author: Opinion by Chief Justice MORRISS.

text:
    In the ESTATE OF Patricia Raye HALBERT, Deceased.
    No. 06-04-00074-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 17, 2005.
    Decided Aug. 18, 2005.
    Rehearing Overruled Sept. 27, 2005.

      John R. Mercy, Mercy & Carter & Tid-well, LLP, Texarkana, M. Keith Dollahite, M. Keith Dollahite, PC, Tyler, for appellant.
    Ken W. Good, Kent, Good & Anderson, PC, Tyler, for Jane Carroll.
    Michael E. Gazette, Law Office of Michael E. Gazette, Tyler, for Judy Box.
    Howard W. Britain, Tyler, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

Patricia Raye Halbert died in 2000. She left behind three putative wills and her immediate family — husband, Robert L. Halbert (Robert), and three adult children, Robert Stephen Halbert (Steve), Judith H. Trickey Box (Judy), and Patti Jane H. Carroll (Jane) — divided on which of the three wills should be probated. Robert urged the probate of Will Three, while Judy urged the probate of Will Two. Ultimately, the dispute led to a mediation and a partial Mediated Settlement Agreement (MSA), which is the subject of this appeal.

In competing motions for summary-judgment arising from what became rather convoluted litigation, Judy sought to enforce, and Robert sought to have declared unenforceable, the MSA. The trial court granted Judy’s motion for summary judgment to enforce the MSA and denied Robert’s motion.

In this opinion, we (A) set out a more detailed account of the factual and procedural history of this case, and then (B) provide our decision and legal analysis: we hold that (1) the MSA is an agreement not to probate a will — so it must provide an alternative distribution scheme — but (2) the MSA does not provide an alternative distribution scheme — so it is unenforceable. We reverse the judgment of the trial court and render judgment that the MSA is unenforceable.

(A) FACTUAL AND PROCEDURAL HISTORY

Robert and Patricia Halbert were married and had three children: Steve, Judy, and Jane. In 1980, Patricia executed her first will (Will One). In this will, she named Robert the independent executor and left all her property to him unless he predeceased her, in which case the property would go to their three children.

In 1986, Patricia executed a second will (Will Two), in which she named Judy as independent executor and left all her property to the three children. Will Two made no provision for Robert.

In 1997, Patricia executed a third will (Will Three), a holographic instrument which republished Will One. Two months following the execution of Will Three, Patricia executed a deed conveying all her real property to Robert (1997 Deed). This deed was recorded later in time, approximately one month before Patricia’s death on July 3, 2000.

Robert applied to probate Will One pursuant to the terms of Will Three. Judy contested Robert’s application to probate Will One and applied to probate Will Two, in which all of Patricia’s property went to the children. Robert then filed an amended application to probate Will Three which, he argued, republished Will One or, alternatively, revoked Will Two, causing Patricia’s estate to pass by intestacy. As we will discuss further at a later point, Jane, the youngest child, entered her first appearance, stating that she was a beneficiary under Will Two and renouncing any right to serve as personal representative. The parties then jointly moved to “issue an order requiring the parties to submit this matter to mediation.” The trial court granted this motion.

On September 10, 2001, Robert and the three children attended a mediation from which came the MSA. Boilerplate, introductory provisions of this MSA indicate that the parties “have agreed to settle the above-referenced cause on the terms set forth herein, and enter into this Agreement on said date.” The MSA also provides that, “in the event of any dispute arising from the mediation or this Agreement, the parties agree to submit same” to the named mediator. The MSA also included the following provisions:

The parties understand that it is intended that there is to be a more comprehensive compromise settlement agreement; releases, and/or further documentation of this settlement; nevertheless, the parties intend this Agreement to comply with the requirements of Rule 11 T.R.C.P., and Section 154.071, T.CJP.R.Code.
Each party agrees to execute and file an agreed order dismissing all claims in the above case with prejudice.
The parties agree that, as soon as possible, a closing of this transaction shall occur when the parties will exchange executed settlement documents and exchange the consideration called for.

In the handwritten, sometimes difficult to read, substantive portions of the MSA, Judy agrees to release any claims she has against the estate and against Robert in exchange for real property, specifically Lot 2B, Block 1013 on Loop 323 in Tyler, Smith County, Texas, worth approximately $1.2 million.

The MSA provides that Robert, Steve, and Jane “will resolve agreement between themselves within 10 days.” No one disputes the fact that Steve and Jane never reached an agreement with Robert in this matter. Robert and Steve signed the MSA as defendants. Jane’s attorney signed on the defendant’s side of the page, on Jane’s behalf, with the limitation that the MSA was “approved as to settlement with Jane.”

The MSA appears to be intended as a settlement only of Judy’s claims on the estate or against her other family members. Jane had made an appearance in the will contest but had not taken an adversarial role at that point. Later, although she had been treated in the pleadings as a defendant, Jane filed her own contest to Robert’s application to probate Will Three.

Jane argued below that the trial court should deny Judy’s motion for summary judgment. In the trial court’s final order, Jane is named as a defendant. In response to Judy’s motion to enforce the parties’ MSA, Jane filed her answer and denied all of Judy’s allegations. Summary judgment was granted against Robert, Steve, and Jane, but Judy’s award for attorney’s fees was imposed against only Robert and Steve.

However, despite her role in the proceeding below, Jane has filed an appellee’s brief in this matter and now argues to this Court that “the trial court was correct in granting [Judy’s] traditional and no evidence motion for summary judgment and in denying [Robert’s] motion for summary judgment.” So, Jane now takes the position that the MSA is valid and enforceable.

Shortly after the MSA was signed, Judy sued to cancel the 1997 Deed. Judy’s suit alleged that the deed did not have a sufficient property description to be valid. Judy explains in her brief that this suit was instituted at the request of Robert’s attorneys, using pleadings prepared by them. The record supports this contention as well through a letter from Robert’s former attorney discussing the strategy that Judy file this suit, and then the parties would settle that suit, resulting in title to Lot 2B vesting in a manner “contemplated by the agreement.” Judy’s suit to cancel the 1997 Deed was consolidated into the will contest, where it is still pending.

On November 16, 2001, Judy also filed a pleading in the will contest alleging that she was ready to perform under the MSA, that Robert had failed to comply with the MSA, and that the trial court should order specific performance of the MSA (“Motion for Specific Performance of Mediated Settlement Agreement”). Robert denied the MSA was a valid and enforceable contract and asserted several affirmative defenses to Judy’s claim for specific performance. Steve and Jane denied Judy’s allegations seeking to enforce the MSA. Later, however, Jane sought to probate Will Two, a change in her prior strategic position.

Robert sought summary judgment, attacking the validity of the MSA on the following grounds:

1. Judy repudiated the MSA by filing her new lawsuit to cancel the 1997 Deed nine days after mediation.
2. The MSA is unenforceable as a family settlement agreement under In re Estate of Morris, 577 S.W.2d 748 (Tex.App.-Amarillo 1979, writ ref'd n.r.e.).
3. The MSA is not sufficiently certain to be an enforceable contract.

Jane opposed those grounds and sought summary judgment against Robert, Steve, and Jane, seeking to enforce the MSA on two grounds:

1. Robert, Steve, and Jane breached the MSA, entitling Judy to specific performance.
2. There is no evidence to support Robert’s affirmative defenses.

Robert, Steve, and Jane opposed Judy’s effort to obtain summary judgment.

The trial court denied Robert a summary judgment and granted Judy a summary judgment. It also ordered Robert, Steve, and Jane to

each specifically perform the terms of the [MSA] by executing the deed or deeds called for by such agreement to [Judy] conveying all of the Defendants’ right, title, and interest to [the Lot] contemporaneously with the tender to Defendants of a written, signed document or documents by which she release any claims she has against [Robert] and the Estate of [the Decedent] and assumes the tax liability agreed upon in such agreement.

The trial court further provided, “Trial is set on the claim of [Judy] for attorney’s fees on the — day of, 2002.” The trial court failed to set any date for such trial. Robert appealed the order to the Twelfth Court of Appeals in Tyler, but that court dismissed the appeal, holding that the order was not a final probate order subject to appeal.

A jury trial was held, and as a result the trial court awarded attorney’s fees to Judy against Robert and Steve. Each party then submitted a proposed judgment and objected to the other’s proposal. Ultimately, the trial court, again, adopting Jane’s proposed judgment, signed its “Final Judgment Regarding Mediated Settlement Agreement.” The judgment repeats many of the same conclusions contained in the earlier order and, of course, adds the jury’s verdict regarding attorney’s fees. It also addresses matters not covered by the MSA or by the parties’ motions for summary judgment.

(B) DECISION AND LEGAL ANALYSIS

We review summary judgments de novo. Tex.R. Crv. P. 166a(c); Rolling Lands Invs., L.C. v. Northwest Airport Mgmt., L.P., 111 S.W.3d 187, 193 (Tex.App.-Texarkana 2003, pet. denied). The movant has the burden of showing that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Id. Every reasonable inference must be indulged in favor of the nonmov-ant. Id. When both parties file motions for summary judgment and the trial court grants one and denies the other, we review both motions, determine all questions presented, and render the judgment the trial court should have rendered. Id.

(1) The MSA Is an Agreement Not To Probate a Will

A family settlement agreement is an alternative method of administration in Texas that is a favorite of the law. See Shepherd v. Ledford, 962 S.W.2d 28, 32 (Tex.1998); In re Estate of Hodges, 725 S.W.2d 265, 267 (Tex.App.-Amarillo 1986, writ ref'd n.r.e.).

Robert cites In re Estate of Morris, 577 S.W.2d 748, to support his argument that the MSA is unenforceable since it does not meet the requirements of a valid family settlement agreement.

In Morris, the decedent’s first will devised all of her property to her surviving husband. Id. at 751. This will was admitted to probate. Id. A second will, executed three years later, left only $1.00 to her surviving husband, and the remaining property in her estate to their two children. Id. Soon after the decedent’s funeral, the decedent’s two children had agreed to destroy the second will because it would upset their father. Id. at 751. Later, the decedent’s daughter applied to probate this second will. Id.

Addressing this situation in terms of the family settlement doctrine, the Amarillo court held that the two children had agreed to not probate the second will but had failed to agree to an alternate plan of distribution and that, therefore, the agreement was ineffective, as a family settlement agreement, to deny probate of the second will. Id. at 756. The court emphasized that an agreement not to probate a will must be accompanied by an agreement as to the distribution of the property. Id. The court held that the children’s knowledge of the 1965 will was insufficient to constitute an agreement between the two of them as to the distribution of the property. Id.

The family settlement doctrine involves three basic principles: the decedent’s right to make a testamentary disposition, the beneficiaries’ right to convey their rights, and balancing those competing rights by requiring an agreement to an alternative distribution plan.

Caselaw on the family settlement doctrine supports the conclusion that the family settlement doctrine is applicable generally when there is a disagreement on the distribution of an estate and the beneficiaries enter into an agreement to resolve the controversy. Judy advances at least two arguments why the doctrine does not apply here.

First, Judy argues that, since the MSA contemplates that a will eventually will be probated, the family settlement doctrine does not apply here. This position- — -that the family settlement doctrine is only applicable when the parties agree to not probate any will — is inconsistent with caselaw. Moms applied the family settlement doctrine on very similar circumstances, when the parties agreed to not probate one will and left another will to be probated. See id. at 756-57. The fact that the parties here intend to probate one of the three wills is not relevant to the applicability of the doctrine. The relevant consideration is whether the MSA will have some impact on the distribution of the estate.

Second, Judy argues that the doctrine does not apply because the land to be transferred is, arguably, not estate property. Since it is unclear whether her father owned Lot 2B, Block 1013 by virtue of the 1997 Deed, Judy maintains, this dispute does not involve an agreement not to probate a will and to redistribute estate property. Thus, she contends, this matter falls outside the family settlement doctrine. It is important, however, to look at the nature of the dispute and the attempted resolution itself, rather than the nature of the consideration underlying the agreement or the property being transferred pursuant to the agreement. No matter the ownership of the property constituting consideration, the potential beneficiaries are at odds with one another regarding the distribution of Patricia’s estate. Judy was, in effect, exchanging her claims to the estate for the real property.

We also point out the intended effect of the MSA. The parties purportedly entered into the MSA to “to settle the above-referenced cause,” meaning the pending will contest. That is, the parties are attempting to settle their differences over the distribution of Patricia’s estate. And Judy’s agreement to dismiss her claims in the will contest and to release any claim against her mother’s estate are the equivalent of abandoning her application to probate Will Two and relinquishing any right she might have asserted under Will Two.

The MSA certainly invokes the family settlement doctrine. It necessarily involves an agreement, by at least one of the parties, to not probate at least one will, altering the distribution of the estate. In fact, the family settlement doctrine has been applied when there was only “a threat” of a will contest by the beneficiaries under an earlier will if the later will were probated. Fore v. McFadden, 276 S.W. 327, 329 (Tex.Civ.App.-Texarkana 1925, writ dism’d). Here, the controversy had proceeded to a formal judicial proceeding on the will contest issue. So, this situation is the type of situation for which the family settlement doctrine was designed. In order to settle the pending controversy, the family would have had to enter into an agreement that meets the specific requirements and addresses the policy concerns of the family settlement doctrine. Otherwise, the MSA is unenforceable and cannot serve as a substitute for Patricia’s testamentary disposition, even though the parties disagree as to her intent.

Here, as there was in Morris, there is clearly a controversy over which of Patricia’s wills should be probated. By the terms of the MSA, “[e]ach party agree[d] to execute and file an agreed order dismissing all claims in [cause number 30,319, the will contest], with prejudice.” This general provision would have the effect of Judy relinquishing her claim that Will Two should be probated, leaving the estate to pass by the terms of Will One or, in the alternative, to pass through intestate succession in accordance with Robert’s amended application. It appears that it would also have the effect of Robert withdrawing his application to probate Wills One and Three. Judy separately agreed to relinquish any claim in the estate or against her father in exchange for the land in question. So, this constitutes a specific agreement between at least two of the parties to not probate Will Two.

Reading the MSA, we see that there is an agreement not to probate a will. In fact, it could be said that there are several agreements not to probate a will; it is just unclear which will, if any, would be probated ultimately. The uncertainties, however, are more relevant to the second element of the family settlement doctrine — that the agreement also provide an alternate plan of distribution of estate property.

(2) The MSA Does Not Provide an Alternative Distribution Scheme

The law allows for an implied plan of distribution within a family settlement agreement. But courts will not readily imply such a plan for the parties:

[I]t must appear that an [implied] agreement for the disposition of the property was so clearly within the contemplation of [the parties] that they deemed it unnecessary to express it and, therefore, omitted to do so.

Morris, 577 S.W.2d at 757. The parties can even agree to not probate a will and to allow the estate to pass through the intestacy statutes. See Cook v. Hamer, 158 Tex. 164, 167, 309 S.W.2d 54, 56 (1958); Hopkins v. Hopkins, 708 S.W.2d 31, 32 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). In such situations, the parties, essentially, agreed to let the law redistribute the estate.

Here, we must determine whether the putative beneficiaries’ agreements in the MSA constitute a sufficiently clear plan to distribute the estate. Since the MSA’s provisions could be read to provide for distribution in accordance with the terms of Will One, in accordance with intestate succession, or solely in accordance with agreements contemplated yet nonexistent among the parties, the MSA leaves open a number of possible, but unclear, ways the estate might be distributed if the MSA were enforced. We examine those possibilities.

Probate of Will One. Since Judy was the only child with a clearly contrary position at the time of the MSA and since Robert did come to an agreement with her, it could be said that her separate agreement to relinquish her claims against the estate and against Robert would lead to the conclusion that the estate would pass as it would have absent Judy’s contest, under the terms of Will One. While this reading of the MSA and interpretation of an alternate plan of distribution would be the most straightforward, it is undermined by the clear references in the MSA that a future agreement was contemplated, yet not ever reached, among Robert, Steve, and Jane. Additionally, Jane’s signature limiting her agreement to only the agreement made with Judy appears to reserve her right to enter her own, different, agreement with her father, even if such would conflict with the MSA. All parties agree that no such contemplated agreement was ever reached. We must conclude that the parties, in the MSA, did not agree to distribute Patricia’s estate in a manner consistent with Will One.

Intestate Succession. If there is no will to be probated, then it could be said that the estate would pass through intestate succession. This method of distribution could be a logical reading of the MSA, since all parties agree to dismiss their claims in the will contest action. But we cannot imply such an agreement to distribute the estate in this manner. Such a plan was “not so clearly within the contemplation of [the parties] that they deemed it unnecessary to express it.” Estate of Morris, 577 S.W.2d at 757. In fact, the parties did not contemplate distribution through intestate succession. First, the MSA clearly references other, future, agreements to be made. Also, we note that Jane later filed her own application to probate Will Two. Finally, Judy urged at oral argument before this Court that one of the wills will eventually be probated.

Distribution by Future Agreement Only. Perhaps, the most sound reading of the MSA would be that the parties contemplated probating no will, but would instead resolve the dispute by a future agreement. Of course, even if this were the case, all parties now agree that the remaining anticipated agreement was never reached, leaving, in fact, absolutely no plan of distribution.

In sum, since the MSA leaves these uncertainties, we conclude that it fails to satisfy the rather stringent requirements of the family settlement doctrine that an agreement provide an alternate plan for distributing estate property.

We sustain Robert’s first point of error. The MSA is unenforceable as a matter of law. Due to the disposition of that issue, it is unnecessary to address the remaining points of error.

Accordingly, we reverse and render judgment that Judy take nothing by her action to enforce the MSA and to be paid her attorney’s fees in that action.

      . The first Will (Will One), dated in 1980, left all of Patricia's property to her husband, Robert. The second Will (Will Two), dated in 1986, left everything to the three children, Steve, Judy, and Jane, leaving nothing to Robert. The third Will (Will Three), dated in 1997, republished Will One, thus leaving everything, once again, to Robert.

      . Later in this opinion, we detail the MSA terms which are relevant to this appeal.

      . Apparently, Robert and Patricia executed "mirror image” deeds, one from Patricia in favor of Robert and the other from Robert in favor of Patricia; contemplating that only one would be recorded.

      . Steve, the oldest child, although present during mediation, was not a formal party in these proceedings.

      . Judy was the only person contesting Robert’s application to probate Will One or Will Three at the time the MSA was created. Jane later formally contested the will.

      . This result may be attributable to the fact that the trial court accepted and signed Jane’s proposed form of judgment.

      .Judy also recorded a "Notice of Lis Pen-dens” in the land records in which she stated that the title to all the property conveyed by Patricia to Robert by the 1997 Deed was in dispute. This went beyond the property subject to the MSA.

      . Halbert v. Box, No. 12-02-00342-CV, 2003 WL 21254918, 2003 Tex.App. LEXIS 4641 (Tex.App.-Xyler May 30, 2003, pet. dism’d w.o.j.) (not designated for publication).

      . The Right to Testamentary Disposition. A decedent has the statutory right to dispose of his or her property on death in a manner he or she sees fit. Tex. Prob.Code Ann. § 57 (Vernon 2003). The courts must protect this right as a matter of public policy: "[N]either courts, juries, relatives nor friends of a testator may say how property should be passed by a will or rewrite a will because they do not like the distribution of the property.” Morris, 577 S.W.2d at 755.

      . Beneficiaries’ Right to Convey. The second principle underlying the family settlement doctrine recognizes that, on the death of the testator, title of the property in the estate vests in the beneficiaries. Under Section 37 of the Texas Probate Code, when a person dies leaving a will, all of the estate devised or bequeathed by the will immediately vests in the devisees or legatees, subject to payment of the decedent's debts. Shepherd, 962 S.W.2d at 32. The beneficiaries of an estate are free to arrange among themselves for the distribution of the estate and for the payment of expenses from that estate. See Tex. Prob.Code Ann. § 37 (Vernon 2003); Shepherd, 962 S.W.2d at 32. That being so, the beneficiaries have the right to convey the property after distribution of the estate. Morris, 577 S.W.2d at 755. Pointing out that it makes little sense to limit the right of conveyance before receipt in the regular course of administration of the estate and adding that agreements among the family can end controversies through compromise, the Morris court expressed that family settlement agreements are favored by the law. Id.

        .Balancing Rights by Requiring an Agreement to an Alternative Distribution Plan. To balance the first two principles, the courts impose certain requirements on a family settlement agreement. A valid family settlement agreement must contain both an agreement not to probate a will and an agreed plan of distribution to replace the plan set forth in the will. Id. at 756. Put another way, if the beneficiaries’ settlement does not dispose of all the estate’s property, then it cannot replace the will and perform the function of transferring title to the decedent's estate. See id.

      . It will, later, become relevant to the inquiry whether the purported settlement provided an alternate plan of distribution.

      . We add that Judy has also maintained the contrary position in her pleadings in her action to cancel the 1997 Deed when she alleged that the 1997 Deed failed to convey the real property to Robert. That would mean that the real property belonged to the estate. While we understand that this may have been a tax reduction technique, we cannot ignore the fact that Judy has tried to maintain two directly contrary positions in these proceedings.

      . Of course, in theory, under the MSA, another child could have applied to probate Will Two. In fact, later in the dispute, Jane did make such application.

      . To the extent that the handwritten provision calling for future agreement among Robert, Jane, and Steve is seen to conflict with the typewritten, boilerplate provision that all parties are relinquishing their claims in the litigation, and thus releasing all claims to probate any will, the handwritten provision controls, calling for the future agreement among the parties. See J.K. Hughes Oil Co. v. Mayflower Inv. Co., 193 S.W.2d 971, 973 (Tex.Civ.App.-Texarkana 1946, writ ref'd); Martin v. Southern Engine & Pump Co., 130 S.W.2d 1065, 1066 (Tex.Civ.App.-Galveston 1939, no writ); Producers’ Oil Co. v. Snyder, 190 S.W. 514, 516 (Tex.Civ.App.-Fort Worth 1916, no writ).

      . We do not consider or pass on the merits of the pending will contest. Rather, our holding simply means that the disputes were not settled through this MSA, since it fails as a family settlement agreement.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Jim REID, Appellant, v. COMPASS GROUP USA, INC. d/b/a Chartwells School Dining Service, Appellee.
    No. 08-04-00263-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 18, 2005.

      Dana T. Blackmore, Law Office of Dana T. Blackmore, Houston, for Appellant.
    Blaine Hummel, Ireson & Weizel, P.C., Houston, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a summary judgment granted in favor of Appellee in a lawsuit filed by Appellant as the result of personal injuries he allegedly sustained on the premises of the University of Houston Clear Lake Campus. Appellant Jim Reid was working on the premises in question when he allegedly came in contact with a live wire causing him to suffer an electrocution and serious injuries. Appellee filed a motion for summary judgment which contained grounds alleging both traditional and “no-evidence” grounds for dismissal. The trial court granted the motion without specifying the grounds. Appellant appeals in two issues challenging the court’s granting of the summary judgments. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

On March 9, 2001, Appellant was performing maintenance and service work in the cafeteria of the University of Houston Clear Lake Campus when he came in contact with a live wire and was electrocuted. Appellee Compass Group USA, Inc. d/b/a Chartwells School Dining Service (“Chart-wells”) provided food services for the campus pursuant to a contract with the University of Houston. Chartwells hired Gerald Cruz & Associates to handle certain renovation work to be performed in the cafeteria. Some time after the renovations were completed, Appellant was performing services for the University of Houston and was injured by coming in contact with a live wire. Appellant contends that Chartwells, with co-Defendant Cruz, was negligent for the failure to remove the live wire. Appellant filed suit against both Chartwells and Gerald Cruz & Associates. Chartwells filed a motion for summary judgment raising both traditional and “no-evidence” grounds. On May 7, 2004, the trial court granted Chartwells’ motion without specifying the grounds. Chartwells filed a motion to sever the action below which was granted.

This appeal follows.

II. DISCUSSION

A. Issues on Appeal

In Issue No. One, Appellant argues that the trial court erred in granting Chart-wells’ motion for summary judgment on traditional grounds. We read this as a legal and factual sufficiency of the evidence challenge, though Appellant’s issue on appeal only contains general language and does not complain of the specific error to be addressed on appeal.

In Issue No. Two, Appellant argues that the trial court erred in granting Chart-wells’ no-evidence motion for summary judgment again only using general language without specifying the basis for the challenge.

Upon review of the motion for summary judgment, the replies, and the evidence filed in the record, we agree that the “no-evidence” motion was properly granted. For that reason, we initially consider Appellant’s Issue No. Two and find that our disposition of that issue is dispositive of this appeal.

B. Summary Judgment Standard of Review

In reviewing a trial court’s granting of a summary judgment on appeal, the standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.-El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the mov-ant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. See Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. See Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiffs causes of action, then summary judgment should be granted. See Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 38, 34 (Tex. 1983); Cortez, 885 S.W.2d at 469. Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989).

Under the “no-evidence summary judgment” rule, the movant may move for 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 the nonmovant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. The reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. See, e.g., Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n. 3 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (commenting that under Rule 166a(i) “the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiff’s case against each defendant”).

The San Antonio Court of Appeals states the applicable standard of review for no-evidence summary judgments as follows: “ ‘A no-evidence summary judgment is essentially a pretrial directed verdict,’ and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.” Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998) (no-evidence summary judgment is essentially pretrial directed verdict).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the non-movant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. See Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

C. Issue Number Two

In Issue No. Two, Appellant argues that the trial court erred in granting Appellee’s no-evidence summary judgment under Tex.R. Civ. P. 166a(i) relating to the Appellant’s claims under a premises defect theory of liability. Appellant contends that Chartwells’ motions for summary judgment were based only on a negligent activity theory of liability and, therefore, should not defeat Appellant’s claims because Appellant has pleaded a premises defect theory of liability. Appellant, in fact, concedes that Appellant is not claiming that Chartwells was responsible for Cruz’s contemporaneous work activities and that Appellant never asserted a negligent activity theory of liability. His theory relies on his belief that Chartwells had general responsibility as the premises occupier to insure that the premises occupied by it was safe.

A review of Appellant’s first amended original petition reflects that he is complaining of the fact that he came in contact with a live wire which was left in an artificial ceiling of the school’s cafeteria which caused him to be electrocuted causing him corresponding damages.

His negligence allegations consist of three paragraphs which assert claims against both Chartwells and Cruz alleging:

(15) “a duty to return the cafeteria to the safe condition in which it was found before the renovation project was started.
(16) [they] ... failed to remove the wiring and had reports, verbal and written, provided by engineers stating there was faulty wiring.
(17) [d]ue to both Defendants’ failure to make sure all wiring was properly removed, an employee ... came in contact with a live wire.”

Appellant sought damages for the injuries he allegedly suffered.

Appellee filed a motion for summary judgment against all the causes of action asserted by the Plaintiff alleging traditional grounds based on a lack of duty to insure the performance of an independent contractor for the work performed on the premises and as a “no-evidence” motion for summary judgment under Texas Rules of Civil Procedure Rule 166a(i). The trial court granted the motion without specifying the grounds. We note for the record that Appellant’s response is replete with broad references to discovery which Appellant indicates he has undertaken, to provide proof in this matter of his diligence in attempting to seek proof of the facts in issue. His response, nevertheless, is lacking in proof of specific factual allegations that are sufficient to defeat the motions. Appellant attaches four exhibits as summary judgment proof to his response. Exhibit A is Defendant’s motions and response to Plaintiffs response. Exhibit B consists of the deposition of Nick lula, an employee of Chartwells. Exhibit C consists of the deposition of Pamela Groves, an employee of the University of Houston. Exhibit D is a copy of excerpts from the contract between Chartwells and the University of Houston. Reid divides his response between the no-evidence motion and the traditional motion. Neither response, however, presents more than a scintilla of evidence to defeat the motions presented by Chartwells. Reid emphasizes that he has engaged in discovery and “has made every effort to obtain evidence through investigative means” without actually providing any evidence in the record. The sparse evidence attached to his response to the motion supports the undisputed facts outlined in Chartwells’ motion. The evidence which Appellant contends exists to prove liability on the part of Chart-wells is not included in the record. Further, a review of Appellant’s response to the motion for summary judgment consistently references the depositions and exhibits attached to Appellant’s response to the motion for summary judgment in broad, general terms as proof that “this imposed an implied duty to inspect the premises,” which is the gravamen of Appellant’s complaint, without proof of any liability on the part of Chartwells.

Appellant asserts that because Chartwells had a food service contract with the University of Houston which contained language requiting Chartwells to maintain an accident prevention and safety education program, provide ongoing instruction in the use of equipment and food handling techniques, and report any fires, unsafe conditions, thefts, and security hazards to the University Food Service Contract Administrator, a duty was created on the part of Chartwells to inspect the premises, discover the allegedly exposed live wire contained within the false ceiling, and report the condition to the University. Appellant also contends that the provision in the contract which requires Chartwells to “reimburse University for maintenance and repair necessitated by the intentional or negligent acts or omissions of Chart-wells, its employees, ... contractors, subcontractors, or personnel ]” creates premises liability on the part of Chartwells by “suggesting there is a duty imposed upon Chartwell.”

It is clear from the record and the documents attached that the only evidence included establishes a relationship between Chartwells and the University of Houston related to the food sendee agreement between the parties. If we agree that the language of the contract requires Chart-wells to reimburse the University of Houston for any damages suffered by the University related to any acts or omissions of a contractor or subcontractor of Chart-wells, we do not agree that such language creates premises liability on the part of Chartwells for the allegedly exposed live wire left in the artificial ceiling which allegedly caused Reid’s injuries.

Appellant does not present any argument which explains how any of the documents attached to the responses are proof in support of the allegations. Broad con-clusory statements are not valid summary judgment evidence. See Heiser v. Eckerd Corp., 983 S.W.2d 313, 316 (Tex.App.-Fort Worth 1998, no pet.).

Turning to the deposition excerpts, we note that the witnesses provide no evidence of negligence on the part of Chart-wells nor do they establish a duty or breach. The evidence taken as a whole merely establishes that Chartwells has a food service contract with the University of Houston, incidental to that contract, they hired a construction company to perform renovations to a facility at the University, the construction company did some work at the site, and Mr. Reid was injured by coming into contact with live wires located in the artificial ceiling of the University of Houston property. Nothing in the record establishes that the contractor did any work on the ceiling in question. We note that the contract between Chart-wells and Cruz is not included in the record nor is any description of the scope of work performed in connection with the project. We have not been presented with any evidence that establishes that Cruz had any contact with the area of the facility where Reid found the live wire much less any evidence that suggests that Chartwells should have inspected the area in question. Reid’s argument and sparse evidence amounts to nothing more than a theory which would, in essence, impose strict liability on Chartwells because Reid was allegedly injured on premises occupied by them. That is not the law in Texas. Reid attempts to distort the testimony of Nick lula, which describes Chartwells as an expert in the food service business, by construing his comments to mean Chart-wells presented itself as an expert on construction projects and is therefore liable for the deficiency of any contractor or subcontractor performing construction work. As stated previously, we do not believe the evidence presented before us is sufficient to establish liability on the part of Cruz but assuming that Cruz does in fact have some liability for the live wire, it would not be imputed to Chartwells because of the food service contract Chart-wells has with the University of Houston. The evidence as presented is nothing more that mere speculation and does not rise to the level of more than a scintilla of evidence.

In sum, Appellant’s response is essentially a pronouncement that the evidence establishes that Chartwells has a duty to inspect the premises to such an extent that it would have discovered the live wire. Interestingly, Reid argues liability on the part of Chartwells in the alternative. He argues that if the live wires were not left exposed by Cruz, then Chartwells should have discovered them during “the initial inspection, performed prior to Cruz beginning the work....” Alternatively, “if the wires were left exposed by Gerald Cruz & Associates, then the final inspection of the work performed by Gerald Cruz & Associates should have revealed the existence of the defect. Finally, Chartwells’ failure to inspect the area, before or after the work was performed by Gerald Cruz & Associates, also forms the basis of Non-Movant’s claim for negligence. The duty to inspect is absolute. Chartwells has failed to negate the existence of the duty.” We disagree.

We note on appeal Appellant asserts that his cause of action as pleaded below was based on a premises defect theory of liability, not a negligent activity theory. He contends that the motions should not have been granted because the motions were attacking his lack of proof of an element of “negligent activity” theory of premises liability but he was pleading a “premises defect” theory of liability. Though we do not believe that his pleadings allege a premises defect theory of liability against Chartwells, under either theory, his response lacks evidence to rebut Chartwells’ motions.

A review of the motion filed by Appellee asserts that “there is no evidence that Compass Group [Chartwells] was negligent in any manner with respect to the work performed by the general contractor.” We believe that this language is sufficient to challenge Appellant’s theory of liability based upon a premises defect as well as under a “negligent activity” theory. As stated previously, the trial court granted the motion without stating the grounds, therefore, we must uphold the judgment if any theory exists in support thereof.

If agreeing that Appellant has argued his case as a premises liability cause of action, we hold that he has failed to present even a scintilla of evidence on any of the required elements. The elements of a premises liability claim are as follows: (1) actual or constructive knowledge of a condition on the premises by the owner or occupier; (2) the condition posed an unreasonable risk of harm; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier’s failure to use such care proximately caused the plaintiffs injury. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983); see Herchman v. DP Solutions, Inc., No. 09-04-176-CV, 2005 WL 994658, at *1 (Tex. App.-Beaumont April 28, 2005, no pet. h.).

In fact, a review of the summary judgment evidence establishes that the evidence provided is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. See Kindred, 650 S.W.2d at 63. There is no evidence in the record that establishes that Chartwells had actual or constructive knowledge of the Uve wires, there is no evidence that the condition posed an unreasonable risk of harm, there is no evidence that the occupier failed to exercise reasonable care, and there is no evidence that the occupier’s failure to use such care was a proximate cause of the Plaintiffs injuries. The only evidence contained in the record establishes that none of the parties know the cause of the existence of the live wires, that the live wires were located within an artificial ceiling, that Chartwells hired a contractor to do certain renovation work, that none of the parties know whether the contractor caused the live wires to remain in the ceiling, that Chartwells generally inspected and accepted the work performed by the contractor, and that Mr. Reid was injured. Appellant did not present any evidence on the type of work performed by the contractor, no witnesses testified about the relationship of the live wires to the previous project or even whether the condition was unreasonably dangerous. In contrast, there is evidence in the record that Chartwells’ responsibilities for the renovation were limited to hiring a contractor to perform certain remodeling work on a facility owned, inspected, and maintained by the University of Houston. A review of the record as a whole supports the trial court’s ruling that summary judgment was proper. For the reasons stated, we affirm the trial court’s ruling and overrule Appellant’s Issue No. Two. Because this issue is dispositive of this appeal, we do not reach Issue No. One.

Having overruled Appellant’s Issue No. Two, and further finding that we need not address Issue No. One, we affirm the judgment of the trial court.

      . Appellant filed an original and amended response to the motion. The responses are very similar and the exhibits to each are identical. The amended response merely expands the arguments presented in the original response but does not present additional proof.

      . We note that the complete copies of the depositions referenced are attached to Plaintiffs response to the motions for summary judgment but only excerpts from the depositions are attached to Plaintiff’s amended response.

      . Appellant argues that because he requested a copy of the contract and was not provided with a copy during discovery that the food service agreement between the University of Houston and Chartwells governs this matter and creates liability on the part of Chartwells.


author: Opinion by Justice ROSS.

text:
    OLD REPUBLIC SURETY COMPANY, Appellant, v. BONHAM STATE BANK, Appellee.
    No. 06-04-00105-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 13, 2005.
    Decided Aug. 19, 2005.

      Aaron Z. Tobin, G. Dennis Sullivan, Sullivan & Holston, Dallas, for appellant.
    Graham C. Winegeart, William Riley Nix Jr, Nix & Winegeart, PC, Sherman, Millard O. Anderson, Jr., McKinney, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Old Republic Surety Company appeals the granting of Bonham State Bank’s motion for summary judgment concerning its claim for damages under a motor vehicle dealer bond. The Bank alleged that Lee Cadenhead, d/b/a Victory Auto Sales, had breached a statutory bond condition. Because Cadenhead had filed for bankruptcy, the Bank obtained an agreed lift of the bankruptcy stay and then obtained a default judgment that Victory had violated a statutory bond condition. The Bank presented Old Republic with its judgment as a claim on the bond. When Old Republic denied the claim, the Bank sued for damages under the bond. The trial court granted the Bank’s motion for summary judgment. For reasons stated below, we reverse the decision of the trial court and remand the case for further proceedings.

Old Republic raises four issues on appeal. It argues that the trial court erred (1) by granting summary judgment when a genuine issue of material fact existed concerning its liability under the bond; (2) in overruling its objections to the Bank’s summary judgment evidence because the affidavit of the Bank’s president was con-clusory, hearsay, and not the best evidence of the alleged transactions; (3) by granting the summary judgment, because a genuine issue of material fact existed concerning whether the agreed judgment altered the terms of the surety bond; and (4) in awarding attorney’s fees, causing the total award to exceed the face value of the surety bond.

A licensed car dealer must provide the Texas Department of Transportation with a $25,000.00 surety bond or similar security. Tex. Transp. Code Ann. § 503.033(a) (Vernon 1999). Section 503.033 provides:

The surety bond must be:
(1) in a form approved by the attorney general;
(2) conditioned on:
(A) the payment by the applicant of all valid bank drafts, including checks, drawn by the applicant to buy motor vehicles; and
(B) the transfer by the applicant of good title to each motor vehicle the applicant offers for sale.

Tex. Teansp. Code Ann. § 503.033(b) (Vernon 1999). Those statutory conditions are incorporated into the bond at issue in this appeal. Recovery against the surety bond is authorized if the claimant obtains a judgment against the dealer assessing damages based on an act or omission on which the bond is conditioned. Tex. TRAnsp. Code Ann. § 503.033(d) (Vernon 1999).

Before we can address the issues raised by Old Republic, we must first determine the effect of the default judgment in the lawsuit against the principal. The default judgment is conclusive proof of liability unless there is evidence of fraud, collusion, or that the judgment altered the terms of the bond. We must therefore examine whether there is evidence of fraud or collusion, or whether the default judgment altered the terms of the bond. Because we find there is a fact issue concerning whether the default judgment altered the terms of the bond, the trial court erred in granting the Bank’s motion for summary judgment.

Factual Background

The Bank provided Cadenhead with credit to purchase automobiles for Victory’s inventory, and in that connection held a security interest on the automobile inventory. On May 13, 2002, Cadenhead signed a promissory note for $100,000.00 plus variable interest, which was secured by a certificate of deposit and Victory’s inventory. When Cadenhead defaulted on the note, the Bank began liquidating its collateral, including the automobile inventory.

On or about February 19, 2003, Caden-head filed a petition for relief under Chapter 13 of the United States Bankruptcy Code. The Bank requested the bankruptcy court lift the automatic stay under 11 U.S.C. § 362 so that it could continue liquidation of its security interest and pursue a bond claim against Old Republic. On June 13, 2003, the bankruptcy court granted an agreed order to lift the stay. On August 15, 2003, the Bank obtained a default judgment against Cadenhead. Following the default judgment, the Bank requested Old Republic pay its claim under the bond, and Old Republic denied liability. The trial court granted the Bank’s motion for summary judgment.

Standard of Review

To prevail on a traditional motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e). The movant has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id.; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex.1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex.App.-Texarkana 1989, no writ). Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant to present evidence raising a fact issue that would preclude summary judgment. Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665, 669 (Tex.App.-Texarkana 1996, writ denied). When reviewing a summary judgment, we take as true all evidence favorable to the nonmov-ant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999).

The Evidentiary Value of the Judgment

Old Republic argues that the default judgment is only prima facie evidence of liability and that the Bank is still required to prove the principal violated a condition of the bond despite the judgment against the principal.

Whether a default judgment is conclusive of the surety’s liability or only prima facie evidence depends on what type of bond is at issue. A general undertaking bond only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the underlying suit, and the surety will be permitted to assert any valid defense which the principal could have asserted. Howze v. Surety Corp. of Am., 584 S.W.2d 263, 265 (Tex.1979). However, if the bond is a judgment bond, the Texas Supreme Court has held that a surety is bound by the default judgment against the principal even if the surety did not have notice of the prior suit against the principal absent proof of collusion or fraud. “A judgment bond is one in which the surety agrees to be liable for a judgment based on a specific statutory violation covered by the bond.” Lawyers Sur. Corp. v. Riverbend Bank, N.A, 966 S.W.2d 182, 188 (Tex.App.-Fort Worth 1998, no pet.); see Howze, 584 S.W.2d at 265-66. A surety is liable under a motor vehicle bond if a judgment is obtained against the principal based on a condition of the bond. A motor vehicle bond under Section 503.033 is clearly a judgment bond. See Riverbend Bank, N.A, 966 S.W.2d at 188.

We note that in Arcadia Financial and MRD Investments the Fourteenth District Court of Appeals held that a default judgment against a principal concerning a motor vehicle bond is only prima facie evidence of liability and that the surety is entitled to make any valid defense the principal could have asserted. Gramercy Ins. Co. v. MRD Invs., Inc., 47 S.W.3d 721, 726 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); Gramercy Ins. Co. v. Arcadia Fin. Ltd., 32 S.W.3d 402, 406-07 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Because the bond at issue is a judgment bond, we are constrained to follow the holding of the Texas Supreme Court. Absent evidence of fraud or collusion, the surety is bound by the underlying judgment and is prohibited from asserting any defenses. Riverbend Bank, N.A., 966 S.W.2d at 188; see Howze, 584 S.W.2d at 266; Old Republic Sur. Co. v. Reyes, No. 05-01-01881-CV, 2002 WL 1772976, at *2 2002 Tex.App. LEXIS 5649, at *6-7 (Tex. App.-Dallas Aug. 2, 2002, pet. denied) (not designated for publication).

Section 503.003(d), however, requires the judgment to be based on a violation of a condition of the bond. In Riverbend, the Fort Worth Court of Appeals distinguished Howze by holding that a surety can raise the issue of whether the underlying judgment altered the terms of a bond. Riverbend Bank, N.A., 966 S.W.2d at 188 (holding that the agreed judgment in that case modified the terms of the bond); see Reyes, 2002 WL 1772976, at **-, 2002 Tex.App. LEXIS 5649, at *6-7. Although a surety cannot relitigate the underlying lawsuit or assert any defenses that might have defeated the principal’s liability, we agree with the Fort Worth Court of Appeals that a surety can raise the issue of whether the underlying judgment altered the terms of the bond. Such a holding is consistent with Howze because the underlying suit is not being relitigated. If the underlying suit found liability based on a different theory than the conditions of the act, it is not a judgment which is based on an act or omission on which the bond is conditioned. See Riverbend Bank, N.A., 966 S.W.2d at 188; see also Tex. Transp. Code Ann. § 503.033(d).

Therefore, unless there is evidence of fraud or collusion, the surety is bound by the underlying judgment. However, if the judgment altered the terms of the agreement, the judgment is not a judgment creating liability based on the bond and it is not conclusive of liability.

There are Genuine Issues of Material Fact Concerning Whether the Default Judgment Altered the Terms of the Bond

In its first and third points of error, Old Republic argues that there are genuine issues of material fact precluding summary judgment. According to Old Republic, the default judgment altered the terms of the bond and therefore it is not bound by the default judgment. In addition, Old Republic argues there are genuine issues of material fact concerning whether the Bank has proved facts sufficient to create liability under the bond. Old Republic argues that the Bank has proven that Victory failed to repay its loan obligations, which does not create liability under a motor vehicle bond.

As the Bank correctly asserts, recovery on a motor vehicle bond is not limited to consumers. See Arcadia Fin. Ltd,., 32 S.W.3d at 406-07. Old Republic argues there is no evidence the Bank ever purchased a motor vehicle from Caden-head or ever sold a motor vehicle to Ca-denhead. The Bank responds that the statute does not limit its application to a direct consumer or purchaser of a motor vehicle. Section 503.033 allows “any ‘person’ to recover against a surety bond if that person obtains a judgment against a licensed motor vehicle dealer ‘based on an act or omission on which the bond is conditioned.’ ” Gramercy Ins. Co. v. Auction Fin. Program, Inc., 52 S.W.3d 360, 367 (Tex.App.-Dallas 2001, pet. denied); Arcadia Fin. Ltd., 32 S.W.3d at 406-07. The main question, though, is whether the Bank obtained a judgment based on an act or omission on which the bond is conditioned. While the statute is not limited to consumers, the plaintiff must have sustained his or her injuries in connection with the sale or purchase of a motor vehicle.

One of the two conditions giving rise to liability under the bond is the failure to honor a bank draft for the purchase of an automobile. The failure to repay a loan does not involve the sale of a motor vehicle and is, thus, not a transaction that is subject to liability under the bond. See MRD Invs., Inc., 47 S.W.3d at 726; Riverbend Bank, N.A., 966 S.W.2d at 186-87. The bank draft must have been issued for the purchase of a vehicle. In this case, the Bank provided no summary judgment evidence that Victory failed to honor a bank draft. The facts of this case are nearly identical to Riverbend and MRD. In Riverbend, the Fort Worth Court of Appeals held that the surety company was not liable on the motor vehicle bond when the car dealer defaulted on his loan secured by the car dealer’s inventory. Riverbend Bank, N.A., 966 S.W.2d at 188. The court stated:

A “note” and a “draft” are not interchangeable legal equivalents; they are two different types of negotiable instruments. A note is a written promise to pay money signed by the person undertaking that promise. See Tex. Bus. & Com.Cobe Ann. §§ 3.103(a)(9), 3.104(a), (e). A draft is a written order to pay money signed by the person giving the instruction. See id. §§ 3.103(a)(6), 3.104(e).

Id. at 187. The court interpreted the term “ ‘payment of valid bank drafts’ ... to mean bank drafts for which a car dealer has sufficient funds at its disposal so that the drawee bank will honor them.” Id. at 186. If the checks are not tendered to purchase a motor vehicle but rather to repay a loan, the surety is not hable. Auction Fin. Program, Inc., 52 S.W.3d at 364; MRD Invs., Inc., 47 S.W.3d at 727. The second condition of liability is the failure to transfer good title in connection with the sale of an automobile. Tex. Transp. Code Ann. § 503.033(b); Arcadia Fin. Ltd., 32 S.W.3d at 407.

The summary judgment evidence filed by the parties consists of the following: the affidavit of Allen Sanderson, president of Bonham State Bank; the affidavit of Lisa Frasier, a “Claims Supervisor/Adjuster” for Old Republic; a transcript of the hearing concerning the default judgment; the agreed motion to lift the bankruptcy stay; responses to the Bank’s requests for admissions; and the default judgment. When viewed in a light most favorable to the nonmovant, a fact issue exists concerning whether the default judgment altered the terms of the bond.

The only evidence that Victory violated the conditions of the bond is the default judgment and legal conclusions in the affidavit of Sanderson. The default judgment does provide that Victory failed to pay all valid bank drafts and failed to transfer good title for all vehicles it sold. The default judgment states:

[A]ll averments contained in the Plaintiffs Original Petition shall be deemed admitted, including that there exists a valid, fully-proved promissory note under which Defendant is indebted to Plaintiff, that Defendant is in default of the terms of the Note due to his failure to make payments when due, to pay all valid bank drafts, and to transfer good title to each motor vehicle that Defendant sold, and that the amounts requested are due, owing, and unpaid.

We note, however, that the default judgment does not state whether the failure to pay all bank drafts was in connection with the purchase of an automobile. It does provide, however, that Victory failed to transfer good title for each motor vehicle sold. Therefore, the face of the default judgment indicates that one of the two conditions of the bond has been violated.

The Bank and Old Republic introduced conflicting affidavits. Sander-son stated in his summary judgment affidavit in pertinent part as follows:

I know and can testify that on May 13, 2002, Victory executed and delivered to the bank a promissory note in the original principal amount of $100,000.00 (“the note”) secured by the pledge of Victory’s automobile inventory. In connection with this credit arrangement, Victory was obligated to pay all valid bank drafts and transfer good title to motor vehicles that it sold. Victory failed to perform these obligations and failed to pay amounts due on the note. As a result, the bank was damaged in the amount of $83,830.12....

In response, Old Republic filed an affidavit by Frasier. Frasier’s affidavit states in pertinent part:

Pursuant to state law, the Bond is conditioned on the payment of all valid bank drafts for the purchase of a motor vehicle and the transfer of good title for the sale of a motor vehicle. Plaintiff, Bon-ham State Bank made a claim on the bond that ORSC denied because the claim was not covered by a condition of the Bond.

Because the affidavits of Frasier and Sanderson consist mainly of legal conclusions, neither serves to resolve whether Victory violated either of the statutory bond conditions.

There is more than a scintilla of evidence that the underlying judgment may have altered the terms of the bond. The motion to lift the stay provides that Victory sold vehicles out of trust and in bad faith. As discussed above, the failure to repay a loan is not sufficient to violate either of the conditions of the bond. The motion to lift the bankruptcy stay provides more than a scintilla of evidence that the default judgment may have altered the terms of the bond. The motion provides as follows:

As above referenced, Movant has a hen on Debtors’ [sic] new and used car inventory. It has come to Movant’s attention that Debtor has sold many of the cars upon which Movant has a lien to third parties, without remitting the proceeds of sale to Movant. This constitutes bad faith, and accordingly cause exists for lifting the automatic stay.

This is more than a scintilla of evidence that the Bank’s damages resulted from the failure to repay a loan, rather than a failure to pay all valid bank drafts or transfer good title in connection with the sale or purchase of an automobile. Further, the default judgment provides that the Bank sustained damages in the amount of $83,830.12. This amount is identical to the amount outstanding on the loan. In the Bank’s original petition in the suit against Victory, the Bank alleged that the amount of the unpaid balance on Victory’s note was $83,830.12. While this evidence is not much more than a scintilla, it does create a fact issue as to whether the default judgment altered the terms of the bond.

The Bank relies on Auction Finance Program and Arcadia Financial in support of its argument. The current case is distinguishable because the Bank did not have a lien against any specific car or cars, but rather against Victory’s inventory in general. Further, the Bank has faded to show that Victory failed to pay valid bank drafts in connection with the purchase of an automobile. The Bank alleges that Victory transferred title to vehicles secured by a lien and failed to forward the proceeds to the Bank. Arcadia is distinguishable because the bank in that case had obtained an assignment from the purchaser of the automobile in return for a release on the lien. Arcadia Fin. Ltd., 32 S.W.3d at 406-07. This case is clearly distinguishable from Auction Finance Program because in that case evidence was introduced that the motor vehicle dealer failed to pay valid bank drafts issued to purchase motor vehicles. Auction Fin. Program, Inc., 52 S.W.3d at 369. In this case, there is no evidence that Victory failed to pay valid bank drafts other than the conclusory statements of Sanderson and the default judgment, and neither piece of evidence provides that these checks were for the purchase of an automobile. There is no evidence that the Bank has obtained an assignment in this case, and there is a fact issue concerning whether its damages resulted from the failure to transfer good title in connection with the sale of an automobile or simply resulted from the failure to repay a loan.

Old Republic argues there is also evidence of fraud or collusion. Old Republic contends that Victory agreed to the default judgment and therefore colluded with the Bank. In support of its argument, Old Republic filed the transcript of the default judgment hearing. According to the transcript, the Bank’s attorney informed the court in an unsworn statement that Victory had agreed to the entry of the default judgment. The transcript provides as follows: “This debtor has been in bankruptcy, and as part of the termination of the automatic stay, they agreed to the entry of this judgment.” However, the transcript is not proper summary judgment evidence. Therefore, the only evidence in the record that Victory agreed to the entry of a default judgment is the agreed motion to lift the automatic bankruptcy stay. Further, an agreement to a judgment does not necessarily indicate that the parties colluded, absent additional evidence. There is less than a scintilla of evidence of fraud or collusion.

After taking as true all evidence favorable to the nonmovant and indulging every reasonable inference or doubt in the non-movant’s favor, the Bank has failed to show that no genuine issues of material fact exist concerning whether the underlying judgment altered the terms of the bond. Thus, the trial court erred in granting the Bank’s motion for summary judgment. Because this issue is dispositive, it is not necessary to answer the remaining issues raised by Old Republic.

Conclusion

Unless there is evidence of fraud, collusion, or that the default judgment altered the terms of the bond, the default judgment against Victory is conclusive of the liability of Old Republic. A genuine issue of material fact exists, however, concerning whether the default judgment altered the terms of the bond. Therefore, the trial court erred in granting the Bank’s motion for summary judgment.

We reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

      . Howze, 584 S.W.2d at 265-66. Howze concerned a claim on a bond issued under the Texas Mobile Homes Standards Act. The Texas Supreme Court rejected that the bond was a general undertaking bond because "[t]he terms of this Act (and subsequently of the bond) condition the liability of a mobile home surety upon the establishment of liability against the principal; i.e., upon a judgment.” Id. at 266.

      . According to Old Republic, Arcadia is consistent with Howze. At oral argument, Old Republic noted that Arcadia cited Browne v. French, 3 Tex.Civ.App. 445, 22 S.W. 581, 583-84 (Tex.Civ.App. 1893, no writ), for the proposition that the surety could assert any valid defense and that Browne was also cited by the Texas Supreme Court in Howze. See Arcadia Fin. Ltd., 32 S.W.3d at 406-07. We disagree that Arcadia is consistent with Howze. Howze noted the court of appeals’ judgment was "based upon the distinction between 'particular judgment bonds' and 'general undertaking bonds’ as delineated in United States Fidelity <fe Guaranty Co. v. Paulk, 15 S.W.2d 100 (Tex.Civ.App.Texarkana 1929, no writ), and Browne v. French, 3 Tex.Civ.App. 445, 22 S.W. 581 (1893, no writ).” Howze, 584 S.W.2d at 265. First, Browne concerned a general undertaking bond. See Browne, 22 S.W. at 581. Second, Browne announced the identical rule for judgment bonds as the Texas Supreme Court relied on in Howze — a judgment is conclusive of the surety’s liability. The Austin Court of Civil Appeals stated in Browne:

      The general rule upon this subject may be stated that, when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment was obtained; but in an undertaking, general in character, such as the bond sued upon in this case, the judgment obtained against the principal therein only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained. In such cases the judgment is not conclusive, and does not operate as an estoppel against the surety, and he will, when sought to be made liable therefor by the judgment creditors, be permitted to interpose any valid defense that would defeat the plaintiff’s case existing at the time the judgment was obtained.

        Browne, 22 S.W. at 582-84 (emphasis added); see United States Fid. & Guar. Co. v. Paulk, 15 S.W.2d 100, 103-05 (Tex.Civ.App.-Texarkana 1929, no writ).

      . "A conclusoiy statement is one that does not provide the underlying facts to support the conclusion.” Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.). We note that a conclusoiy statement can be either a legal conclusion or a factual conclusion. Although logical conclusions based on stated underlying facts are permissible, legal conclusions are improper. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Legal conclusions reduce to a legal issue a matter that should be resolved by relying on facts. Id. "Statements of legal conclusions amount to little more than the witness choosing sides on the outcome of the case.” Id. An affidavit must allege specific facts of a nature that can be effectively countered by opposing evidence. Chhim v. Univ. of Houston, 76 S.W.3d 210, 216 (Tex.App.-Texarkana 2002, pet. denied). "[A]ffidavits containing conclusoiy statements unsupported by facts are not competent summary judgment proof.” Skelton v. Comm'n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

      . The transcript consists entirely of unsworn statements and contains no certification. Court records, including trial testimony from other cases, are acceptable summary judgment evidence. Mowbray v. Avery, 76 S.W.3d 663, 689 (Tex.App.-Corpus Christi 2002, pet. denied); Murillo v. Valley Coca-Cola Bottling Co., 895 S.W.2d 758, 762 (Tex.App.-Corpus Christi 1995, no writ). However, the testimony must set forth facts that would be admissible at trial and must be certified or attested under oath as authentic. Murillo, 895 S.W.2d at 762. “Generally, a court may take judicial notice of records of its own or another court's records (such as in the habeas corpus case) when they are provided by the proponent, however, this does not relieve the proponent from the responsibility of providing them to the court in a form acceptable for summary judgment proceedings, i.e. either sworn to or certified.” Mowbray, 76 S.W.3d at 689. We note, though, that the transcript at issue is not trial testimony, but rather only unsworn statements by the Bank’s attorney. The general rule is that an attorney's statements must be under oath to constitute evidence, but such error may be waived by the failure to object when the opponent knew or should have known an objection was required. Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 338 (Tex.App.-Texarkana 2004, pet. denied). In this case, however, there was not an opponent at the default judgment hearing who could have objected and there is no indication the Bank’s attorney intended for his statement to be evidence. Although the Bank failed to object when Old Republic introduced the transcript, the defect goes to the substance of the evidence rather than the form. Therefore, we conclude that the uncertified trial transcript of unsworn statements is not admissible summary judgment evidence. We note that the default judgment and the agreed motion to lift the automatic stay were not certified either, but the lack of certification goes to the form of these documents rather than the substance, and an objection was required at the trial level. See Mowbray, 76 S.W.3d at 689.