                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00154-CV

PEKKA JOKI, AS TRUSTEE OF THE
JOKI LIVING TRUST,
                                                            Appellant
v.

ALBERT AND JULIA SPRINGER,
                                                            Appellee


                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 25758


                          MEMORANDUM OPINION


      Pekka Joki, as Trustee of the Joki Living Trust, appeals the trial court’s grant of a

summary judgment against Joki. Because the trial court erred in ruling on the motion

for summary judgment before allowing Joki to conduct discovery, the trial court’s

judgment is reversed and this case is remanded to the trial court for further

proceedings.
        After Albert and Julia Springer brought an action against Joki for trespass to try

title and for a declaratory judgment to determine ownership of a particular piece of

land, Joki and the Springers entered into a mediated settlement agreement where,

generally, Joki agreed to sell the disputed land to the Springers for $5,000. Later, Joki

refused to follow through with the agreement and the Springers amended their lawsuit

to include a claim for breach of contract for Joki’s breach of the mediated settlement

agreement. Joki filed an amended answer which denied the execution of the settlement

agreement and raised various affirmative defenses.         Two business days later, the

Springers filed a motion for summary judgment. Joki responded, filing one document

in which Joki responded to the Springer’s motion for summary judgment, objected to

the Springers’ summary judgment evidence, presented a cross-motion for summary

judgment, presented special exceptions, and requested a continuance. The continuance

was requested to allow Joki the ability to conduct discovery. A month later, the trial

court granted summary judgment in favor of the Springers.

        Because it could be dispositive of this appeal, we address Joki’s third issue first.

In that issue, Joki contends the trial court erred in impliedly denying his motion for

continuance and granting summary judgment prior to any discovery regarding the

Springers’ breach of contract claim.

        Like any other breach of contract claim, a claim for breach of a settlement

agreement is subject to the established procedures of pleading and proof. Ford Motor


Joki v. Springer                                                                      Page 2
Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Mantas v. Fifth Court of Appeals, 925

S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (per curiam). Parties are "entitled to full,

fair discovery" and to have their cases decided on the merits. Ford Motor Co., 279

S.W.3d at 663; Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995) (orig.

proceeding). A trial court abuses its discretion when it denies discovery going to the

heart of a party's case or when that denial severely compromises a party's ability to

present a viable defense. Ford Motor Co., 279 S.W.3d at 663; Able, 898 S.W.2d at 772; see

State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) ("Only in certain narrow circumstances is

it appropriate to obstruct the search for truth by denying discovery."). The validity of a

settlement agreement cannot be determined without "full resolution of the surrounding

facts and circumstances." Ford Motor Co., 279 S.W.3d at 663; Quintero v. Jim Walter

Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983).

        The Springers contend that the trial court did not err because Joki did not file an

affidavit explaining his need for discovery or a verified motion for continuance, citing

Joe v. Two Thirty Nine J.V., 145 S.W.3d 150 (Tex. 2004). However, as the Texas Supreme

Court stated in Ford Motor Co., in the cases requiring a party to file an affidavit or a

motion for continuance, the parties had already conducted formal discovery and were

seeking time to conduct additional discovery. Ford Motor Co., 279 S.W.3d at 662. Like in

Ford, Joki is complaining that the trial court denied Joki any discovery on the Springers’

breach of contract action.     And by granting the Springers’ motion for summary


Joki v. Springer                                                                     Page 3
judgment without first permitting discovery, the trial court implicitly denied Joki’s

continuance to permit discovery.        Accordingly, because Joki had not been able to

conduct any discovery on the Springers’ breach of contract claim, the trial court abused

its discretion in denying Joki that opportunity.

        Nevertheless, even if the trial court abuses its discretion in a discovery ruling, the

complaining party must still show harm on appeal to obtain a reversal. Ford Motor Co.,

279 S.W.3d at 667; see TEX. R. APP. P. 44.1(a). Harmful error is error that "probably

caused the rendition of an improper judgment" or "probably prevented the appellant

from properly presenting the case to the court of appeals." TEX. R. APP. P. 44.1(a).

        The movant in a traditional summary judgment motion, as it appears the

Springers have filed, has the burden to show that no genuine issues of material fact

exist and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether

there are disputed issues of material fact, we take as true all evidence favorable to the

nonmovant and indulge every reasonable inference in the nonmovant's favor. Nixon,

690 S.W.2d at 548-49. Once the movant establishes its right to summary judgment as a

matter of law, the burden then shifts to the non-movant to present evidence raising a

genuine issue of material fact which precludes the summary judgment. See City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Talford v. Columbia

Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex. App.—Dallas 2006, no


Joki v. Springer                                                                        Page 4
pet.). Further, a party relying on an affirmative defense to defeat a motion for summary

judgment must raise a genuine issue of fact as to each element of the defense. Brownlee

v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Birenbaum v. Option Care, Inc., 971 S.W.2d

497, 504 (Tex. App.—Dallas 1997, pet. denied).

        Joki questions the validity of the mediated settlement agreement itself and the

validity of the alleged “addition” of “Houston County” to the location of the property.

These questions go to the heart of Joki’s defense. And although Joki had made a

request for disclosures in its amended answer, the time had not yet run for those

disclosures to be made. And even if the Springers established a right to summary

judgment as a matter of law, a decision we do not make, Joki could not then sustain his

burden because he had not been permitted to conduct discovery. Thus, the trial court’s

implicit denial of Joki’s request for discovery was harmful.        Joki’s third issue is

sustained, and we need not discuss his first and second issues.

        Accordingly, we reverse the trial court’s judgment and remand this case to the

trial court for further proceedings consistent with this opinion.

        The Springers’ Motion for Expedited Consideration Without Oral Argument is

dismissed as moot.




                                          TOM GRAY
                                          Chief Justice



Joki v. Springer                                                                   Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Motion dismissed as moot
Opinion delivered and filed November 13, 2014
[CV06]




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