Essex Crane Rental Corporation v. Estevan Coal Construction ( 1992 )

Essex Crane Rental v. Estevan

IN THE

TENTH COURT OF APPEALS

No. 10-92-118-CV

     ESSEX CRANE RENTAL CORPORATION,

                                                                                              Appellant

     v.

     ESTEVAN COAL CONSTRUCTION,

                                                                                              Appellee

From the 23rd District Court

Brazoria County, Texas

Trial Court # 91CO415

MEMORANDUM OPINION

      Essex Crane Rental Corporation, a Texas corporation, sued against Estevan Coal Corporation, a Canadian corporation, for breach of an oral contract. The court denied Estevan's special appearance but rendered summary judgment in its favor. Essex appeals the summary judgment, and Estevan has filed a cross-point alleging that the court erred in denying its special appearance. We summarily affirm.

      Estevan moved for a summary judgment on two grounds: that no contract was formed between the parties, and that if one had been formed, Essex had caused an anticipatory breach. Following Estevan's motion for summary judgment, Essex filed a response asserting that the parties had entered into oral and written contracts; however, Essex never addressed Estevan's allegation of anticipatory breach. The court granted summary judgment without stating any grounds.

      If a party opposing a motion for summary judgment does not assign error to every ground raised in the proponent's motion, and if the summary judgment is granted, then it will be affirmed on that portion of the motion to which the appellant failed to assign error. Sullivan v. University Interscholastic League, 616 S.W.2d 170, 173 (Tex. 1981); See Langston v. Eagle Pub. Co., 719 S.W.2d 612, 625-26 (Tex. Civ. App.—Waco, 1986, writ ref'd n.r.e.). Since Essex failed to assign error on the issue of anticipatory breach we summarily affirm the judgment.

      We do not reach the cross-point.

                                                                                     PER CURIAM

Before Justice Cummings, and

          Justice Vance

          (Chief Justice Thomas not participating)

Affirmed

Opinion delivered and filed December 9, 1992

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