law-summary-judgment-must-state-basis | no SJ on claims motion did not ask for | movant must state basis of
motion for summary judgment
In his third and fifth issues, Cobb argues that the trial court erred in rendering a final judgment that disposed
of his claims for attorney’s fees and a declaratory judgment because these claims had not been presented to
the trial court in a summary judgment motion. Regarding Cobb’s claim for attorney’s fees, Morace asserts
that “Cobb did not present any evidence to the Trial Court establishing the reasonableness or necessity of
any amount claimed for attorney’s fees” and that the trial court “had an equitable basis to determine that no
fees should be awarded to either side.” Morace argues that Cobb’s claim for a declaratory judgment was
untimely because “Cobb filed this pleading in August of 2007 after the Trial Court had advised the parties
that it intended to enter a final summary judgment. . . .”
An order is final and appealable whenever a trial court clearly indicates its intention to render a final,
appealable judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001). So, an “order can
be final and appealable when it should not be.” Id. For example, when a trial court grants a summary
judgment motion that addressed all of a party’s claims when it was filed but does not address claims timely
added by amendment after the motion was filed, the order is “reversible, but not interlocutory” so long as it
“state[s] unequivocally that final judgment is rendered.” Id. Rendering final judgment on claims that neither
party has presented to the trial court in a summary judgment motion is reversible error. See id.; Chessher v.
Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam) (holding that unaddressed claims cannot be
basis for summary judgment). Summary judgment may only be rendered on “issues expressly presented to
the trial court by” conclusive proof of all essential elements of the cause of action, or defense, as a matter of
law. Id. (quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)). When claims
have not been presented to a trial court in a motion for summary judgment, the trial court errs in rendering
judgment on those claims. Id.
Cobb v. Morace (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Jennings)(mediated settlement agreement MSA,
breach of settlement agreement)(summary judgment addressed more issues than covered by motion)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland
01-07-01036-CV W. Neil Cobb v. Johnny B. Morace and Geo-Lab, Inc.
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. John Thomas Wooldridge
Neither party moved for summary judgment on its claim for attorney’s fees resulting from the other party’s
breach of the MSA. Nevertheless, the trial court rendered a final judgment stating that “all relief requested
that is not set out herein is denied.” In doing so, the trial court improperly denied Cobb’s claim for attorney’s
fees because that issue was not expressly presented to the trial court in any summary judgment motion. See
Chessher, 658 S.W.2d at 564 (quoting Clear Creek Basin Auth., 589 S.W.2d at 678).
Accordingly, we hold that the trial court erred in rendering a final judgment on Cobb’s claim for attorney’s
fees when neither party had presented this claim to the trial court in a summary judgment motion.
We sustain Cobb’s third issue.
We reverse the portion of the trial court’s judgment that denies Cobb’s claims for attorney’s fees and for
declaratory judgment regarding his DC claims and remand these issues to the trial court so that these claims
may be expressly presented to and considered by the trial court. Footnote See Chessher, 658 S.W.2d at 564.