Lowry v. Liberty Lloyds of Texas Ins. Co.
(Tex.App.- Houston [1st Dist.] Dec. 11, 2008)(Alcala)
(appeal from summary judgment; one ground for sj not challenged)
Justice Elsa Alcala  
Before Justices Taft, Alcala and Hanks
01-07-00796-CV        David Lowry v. Liberty Lloyds of Texas Insurance Company
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court
Judge: Hon. Linda Storey

Appellant, David Lowry, appeals the summary judgment rendered in favor of appellee, Liberty Lloyd’s of Texas
Insurance Company (Liberty), that claimed Lowry’s causes of action were barred by statutes of limitations and
that Lowry’s claims had been released by a class action settlement in William Morris v. Liberty Mutual Fire Ins.
Co., No. CJ-03-714 (Dist. Ct., Pottawatomie County, Okla. Feb 22, 2005). The trial court granted Liberty’s
motion for summary judgment without stating the ground on which it granted the motion and dismissed Lowry’s
claims against Liberty with prejudice.

On appeal, Lowry’s two issues challenge the
limitations ruling and res judicata, but he does not challenge the
summary-judgment ground of release, which was one of the alternative grounds on which the summary
judgment order in favor of Liberty was rendered. “If summary judgment may have been rendered, properly or
improperly, on a ground not challenged, the judgment must be affirmed.” Ellis v. Precision Engine Rebuilders,
Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Jacobs v. Satterwhite, 65 S.
W.3d 653, 655 (Tex. 2001) (holding appellate court may not reverse judgment on grounds not raised and
argued on appeal). Because Lowry does not challenge the ground of release, we must uphold the trial court’s
summary judgment in favor of Liberty.

We deny Liberty’s motion to dismiss the appeal due to Lowry’s failure to name Liberty as an appellee in the
notice of appeal and Lowry’s failure to comply with rules of appellate procedure. See
Warwick Towers Council
of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (holding insurer should have been
permitted to amend notice to name itself as appellant and merits of appeal should have been addressed). We
grant Lowry’s motion to correct the caption of the appeal and we have changed the style of this opinion to
conform with the amended style.

We affirm the judgment of the trial court.

                                                                  Elsa Alcala


Panel consists of Justices Taft, Alcala, and Hanks.