                                   NO. 07-08-0012-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                  AUGUST 20, 2009
                          ______________________________

                           SUNDANCE RESOURCES, INC.,

                                                               Appellant

                                             v.

                       OLE BROOK ENERGY SERVICES, INC.,

                                                      Appellee
                        _________________________________

            FROM THE 413TH DISTRICT COURT OF JOHNSON COUNTY;

         NO. C200700069; HON. WILLIAM C. BOSWORTH, JR., PRESIDING
                     _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Sundance Resources, Inc. (Sundance) appealed from a summary judgment granted

in favor of Ole Brook Energy Services, Inc. (Ole Brook) for money owed under a contract

for oil well services and materials. Though fourteen issues were raised by Sundance, we

address only two because they are dispositive. The first concerned the trial court’s refusal

to sustain Sundance’s special exceptions to the motion for summary judgment. The
second involved whether Ole Brook established, as a matter of law, that it had contracted

with Sundance. And, upon considering those issues, we reverse the summary judgment.

       The dispute before us arose from Ole Brook’s alleged provision of well services to

Sundance and the latter’s responsibility to pay for them. Though Sundance was alleged

to be the owner of the property in question, the contracts (work orders) proffered by Ole

Brook name other entities as the contracting parties and recipient of the services

undertaken. Ole Brook moved for summary judgment against Sundance and attempted

to ameliorate this discrepancy regarding the actual parties to the contract by having its

“agent” attest that while the documents name other entities, the contracts are “in fact

between Ole Brook . . . and Sundance Resources, Inc.”

       In response to the motion, Sundance uttered, in writing, various special exceptions

to it. The trial court overruled those exceptions, granted the motion, awarded Ole Brook

approximately $284,000 in damages, $94,000 in attorney’s fees, and foreclosure upon its

purported mechanics and materialmen’s lien. Thereafter, Sundance appealed.

       Special Exceptions

       Sundance initially complained of the trial court’s failure to grant its special

exceptions to the motion for summary judgment. Through those exceptions, it asserted

that Ole Brook “alleged four separate causes of actions/claims in its petition” and that it

“has failed to identify the elements of any of its claims, and . . . failed to cite any authority

as the basis for which it moved for summary judgment.” We sustain the issue.

       Whether the trial court erred in overruling the exceptions depends on whether it

abused its discretion. Baylor University v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).

We also note that a motion for summary judgment must state the specific grounds upon

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which it is sought. TEX . R. CIV. P. 166a(c); Clement v. City of Plano, 26 S.W.3d 544, 549

(Tex. App.–Dallas 2000), overruled on other grounds by Telthorster v. Tennell, 92 S.W.3d

457 (Tex. 2002). Those grounds must be expressly stated in the motion itself and not in

the brief (unless the brief is incorporated into the motion) or in the summary judgment

evidence.      Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997);

Madisonville State Bank v. Canterbury, Stuber, Elder, Gooch & Surratt, P.C., 209 S.W.3d

254, 259 (Tex. App.–Dallas 2006, no pet.).

        Ole Brook’s original petition encompassed allegations involving breached contract,

sworn account, lien foreclosure, and the recovery of attorney’s fees. However, via its

summary judgment, Ole Brook merely alleged the existence of a contract between it and

Sundance and that pursuant to the contract, Sundance became obligated to pay it a

specific amount of money upon which there remained an unpaid balance. It did not state

the basis upon which it sought summary judgment, that is, whether it was seeking recovery

via a sworn account or through a claim of breach of contract. Nor did it address either the

element underlying a claim for breached contract or illustrate that it performed as required.1

See Clement v. City of Plano, 26 S.W.3d at 550 (finding the motion insufficient to support

summary judgment when the movant failed to identify or address the elements of its

affirmative defense in its motion as opposed to its brief). Thus, Ole Brook’s motion failed

to specifically set forth the grounds for summary judgment, and the trial court abused its

discretion in failing to sustain the special exceptions.



        1
         The affidavit of Jam ie Jones did state that Ole Brook had perform ed all of its obligations under the
contract. However, as already stated, we m ay not look to the evidence in determ ining whether Ole Brook has
specifically set forth the grounds for its m otion.

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       Party to the Contracts

       Sundance also posited that a material question of fact existed as to whether it was

a party to and liable under the contracts at issue. As previously mentioned, the documents

named other entities as the obligors, though Sundance was mentioned as the property

owner. Furthermore, Sundance, via the affidavit of its chief operating officer, stated that

it was neither affiliated nor in privity with the named obligors. And, while Ole Brook’s agent

stated that Sundance was actually the contracting party, his statement was conclusory.

Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex. App.–Dallas 2008, no pet.) (stating that

conclusory factual statements are not competent summary judgment evidence). No effort

was made to explain how the names of the other entities came to appear on the contracts

if Sundance was truly the responsible party. In sum, and at the very least, there existed

a material issue of fact regarding the identity of the contractual obligors, and because one

existed, the trial court could not enter summary judgment for Ole Brook as a matter of law.

       Accordingly, the final summary judgment is reversed and the cause is remanded.



                                                  Brian Quinn
                                                  Chief Justice




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