IN THE

TENTH COURT OF APPEALS

No. 10-03-00337-CV

Randall C. Boyd,

                                                                      Appellant

 v.

Koons, Fuller, Vanden Eykel & Robertson, P.C.,

                                                                      Appellee

From the 116th District Court

Dallas County, Texas

Trial Court # 02-09480-F

          It only takes some evidence in support of the non-movant’s elements to defeat a motion for summary judgment.  The cause for the delay in the rendition of the divorce decree is the central issue in this appeal.  Boyd’s evidence is that if he had been properly advised by Koons, Fuller the divorce decree would have been rendered and entered more quickly, thus avoiding the community property character from attaching to an $8,000,000 bonus he received.  Boyd’s expert explained that the delay was because Koons, Fuller was negligent in the advice it gave Boyd, thus leaving the mediated settlement agreement open to attack.

          It appears there is a fact issue regarding whether the mediated settlement agreement was open to a viable attack by Boyd’s wife, whether that viable attack was left open by Koons, Fuller’s negligent advice, and whether that viable attack, when capitalized upon by Boyd’s wife to set aside the mediated settlement agreement, resulted in the delay in obtaining a judgment. 

          This kind of factual dispute is exactly what juries are for—and why this case should not be resolved by a summary proceeding.  The trial court erred when it granted the motion for summary judgment.  Boyd has been denied the opportunity to prove his case before a jury.  I dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed January 5, 2005