,_ v - Fifth Court of Appeals

transfer."). CR. 192. The Judgment also awarded exemplary damages against
Appellant on the "actual fraud" claim and attorney's fees. CR. 192.
STANDARD OF REVIEW
A traditional motion for summary judgment is reviewed on appeal de novo.
Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).
A party moving for summary judgment has the burden of establishing that
no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); Nixon v. Mr.
Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether
disputed material fact issues preclude summary judgment, evidence favorable to
the non-movant is taken as true, every reasonable inference from the evidence is
indulged in favor of the non-movant, and any doubt is resolved in its favor. Nixon,
690 S.W.2d at 548-49.
When the party with the burden of proof seeks summary judgment, that
party must conclusively prove its entitlement to prevail on each element of its
cause of action as a matter of law. Ortega-Carter v. American International
Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.-Dallas 1992, writ denied).
SUMMARY OF THE ARGUMENT
The Judgment is erroneous, because it awards actual and exemplary
damages for fraud, although fraud was not pled as a basis of recovery in
Appellee's Motion for Summary Judgment.
APPELLANT'S BRIEF
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