Opinion
No. 05-02-02016-CV.
Opinion issued November 19, 2003.
Appeal from the 68th Judicial District, Dallas County, Texas, Trial Court Cause No. 02-04471-C.
AFFIRMED.
Before Justices JAMES, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Frank F. Splann appeals the summary judgment granted in favor of Caroline Swann Splann. Frank contends the trial court's grant of summary judgment based on the conclusion there was consideration for Frank's promise to pay support to Caroline was error. The facts are well known to both parties; thus we do not recite them here in detail. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. We affirm the trial court's judgment.
Caroline brought a breach of contract action against Frank regarding their 1986 divorce agreement. The agreement contained a support obligation under which Frank agreed to pay Caroline $3500 per month until Caroline's death or remarriage. Frank ceased making payments October 1, 2001. In the case below, Caroline moved for summary judgment and pleaded the following in support of her motion: (1) Frank waived "all contractual defenses to any actions to enforce" the agreement providing for alimony support; (2) ample consideration could be found by reading the agreement in its entirety; and (3) the doctrine of ratification prevented Frank from avoiding his obligation. The court granted Caroline's summary judgment motion without specifying the basis for its ruling.
When the trial court does not specify the basis for its ruling, it is an appellant's burden on appeal to show that each of the independent grounds asserted in support of summary judgment is insufficient to support summary judgment. See Smith v. Tilton, 3 S.W.3d 77, 83 (Tex.App.-Dallas 1999, no pet.); Williams v. Crum Forster Commercial Ins., 915 S.W.2d 39, 43 (Tex.App.-Dallas 1995), rev'd on other grounds, 955 S.W.2d 267 (Tex. 1997). If he fails to do so, we must affirm if there is any meritorious ground in the motion upon which the trial court could have based summary judgment. See Smith, 3 S.W.3d at 83.
Frank requested, and the court filed, findings of fact and conclusions of law. However, findings of fact and conclusions of law are improper in summary judgment. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997). If summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and the response. Id. The trial court should not make, and the appellate court cannot consider, such findings and conclusions in connection with a summary judgment. We, therefore, do not consider the findings of fact and conclusions of law filed by the trial court.
Frank seems to presume the trial court granted summary judgment on the basis of consideration and offers no discussion of ratification. In addressing the waiver of contractual defenses argument, Frank merely states the waiver provision is "not applicable . . . unless it was not approved by the Court" and if the waiver provision did apply, it "does not relieve [Caroline] of proving consideration." Frank does not provide any authority for his assertions; therefore, he waives his argument concerning waiver of defenses. See Tex.R.App.P. 38.1(h).
Without providing argument that every ground is erroneous, the challenge to summary judgment cannot prevail. See Smith, 3 S.W.3d at 83. Because Frank failed to attack the ratification claim, and because he waived his waiver of defenses argument, we resolve his issues against him, and we affirm the trial court's judgment.