Opinion filed June 6, 2013




                                        In The


        Eleventh Court of Appeals
                                       __________

                                 No. 11-11-00297-CV
                                       _________

                AFCO TECHNOLOGIES, INC., Appellant

                                          V.

              CORGILL CONSTRUCTION, INC., Appellee


                     On Appeal from the 42nd District Court
                                 Taylor County, Texas
                             Trial Court Cause No. 47,770-A



                      MEMORANDUM OPINION
      This appeal arises out of a breach of contract claim made by Corgill
Construction, Inc. against AFCO Technologies, Inc. Corgill moved for, and the
trial court granted, summary judgment. AFCO perfected this appeal. AFCO
argues in four issues that the trial court erred when it granted Corgill’s motion for
summary judgment. Because genuine issues of material fact exist, we reverse and
remand.
      In Corgill’s original petition, it alleged that the City of Merkel contracted
with AFCO for the completion of a water sewer project. As the general contractor
for the project, AFCO sought bids from subcontractors. Corgill submitted a quote
and claimed that an agreement was reached with AFCO to complete the necessary
work. Corgill asserted that, after completing the work, AFCO refused Corgill’s
requests for payment.
      We note at the outset that, in lieu of filing a response brief, Corgill has filed
a letter with this court in which it stated that it agreed with AFCO that the case
should be reversed and remanded for a trial on the merits. Nevertheless, the
comments to Texas Rule of Appellate Procedure 42.1 provide that “[t]he rule does
not permit an appellate court to order a new trial merely on the agreement of the
parties absent reversible error.” See In re Z.A.S., No. 07-09-0136-CV, 2009 WL
2567948, at *2 (Tex. App.—Amarillo Aug. 20, 2009, no pet.) (mem. op.).
Accordingly, our analysis of the issues raised on appeal follows.
      In its second issue, AFCO asserts that the trial court erred when it granted
Corgill’s motion for summary judgment because there is a genuine issue of
material fact concerning whether AFCO accepted the quote from Corgill based on,
among other things, the capacity of the signatory to Corgill’s quote.
       A trial court must grant a traditional motion for summary judgment if the
moving party establishes that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); SAS
Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005); Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex. 1991). The nonmovant is not required to file a
response to defeat the movant’s summary judgment motion; however, once the
movant establishes a right to judgment as a matter of law, the nonmovant must
come forward with evidence or law that precludes summary judgment. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). We
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review a trial court’s grant of summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary
judgment, the appellate court takes as true evidence favorable to the nonmovant.
Id. The appellate court “must consider whether reasonable and fair-minded jurors
could differ in their conclusions in light of all of the evidence presented” and may
not ignore “undisputed evidence in the record that cannot be disregarded.”
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).
      The relevant evidence that we have before us consists of an affidavit of the
president of Corgill, which was attached to Corgill’s motion for summary
judgment, and an affidavit of the president of AFCO and a quote from Corgill,
which were both attached to AFCO’s response. At the bottom of the quote, written
by hand, is the following: “Accepted – Dean Locklear 7/8/2009.” The affidavit of
the president of AFCO provided that “AFCO has no record on file that shows that
AFCO accepted the quote provided by Corgill” and that the signed quote “shows
acceptance of the quote by Dean Locklear in an individual capacity and not in the
capacity to bind AFCO.” The only other evidence present in the record concerning
whether AFCO accepted the quote is the following statement from the affidavit of
the president of Corgill: “In July 2009, Corgill Construction entered into an
agreement with AFCO Technologies, Inc. concerning a project ongoing in Merkel,
Taylor County, Texas.”
      Based on our review of the summary judgment evidence before us and
taking as true evidence favorable to AFCO, we hold that AFCO has raised a
genuine issue of material fact concerning whether AFCO accepted the quote from
Corgill. Issue Two is sustained. Because we have held that a genuine issue of
material fact exists that precludes summary judgment, we do not reach AFCO’s
other issues.


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      We reverse the summary judgment of the trial court and remand the cause to
that court for further proceedings.



                                           JIM R. WRIGHT
                                           CHIEF JUSTICE


June 6, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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