Opinion
No. 05-03-00761-CV.
Opinion issued April 19, 2004.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-00585-02.
Reversed and Remanded.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
MEMORANDUM OPINION
Retail Motorcycle Ventures, Inc. d/b/a BMW Triumph of North Dallas and Carl B. Diehl appeal the trial court's judgment granting summary judgment in favor of Don Rapport Associates, Inc. In five issues, appellants contend the trial judge erred in granting summary judgment because (i) Rapport failed to present competent summary judgment evidence that the parties entered into an enforceable agreement; (ii) Rapport was not entitled to a commission under the express terms of the agreement; (iii) the offer to purchase Rapport procured was not a contract, but rather a "nonbinding letter of intent;" (iv) Rapport failed to present evidence that appellants breached the contract; and (v) there is no evidence supporting Rapport's claim for attorney's fees. We reverse the trial court's summary judgment and remand for further proceedings.
In their second issue, appellants contend the trial judge erred in granting Rapport summary judgment because Rapport failed to present competent summary judgment evidence that an enforceable agreement existed. Under this issue, appellants argue Rapport failed to authenticate the eight exhibits attached to its motion for summary judgment and, therefore, there is no evidence to support the trial court's judgment. "A complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal." Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.-Dallas 2002, no pet.). Although Rapport attached the exhibits to its motion for summary judgment, there is no authentication of any of the exhibits. Because the exhibits are not properly authenticated, there is no competent summary judgment evidence to support Rapport's motion or the summary judgment. We sustain appellants' second issue on appeal.
We reverse the trial court's summary judgment and remand this cause for further proceedings.