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O P I N I O N

=20 Pat K. Speck appeals two no-evidence summary judgments entered in = favor of=20 First Evangelical Lutheran Church (the Church) and Dry Bones = Coffee House,=20 Inc. (Dry Bones). In one issue, Speck contends the trial = court erred=20 in granting the summary judgments because he produced evidence = sufficient=20 to raise a genuine issue of material fact with regard to his = quantum=20 meruit, sworn account, and breach of contract claims. We = conclude=20 that the = trial court=20 (1) properly granted summary judgment on Speck=92s quantum meruit = claims=20 because Speck failed to produce evidence sufficient to raise a = genuine=20 issue of material fact on these claims, and (2) erred in granting = summary=20 judgment on Speck=92s sworn account and breach of contract claims = because=20 the Church and Dry Bones did not move for summary judgment on = these=20 claims. We therefore affirm in part, and reverse and remand = in=20 part.

Background

=20 Speck alleges that he performed repair and remodeling services for = the=20 Church and Dry Bones. As a member of the Church, Speck = charged=20 nothing for his services=97he seeks reimbursement only for his = out-of-pocket=20 expenses. Speck=92s original petition alleges that the = Church and Dry=20 Bones are liable for his expenses under a theory of quantum = meruit, or in=20 the alternative a sworn account. The Church and Dry Bones = filed=20 verified denials.

=20 On April 4 and 7, 2006, the Church and Dry Bones moved for summary = judgment, asserting that Speck had produced no evidence sufficient = to=20 raise a fact issue as to his quantum meruit claims. The=20 trial court set the summary judgment motions for a hearing on May = 2,=20 2006. On April 17, Speck amended his petition and added a = claim for=20 breach of contract. Speck responded to the Church=92s and = Dry Bones=92=20 summary judgment motions on April 24. On April 26, Speck = filed=20 additional affidavits supporting his summary judgment = responses. The=20 Church and Dry Bones objected to these affidavits, asserting that = the=20 affidavits were not timely because Speck filed them less than = seven days=20 before the hearing on the motions for summary judgment. On = May 2,=20 the trial court granted the Church=92s and Dry Bones=92 summary = judgments and=20 disposed of all of Speck=92s claims.

No-Evidence Summary=20 Judgment

A. Standard=20 of Review

In a = Rule 166a(i)=20 no-evidence summary judgment, the movant represents that no = evidence=20 exists as to one or more essential elements of the non-movant=92s = claims,=20 upon which the non-movant would have the burden of proof at = trial. =20 Tex. R. Civ. P.=20 166a(i). = The=20 non-movant then must present evidence raising a genuine issue of = material=20 fact on the challenged elements. Id. A = no-evidence=20 summary judgment is essentially a pre-trial directed = verdict. Bendigo=20 v. City of Houston, 178 = S.W.3d 112,=20 113=9614 (Tex. = App.=97Houston=20 [1st Dist.] 2005, no pet.); Jackson v. = Fiesta=20 Mart, 979 S.W.2d 68, 70=9671 (Tex. App.=97Austin 1998, no = pet.). On=20 review, we ascertain whether the non-movant produced more than a = scintilla=20 of probative evidence to raise a genuine issue of material = fact. =20 Jackson, 979 S.W.2d at 70=9671. More than a scintilla = of=20 evidence exists if the evidence =93rises to a level that would = enable=20 reasonable and fair-minded people to differ in their = conclusions.=94 =20 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. = 2003)=20 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d = 706, 711=20 (Tex. 1997)). If the evidence does no more than create a = mere=20 surmise or suspicion of fact, less than a scintilla of evidence=20 exists. Transp. Ins. Co. v. Faircloth, 898 S.W.2d = 269, 282=20 (Tex. 1995); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, = 317 (Tex.=20 App.=97Houston [1st Dist.] 1999, no pet.). To defeat a = no-evidence=20 motion for summary judgment, the respondent is not required to = marshal its=20 proof; its response need only point out evidence that raises a = fact issue=20 on the challenged elements. Tex. R. Civ. P. 166a(i) = cmt.

B. Quantum=20 Meruit

=20 Speck contends that he produced sufficient evidence to raise a = genuine=20 issue of material fact with regard to the challenged elements of = his=20 quantum meruit claims. The Church and Dry Bones respond that = Speck=20 did not produce any competent summary judgment evidence in support = of his=20 claims.

=93Quantum=20 meruit is an equitable remedy which does not arise out of a = contract, but=20 is independent of it.=94 Vortt=20 Exploration Co. v. Chevron U.S.A., Inc.,=20 787 S.W.2d 942, 944 = (Tex. = 1990). =20 Generally, a=20 party may recover under quantum meruit only if no express contract = covering the services or materials furnished exists. = Id.;=20 Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988). = Quantum=20 meruit =93is based upon the promise implied by law to pay for = beneficial=20 services rendered and knowingly accepted.=94 Campbell v. = Nw. Nat=92l=20 Life Ins. Co., 573 S.W.2d 496, 498 (Tex. 1978). A party = can=20 recover in quantum meruit when non-payment for the services = rendered would=20 result in an unjust enrichment to the party benefited by the = work. =20 Vortt=20 Exploration Co., 787 = S.W.2d at=20 944. = To=20 recover under quantum meruit a claimant must prove = that:=20 (1) = valuable=20 services were rendered or materials furnished; = (2) for = the=20 person sought to be charged; (3) = which=20 services and materials were accepted by the person sought to be = charged,=20 used and enjoyed by him; (4) = under such=20 circumstances as reasonably notified the person sought to be = charged that=20 the plaintiff in performing such services was expecting to be paid = by the=20 person sought to be charged. Id.; Bashara v. = Baptist Mem=92l=20 Hosp. Sys., 685 S.W.2d 307, 310 (Tex. = 1985).

1. Speck=92s=20 Affidavits

=20 The Church and Dry Bones contend that the affidavits Speck filed = on April=20 26 in support of his summary judgment responses do not constitute = summary=20 judgment evidence because the affidavits were not timely = filed.

=20 Texas Rule of Civil Procedure 166a(c) provides: =20

The motion for summary judgment shall = state the=20 specific grounds therefor. Except on leave of court, with = notice to=20 opposing counsel, the motion and any supporting affidavits shall = be filed=20 and served at least twenty-one days before the time specified for=20 hearing. Except on leave of court, the adverse party, not = later than=20 seven days prior to the day of hearing may file and serve opposing = affidavits or other written response.

Tex.=20 R. Civ. P.=20 166a(c). =93Summary judgment evidence may be filed late, but = only with=20 leave of court.=94 Benchmark Bank v. Crowder, 919 = S.W.2d 657,=20 663 (Tex. 1996). Where nothing appears in the record to = indicate=20 that the trial court granted leave to file the summary judgment = response=20 late, we presume that the trial court did not consider the = response. =20 Id.; INA of Tex. v. Bryant, 686 S.W.2d 614, 615 = (Tex.=20 1985).

=20 Here, Speck filed that affidavits on April 26 and the summary = judgment=20 hearing was set for May 2. The affidavits were untimely = because=20 Speck filed them six days before the summary judgment hearing = instead of=20 seven, as required by Rule 166a(c). See Tex. R. Civ. P. 4 = (=93In computing=20 any period of time prescribed or allowed by these rules, . . . the = day of=20 the act, event, or default after which the designated period of = time=20 begins to run is not to be included. The last day of the = period so=20 computed is to be included.=94); Tex. R. Civ. P. = 166a(c); Geiselman v. Cramer Fin. Group, = Inc., 965=20 S.W.2d 532, 535 (Tex. App.=97Houston [14th Dist.] 1997, no writ) = (noting=20 that when summary judgment hearing was set for November 7, last = day to=20 file response was October 31). The record contains no = indication that the trial court granted Speck leave to file the = affidavits=20 late or otherwise considered them in granting summary = judgment. =20 Speck=92s affidavits therefore are not summary judgment = evidence. =20 See Crowder, 919 S.W.2d at 663; Bryant, 686 = S.W.2d at=20 615.

2. Affidavits = in the=20 Pleadings

=20 The Church and Dry = Bones=20 contend that the affidavits Speck included with his pleadings do = not=20 constitute summary judgment evidence because Speck did not attach = them to,=20 or otherwise refer to them, in his summary judgment = responses. The=20 affidavits in Speck=92s pleadings state the elements of a sworn=20 account.

A party = must=20 expressly and specifically identify the supporting evidence on = file that=20 it seeks the trial court to consider in a summary judgment motion = or a=20 response to a summary judgment motion. Boeker v.=20 Syptak, 916=20 S.W.2d 59, 61 (Tex. App.=97Houston [1st Dist.] 1996, no writ); = see=20 also Tex. R.=20 Civ. P. 166a(i) cmt. = (=93To defeat=20 a [no-evidence summary judgment] motion made under paragraph (i), = the=20 respondent is not required to marshal its proof; its response need = only=20 point out evidence that raises a fact issue on the challenged=20 elements.=94).[1] =20 =93Additionally, affidavits attached to pleadings but not = attached to=20 the motion for summary judgment will not be included as summary = judgment=20 evidence.=94 Boeker, 916 S.W.2d at 61=9662.[2] =

Here, = Speck did=20 not attach the = affidavits=20 included with his pleadings to his summary judgment responses, nor = did he=20 incorporate the affidavits by reference. The affidavits = attached to=20 Speck=92s pleadings are therefore not summary judgment=20 evidence. See = id.

3. Remaining=20 Evidence

=20 Speck=92s remaining evidence consists of (1) invoices, receipts, = time=20 sheets, bills, and business records that Speck filed with the = trial court=20 as exhibits, and (2) two affidavits authenticating these records = under the=20 business records exception to the hearsay rule, and the=20 self-authentication rule. See Tex. R. Evid. 803(6),=20 902(10). These business records and affidavits do not = demonstrate=20 that the circumstances were such that = the=20 Church and Dry Bones received reasonable notification that Speck = expected=20 payment for any services or material he might have rendered or=20 furnished. See=20 Vortt Exploration Co., 787 = S.W.2d at=20 944. =

The=20 records include a letter from Dry Bones thanking Speck for a = $1,600=20 donation. Speck appears to have written the following on the = face of=20 the letter: =93Sorry Jack, this was not a gift. It was an = advance so=20 you could buy food to get started back in September. Copy = sent back=20 12/21/04.=94 Speck, however, produced no evidence that he = sent this=20 letter back to Dry Bones, or that Dry Bones received it. The = letter=20 therefore does not constitute more than a scintilla of evidence = that Dry=20 Bones received reasonable notification that Speck expected = reimbursement=20 for his expenditures. The letter does no more than create a = mere=20 surmise or suspicion of fact without evidence that Dry Bones = actually=20 received it. See Faircloth, 898 S.W.2d at 282; = Macias, 988 S.W.2d at 317; see = also=20 Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 216=9617 = (Tex.=20 App.=97Dallas 2005, no pet.) (holding summary judgment on = plaintiff=92s=20 quantum meruit claim was proper because plaintiff produced = evidence that=20 employer reimbursed employees if they timely submitted cellular = telephone=20 bills, but produced no evidence that he timely submitted his = bill). = The=20 remainder of Speck=92s records demonstrate that he tracked the = expenditures=20 he made for the Church and Dry Bones, but do not indicate that the = Church=20 and Dry Bones received reasonable notification that they were = expected to=20 reimburse him for these expenditures. =

We hold that the = evidence Speck=20 presented is insufficient to raise a genuine issue of material = fact on the=20 fourth element of his quantum meruit claims. See=20 Vortt Exploration Co.,=20 787 S.W.2d at 944. The=20 trial court therefore properly granted the Church=92s and Dry = Bones=92 motions=20 for summary judgment on Speck=92s quantum meruit claims.=20 See Heldenfels Bros., Inc. v. City of = Corpus=20 Christi, 832 S.W.2d 39, 41 (Tex. 1992) (holding evidence was=20 insufficient to support quantum meruit claim when plaintiff = produced no=20 evidence that circumstances reasonably notified defendant that = plaintiff=20 expected payment for goods); Stewart, 156 S.W.3d at = 216=9617 (holding=20 summary judgment on plaintiff=92s quantum meruit claim was proper = because=20 plaintiff produced evidence that employer reimbursed employees if = they=20 timely submitted cellular telephone bills, but produced no = evidence that=20 he timely submitted his bill); McFarland v. Sanders, 932 = S.W.2d=20 640, 643=9644 (Tex. App.=97Tyler 1996, no writ) (holding evidence = was=20 insufficient to support quantum meruit claim because plaintiff = produced no=20 evidence that plaintiff provided services for defendant=92s = benefit);=20 Peko Oil USA v. Evans, 800 S.W.2d 572, 575=9676 (Tex. = App.=97Dallas=20 1990, writ denied) (holding that trial court erred in overruling=20 defendant=92s motion for directed verdict on plaintiff=92s quantum = meruit=20 claim because plaintiff produced no evidence that circumstances = reasonably=20 notified defendant that plaintiff expected payment for services); = Econ.=20 Forms Corp. v. Williams Bros. Constr. Co., 754 S.W.2d 451, = 458=9659=20 (Tex. App.=97Houston [14th Dist.] 1988, no writ) (holding that = summary=20 judgment was proper on plaintiff=92s quantum meruit claim because = plaintiff=20 produced no evidence that circumstances reasonably notified = defendant that=20 plaintiff expected payment for goods and = services).

Excess=20 Relief

=20 The Church=92s and Dry Bones=92 summary judgment motions = challenged only the=20 evidence supporting Speck=92s quantum meruit claims. The = trial court,=20 however, granted summary judgment on all of Speck=92s claims, = including his=20 sworn account and breach of contract claims. The Church and = Dry=20 Bones assert that Speck has waived any complaint regarding this = excess=20 relief because he failed to raise it at trial or on appeal. = While=20 Speck did not specifically assert in his appellate brief that the = trial=20 court=92s judgment should be reversed because the trial court = granted the=20 Church and Dry Bones excess relief, he nevertheless expressly = contends on=20 appeal that fact issues exist on his sworn account and breach of = contract=20 claims.

=20 =93[A] motion for summary judgment = shall state=20 the specific grounds therefor.=94 Tex. R. Civ. P. = 166a(c). =20 A trial court can only grant summary judgment on the grounds addressed = in the=20 motion for summary judgment. =20 See Blancett v. Lagniappe=20 Ventures, Inc., 177 = S.W.3d 584,=20 592 (Tex. App.=97Houston [1st Dist.] 2005, no pet.); Postive = Feed, Inc.=20 v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.=97Houston [1st = Dist.] 1999, no=20 pet.) (=93When, as here, a trial court grants more = relief by=20 summary judgment than requested, by disposing of issues never = presented to=20 it, the interests of judicial economy demand that we reverse and = remand as=20 to those issues, but address the merits of the properly presented=20 claims.=94 (citing Bandera Elec.=20 Coop., Inc. v. Gilchrist, 946 = S.W.2d 336,=20 337 (Tex. 1997))). =20 A motion for summary judgment =93must stand or fall = on the=20 grounds expressly presented in the motion.=94 McConnell = v.=20 Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. = 1993). =20 =93A trial court that renders = judgment=20 based upon a motion errs in granting more relief than the motion=20 requests.=94 Toubaniaris v. Am. Bureau of Shipping, = 916 S.W.2d=20 21, 23 (Tex. App.=97Houston [1st Dist.] 1995, no writ); see = also=20 Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) = (=93A=20 judgment that grants more relief than a party is entitled to is = subject to=20 reversal, but it is not, for that reason alone, = interlocutory.=94). =20

An=20 appellant=92s brief =93must state concisely all issues or points = presented for=20 review,=94 and the =93statement of an issue or point will be = treated as=20 covering every subsidiary question that is fairly = included.=94 Tex. R. App. P. = 38.1(e). =20 =93[I]t = is our=20 practice to construe liberally points of error in order to obtain = a just,=20 fair and equitable adjudication of the rights of the = litigants.=94 =20 Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. = 1989);=20 see also Tex. R. = App.=20 P. 38.9; Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d = 52, 54=20 (Tex. 1998) (=93Courts should liberally construe = briefing=20 rules.=94); = Anderson v.=20 Gilbert, 897 = S.W.2d 783,=20 784 (Tex. 1995) (=93Courts are to construe rules on briefing = liberally.=94). An = appellant=92s=20 brief must also contain a clear and concise argument for the = contentions=20 made, with appropriate citations to authorities and to the = record. =20 Tex. R. App. P.=20 38.1(h);=20 see = also Vickery=20 v. Vickery, 999 = S.W.2d 342,=20 352=9653 (Tex. 1999).

=20 Here, in his sole = issue, Speck=20 asserts that, =93The Trial Court Erred In Granting Appellees=92 = Motion For=20 Summary Judgment, As There Existed Evidence In The Court=92s File = Supporting=20 Appellant=92s Case.=94 The argument section of Speck=92s = appellate brief=20 then contains the following statements:

A=20 sworn account was pleaded and proved in all its elements. = There was=20 an open account between the parties for over a year. The = parties=20 operated under the account arrangement. Appellant performed = his=20 obligations under the account agreement and expected = payment. The=20 Appellees, after receiving the benefit of the bargain refused to=20 pay.

There=20 was a contractual agreement between the parties. The = Appellant=20 agreed to do certain remodeling for Appellees, and to be = reimbursed for=20 [sic] same. The work was performed and accepted. The = Appellees=20 made partial payment on the agreement, and should now be estopped = from=20 denying the agreement.

Construing Speck=92s = issue and=20 argument liberally, we hold that Speck=92s appellate brief fairly = includes a=20 complaint regarding the trial court=92s grant of excess relief to = the Church=20 and Dry Bones.=20 See Tex. R. App. P. = 38.1(e), (h);=20 Tex. R. App. P. = 38.9=20 (=93Because briefs are = meant to=20 acquaint the court with the issues in a case and to present = argument that=20 will enable the court to decide the case, substantial compliance = with this=20 rule is sufficient . . . .=94);=20 Sterner, 767 S.W.2d at 690; Hagberg v. = City of=20 Pasadena, No. 01-05-00466-CV, 2007 WL 494201, at *3 (Tex. = App.=97Houston=20 [1st Dist.] Feb. 15, 2007, no pet.) (liberally construing issue = and=20 holding that it fairly included subsidiary issue). When read = together, Speck=92s issue and argument assert that the = trial court=92s=20 summary judgments on his sworn account and breach of contract = claims were=20 improper because factual disputes remain on these claims. We = hold=20 that when a trial court grants summary judgment on a ground not = contained=20 in the motion for summary judgment, an assertion on appeal that = fact=20 issues remain on that ground is sufficient under the Texas Rules = of=20 Appellate Procedure to raise a challenge to the excess = relief=97without any=20 request for summary judgment on a claim, nothing exists in the = trial court=20 record to controvert an appellant=92s contention on appeal that = facts exist=20 to support it. See Tex.=20 R. App. P.=20 38.1(e), (h); Sterner, 767 = S.W.2d at=20 690; Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 = (Tex. 1970)=20 (holding that issue stating that trial court erred in granting = summary=20 judgment is sufficiently broad to allow argument as to all = possible=20 grounds upon which summary judgment should have been = denied). =20 The trial court therefore erred in granting summary judgment on = Speck=92s=20 sworn account and breach of contract claims. See = Tex. R. Civ. P. = 166a(c); Lehman,=20 39 S.W.3d at 200; McConnell, 858 S.W.2d at 341;=20 Blancett,=20 177 S.W.3d at 592; Guthmann, 4 S.W.3d at 881;=20 Toubaniaris, 916 S.W.2d at 23. =20 Accordingly, we reverse the trial court=92s = judgment on=20 Speck=92s sworn account and breach of contract claims and remand = these=20 claims for further = proceedings. =20

Conclusion

=20 We hold that the trial court (1) properly granted the Church=92s = and Dry=20 Bones=92 summary judgments on Speck=92s quantum meruit claims = because Speck=20 failed to produce sufficient evidence to raise a genuine issue of = material=20 fact on these claims, and (2) erred in granting summary judgment = on=20 Speck=92s sworn account and breach of contract claims because the = Church and=20 Dry Bones did not move for summary judgment on these claims. = We=20 therefore affirm the trial court=92s judgment with regard to = Speck=92s quantum=20 meruit claims. We reverse the trial court=92s judgment with = regard to=20 Speck=92s sworn account and breach of contract claims, and remand=20 for = further=20 proceedings.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; =20 Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; =20 Justice

Panel consists of = Justices=20 Nuchia, Hanks, and Bland.