention and set a separate trial date. The parties settled by way of a letter agreement, which was filed with the trial court as a Rule 11 agreement. According to the settlement, the law firm agreed to “accept $35,471.28 in settlement of fees and expenses owed,” and the parties agreed to “enter into a mutual settlement and release.” In addition, Waite agreed to “indemnify and hold [appellee] harmless” against a claim for an expert’s fees. Waite tendered a check in the agreed amount to the firm, but refused to sign the proffered release, which included a release for all future claims between the parties, known or unknown. The firm filed a no-evidence motion for summary judgment in which it stated, “This motion for Summary Judgment is filed pursuant to Texas Rule of Civil Procedure 166a(i).” The firm then argued the enforceability of the Rule 11 agreement and asserted that the signed agreement contained all the essential terms of the agreement. The trial court granted the firm’s motion. HOLDING:Reversed and remanded. Texas Rule of Civil Procedure 166a(i) states that a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion for summary judgment may not be general, but must state the elements on which there is no evidence. The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. The party with the burden of proof at trial has the same burden of proof in the summary judgment proceeding. The court found the firm filed its petition in intervention as a party plaintiff and asserted a claim against Waite for breach of contract by Waite’s refusal to sign the release proffered by the firm. The firm bore the burden of proof for its breach of contract claim and, to prevail on a motion for summary judgment, was required to establish as a matter of law that Waite breached his contract by refusing to sign the release. In its motion for summary judgment, the firm did not specify any element of Waite’s cause of action or defense on which there was no evidence. Indeed, the firm could not specify such an element because the firm did not assert any causes of action or defenses. Therefore, the trial court could not properly render a summary judgment on the ground that there was no evidence of an essential element of appellant’s claim or defense. The court rejects the firm’s claim on appeal that it had moved for summary judgment under the “traditional” � Texas Rule of Civil Procedure 166a(c) � in addition to the no-evidence � Texas Rule of Civil Procedure 166a(i) � summary judgment rules. The court finds the firm didn’t provide fair notice to Waite in its earlier motion that it was arguing for summary judgment under Rule 166a(c). OPINION:Nuchia, J; Jennings, Nuchia and Keyes, JJ.

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