                              NO. 12-08-00405-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
ROGER WAYNE BURGES,
DEBORAH K. BURGES COOK,
AND LONNIE RAY BURGES,                           '           APPEAL        FROM       THE
217TH
APPELLANTS

V.                                               '           JUDICIAL           DISTRICT
COURT OF

SHIRLEY MOSLEY,
APPELLEE                                         '           ANGELINA           COUNTY,
TEXAS

                                            OPINION
       This appeal arises from a dispute over the enforceability of an alleged agreement
made by Shirley Mosley to benefit her deceased husband’s three children by a previous
marriage. The trial court determined the alleged agreement was not a contract due to
both a lack of consideration and failure of consideration.       In two issues, the three
children, Roger Wayne Burges, Deborah K. Burges Cook, and Lonnie Ray Burges
(hereinafter the Burges children) appeal the trial court’s grant of Shirley’s motions for
summary judgment and its denial of their motion for summary judgment. We reverse and
remand for further proceedings.


                                      BACKGROUND
       Shirley and Coy Mosley were married in 1970.            Each had children from a
previous marriage. On July 8, 1974, Coy and Shirley executed a joint and mutual will
that specifically provided that all of their property, both real and personal, would vest in
the survivor. The will stated that the property was ―to be used, occupied, enjoyed,
expended and/or conveyed by and during the life of such survivor, as such survivor shall
desire.‖ The will further specified that, upon the survivor’s death, ―any such estate then
remaining shall be divided‖ among Shirley’s and Coy’s children. Under the terms of the
will, the house and lot located in Lufkin was to be given to Shirley’s children and the
house and fifty acres located five miles east of Lufkin was to be given to Coy’s children.
Coy died on August 11, 1974.
       Shirley probated the will and was appointed independent executrix of Coy’s
estate. On October 11, 1976, Shirley signed the following document, which was later
recorded in the deed records of Angelina County, Texas:


                                            AGREEMENT
       THE STATE OF TEXAS                  §
                                                     KNOW ALL MEN BY THESE PRESENTS:
       COUNTY OF ANGELINA                  §

                 THAT WHEREAS, I, Shirley Burges Mosley, a resident of Angelina County,
       Texas, have heretofore been legally appointed as the Executrix of the Estate of Clent Coy
       Burges in Cause No. 5198, pending on the docket of the County Court of Angelina
       County, Texas, sitting in Probate; and
                 WHEREAS, in my capacity as Executrix of the Estate of Clent Coy Burges, I
       have heretofore prepared and filed an Inventory and Appraisement of said estate which
       contained a full and complete inventory of the assets of the estate as well as the debts
       thereof, such appraisement and list of claims being recorded in Volume 95, page 506,
       Probate Records of Angelina County, Texas; and
                 WHEREAS, I, the said Shirley Burges Mosley, desire to enter into an
       Agreement contractually binding upon myself, my heirs, executors, assigns, or any other
       person, firm or corporation which may hereafter because of my action become the
       executrix or executor of the estate of the aforesaid Clent Coy Burges, for and in
       consideration of the benefits received and to be received by me pursuant to the Last Will
       and Testament of the said Clent Coy Burges, deceased, do hereby covenant and agree as
       follows:
                 I, the said Shirley Burges Mosley, do hereby acknowledge the validity of the
       Last Will and Testament of the said Clent Coy Burges, and further covenant and agree
       that I, or any other person, firm or corporation acting in the capacity of executrix or
       executor of the Estate of Clent Coy Burges, shall do all acts and take any such action as is
       necessary to fully carry out the terms and conditions of the Last Will and Testament of
       the said Clent Coy Burges, and I further covenant and agree that I will not sell, dispose
       of, or convey any of the property, real or personal, comprising the Estate of the said Clent
       Coy Burges if such transfer, sale or encumbrance would violate any of the terms or
       provisions of said will or in any way deprive the beneficiaries named therein of any
       benefits, tangible or intangible, which they would otherwise have received pursuant to the
       provisions of said Will; provided, however, that in the event of the sale of any real
       property, I hereby covenant and agree that the house located on East Menefee Street at its
       intersection with South Third Street, Lufkin, Angelina County, Texas, shall be transferred
       only to my children born to me by a previous marriage, and further that the house and
       fifty acres of land located approximately five miles East of Lufkin, Angelina County,
       Texas shall be divided equally between Roger Wayne Burges, Lonnie Ray Burges, Debra
       Kay Burges and Michelle Burges, in equal shares, share and share alike, and any
       remaining property shall be divided equally between my children and the children of
       Clent Coy Burges, share and share alike.
                 I further covenant and agree that I shall execute any and all instruments in
       writing necessary to fully carry out the terms of this agreement, as well as the provisions
       of the Last Will and Testament of Clent Coy Burges, deceased, and each of them.
                 DATED this the 11th day of October, A. D., 1976.
                                                                       ________/s/_________

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                                                                       Shirley Burges Mosley

        THE STATE OF TEXAS                 ()
                                           ()
        COUNTY OF ANGELINA                 ()
                 BEFORE ME, the undersigned authority, in and for said County, Texas, on this
        day personally appeared Shirley Burges Mosley, known to me to be the person whose
        name is subscribed to the foregoing instrument, and acknowledged to me that she
        executed the same for the purposes and consideration therein expressed.
                 GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 11th day of October,
        A. D., 1976.
                                                             ______________/s____________
                                                             Notary Public in and for Angelina
                                                                      County, Texas

        On November 24, 2003, Shirley sold twenty eight acres out of the aforementioned
fifty acre tract east of Lufkin for $84,000.00. Upon learning of the sale, the Burges
children filed suit seeking to have the 1976 agreement declared to be a contract that
Shirley had breached.         Shirley filed her answer alleging eight affirmative defenses,
including lack of consideration and failure of consideration.
        Following discovery, the Burges children filed a traditional motion for summary
judgment seeking a declaration that the agreement was a contract and that they be
awarded, among other relief, legal title and possession of the remainder of the fifty acres,
$84,000.00, attorney’s fees, and interest. Shirley responded by filing both a no evidence
motion for summary judgment and a traditional motion for summary judgment.
Following two hearings, the trial court denied the Burges children’s motion for summary
judgment and granted Shirley’s no evidence summary judgment solely on the ground of
lack of consideration.1 At the same time, the trial court granted Shirley’s traditional
motion for summary judgment solely on the ground of failure of consideration. The
Burges children then timely filed this appeal.

                                       STANDARD OF REVIEW
        We review the trial court’s decision to grant summary judgment de novo. Tex.
  Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007). The
  movant for traditional summary judgment has the burden of showing that there is no
  genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.
  R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

        1
           The court’s final summary judgment stated that the no evidence motion for summary judgment
was also being granted on the ground that there was no evidence that Coy’s children intended to contest the
will of Coy Burges. However, this ground was only a subpart of Shirley’s lack of consideration defense
and therefore we will not address it separately.
                                                    3
To prevail on a summary judgment, a plaintiff must conclusively prove all the elements
of his cause of action as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67
(Tex. 1972). In contrast, a defendant as movant must either negate at least one essential
element of the plaintiff’s cause of action or prove all essential elements of an
affirmative defense. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644
(Tex. 1995). Once the movant has established a right to summary judgment, the
nonmovant has the burden to respond to the motion and present to the trial court any
issues that would preclude summary judgment. See City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
     After adequate time for discovery, a party without the burden of proof at trial may
move for summary judgment on the ground that there is no evidence of one or more
essential elements of a claim or defense. TEX. R. CIV. P. 166a(i). Once a no evidence
motion has been filed in accordance with Rule 166a(i), the burden shifts to the
nonmovant to bring forth evidence that raises a fact issue on the challenged element.
See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.]
1999, no pet.).
     When a party moves for both a no evidence and a traditional summary judgment,
we first review the trial court’s summary judgment under the no evidence standard of
Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no
evidence summary judgment was properly granted, we do not reach arguments under
the traditional motion for summary judgment. See id. When both parties move for
summary judgment, each party must carry its own burden, and neither can prevail
because of the failure of the other to discharge its burden. Guynes v. Galveston
County, 861 S.W.2d 861, 862 (Tex. 1993). When both sides move for summary
judgment and the trial court grants one motion but denies the other, the reviewing court
should review both sides’ summary judgment evidence, determine all questions
presented, and render the judgment that the trial court should have rendered. Tex.
Mun. Power Agency, 253 S.W.3d at 192. In so doing, we first review the order
granting summary judgment and if we determine the order was erroneous, we review
the trial court=s action in overruling the denied motion. Lambrecht & Assoc., Inc. v.
State Farm Lloyds, 119 S.W.3d 16, 20 (Tex. App.BTyler 2003, no pet.). We may then
either affirm the judgment or reverse and render the judgment the trial court should
have rendered, including one that denies both motions. Id.
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                  SHIRLEY’S NO EVIDENCE AND TRADITIONAL MOTIONS
                              FOR SUMMARY JUDGMENT

         In the Burges children’s first issue, they contend the trial court erred in granting
Shirley’s no evidence and traditional motions for summary judgment. We must first
review the trial court’s ruling on the no evidence motion for summary judgment, which
was granted on the ground of lack of consideration.
Lack of Consideration
         Consideration is a fundamental element of every valid contract. Fed. Sign v. Tex.
S. Univ., 951 S.W.2d 401, 408 (Tex. 1997).             Consideration is a present exchange
bargained for in return for a promise and consists of benefits and detriments to the
contracting parties. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.
1991). The detriments must induce the parties to make the promises, and the promises
must induce the parties to incur the detriments. Id.
         Lack of consideration occurs when the contract, at its inception, does not impose
obligations on both parties. Michol O’Connor, O’CONNOR’S TEXAS CAUSES OF ACTION
86 (2009).     The contract lacking consideration lacks mutuality of obligation and is
unenforceable. Fed. Sign, 951 S.W.2d at 409. Lack of consideration is an affirmative
defense. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.–San Antonio 2005, no
pet.).   The existence of a written contract, however, presumes consideration for its
execution. Id. Therefore, the party alleging lack of consideration has the burden of proof
to rebut this presumption. Id.; see also Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex.
App.–Dallas 1992, writ denied) (op. on reh’g) (―A sworn plea of no consideration placed
the burden of proof on Edlund to show there was none.‖).
         Only a party without the burden of proof at trial may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a claim or
defense. See TEX. R. CIV. P. 166a(i). Because Shirley had the burden of proof on the
affirmative defense of lack of consideration, she could not properly move for a no
evidence summary judgment on that ground. See Nowak v. DAS Inv. Corp., 110 S.W.3d
677, 680 (Tex. App. – Houston [14th Dist.] 2003, no pet.). Therefore, the trial court
improperly granted Shirley’s no evidence motion for summary judgment on the ground of
lack of consideration.


                                              5
Failure of Consideration
       The trial court granted Shirley’s traditional motion for summary judgment on the
ground of failure of consideration. Failure of consideration, an affirmative defense,
occurs when, because of some supervening cause after a contract is formed, the promised
performance fails. See TEX. R. CIV. P. 94; U.S. Bank, N.A. v. Prestige Ford Garland
Ltd. P’ship, 170 S.W.3d 272, 279 (Tex. App.–Dallas 2005, no pet.).                 Above, we
explained that there is a ―lack of consideration‖ where a purported contract lacks
mutuality of obligation. Thus, there is a clear distinction between ―lack of consideration‖
and ―failure of consideration.‖ Here, all of the summary judgment evidence produced by
Shirley was designed to show that there was no consideration to support this agreement.
That would be a ―lack of consideration.‖ None of the summary judgment evidence that
Shirley produced established that a contract had been formed and that the performance of
one of the parties failed. Therefore, there was no evidence to establish the affirmative
defense of failure of consideration upon which Shirley’s traditional motion for summary
judgment was granted. See Johnson, 891 S.W.2d at 644. The trial court erred in
granting Shirley’s traditional motion for summary judgment on the ground of failure of
consideration.
       We sustain the Burges children’s first issue.

                      BURGES CHILDREN’S TRADITIONAL MOTION
                             FOR SUMMARY JUDGMENT

       In their second issue, the Burges children contend that the trial court erred in
overruling their traditional motion for summary judgment. They argue that when Shirley
signed the agreement, she promised that if she sold any property belonging to Coy’s
estate, she would divide the ―house and fifty acres‖ among Coy’s children. They further
argue that they presented summary judgment evidence establishing that Shirley breached
the agreement when she sold some of the land in 2003.
       The threshold question in a breach of contract claim is whether a valid contract
exists. See Domingo v. Mitchell, 257 S.W.3d 34, 39 (Tex. App.–Amarillo 2008, pet.
denied). Thus, for the Burges children’s breach of contract claim to be successful, they
first had to establish that there was a valid contract between them and Shirley.
       For a contract to exist, there must be an offer, acceptance, and consideration. Id.
What constitutes consideration for a contract is a question of law. Brownwood Ross Co.

                                             6
v. Maverick County, 936 S.W.2d 42, 45 (Tex. App.–San Antonio 1996, writ denied).
The Burges children contend that the consideration that induced Shirley to execute the
agreement was their promise not to contest Coy’s will. By the time the agreement was
signed by Shirley, Coy’s will had already been admitted to probate. However, a will that
has been admitted to probate is subject to being set aside in a subsequent suit to contest
its validity. Ritter v. Till, 230 S.W.3d 197, 201 (Tex. App.–Houston [14th Dist.] 2005,
no pet.).
        Although the issue of consideration is to be determined as a matter of law, the
recital of consideration in a written instrument is not conclusive, and the nature of the real
consideration may be shown by parol evidence. Lakeway Co. v. Leon Howard, Inc., 578
S.W.2d 163, 166 (Tex. Civ. App.–Tyler), writ ref’d n.r.e., 585 S.W.2d 660 (Tex. 1979)
(per curiam). We therefore must review the summary judgment evidence regarding the
Burges children’s threat to contest the will and determine whether it constituted
consideration for the agreement. In support of their summary judgment, the children
included the deposition testimony of each of them and of Shirley.
        Deborah K. Burges Cook testified that while she was away at college, she
received a phone call from either her grandfather, J. D. Burges, or her brother, asking her
to return home to discuss the possibility of contesting her father’s will. Deborah testified
that she asked her grandfather if there was another way to work something out with
Shirley other than contesting the will. She testified that he said that he would look into it.
Deborah testified that she never threatened Shirley with a will contest. When asked
specifically if her grandfather had told her that he had gone to Shirley threatening to
contest the will, she testified ―no.‖ Lonnie Ray Burges testified that he did not personally
threaten Shirley with a lawsuit. He further testified that he thought his grandfather
threatened Shirley with the will contest. He remembered traveling into the old part of
Lufkin one day with his grandfather, and Lonnie asked him what they were doing. His
grandfather replied, ―I’m just taking care of your land, son.‖ Lonnie testified that ―that’s
all he ever said.‖ Roy Wayne Burges testified by deposition, explaining that he did not
know of any contest to the will at all and he never threatened Shirley with a will contest.
He had no personal knowledge of anyone else threatening her with a will contest.
        Shirley testified that J. D. Burges never told her that he was considering
protesting the will on behalf of the children. She testified that she did not know what his
reason was for asking her to sign the agreement because he did not say. She also testified
                                            7
that he said that if she signed the agreement it would make him feel better. Further, we
note that the purported agreement itself specifically states that the last will and testament
of Coy Burges was valid.
         None of the summary judgment evidence established, as a matter of law, that the
Burges children or their grandfather threatened to contest the will if Shirley did not sign
the agreement. Consequently, they did not show that the agreement Shirley signed was
supported by consideration. In the absence of consideration, the agreement does not
constitute a valid contract. Because the Burges children did not conclusively prove the
existence of a contract, they did not prove all the elements of their cause of action as a
matter of law. Therefore, the trial court correctly denied the children’s traditional motion
for summary judgment.             See Swilley, 488 S.W.2d at 67.   We overrule the Burges
children’s second issue.


                                               CONCLUSION
         The trial court erred in granting Shirley’s no evidence motion for summary
judgment because the rules of civil procedure do not allow a party to move for a no
evidence summary judgment based on an affirmative defense that she has the burden to
prove at trial. The trial court erred in granting Shirley’s traditional motion for summary
judgment because there was no evidence of failure of consideration, the ground upon
which that motion was granted. Conversely, the trial court correctly denied the Burges
children’s motion for summary judgment because they did not prove that the agreement
Shirley signed was supported by consideration and therefore did not prove the existence
of a contract as a matter of law.
         We reverse the trial court’s final summary judgment and remand the cause to the
trial court for proceedings consistent with this opinion.


                                                                   JAMES T. WORTHEN
                                                                       Chief Justice

Opinion delivered January 20, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                                (PUBLISH)


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