law-motion-for-summary-judgment-must-state-basis | sufficiency of motion for summary judgment PMSJ DMSJ
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adequacy of response to plaintiff's motion for summary judgment | legal sufficiency challenge to summary
judgment on appeal |
A motion for summary judgment must stand or fall on the grounds expressly presented
in the motion. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). A
trial court errs in granting more relief than was requested. Inglish v. Union State Bank,
945 S.W.2d 810, 811 (Tex. 1997).
A motion for summary judgment must stand or fall on the grounds expressly presented in the motion,
McConnell v. Southside Independent School District, 858 S.W.2d 337, 341 (Tex. 1993), and a trial
court may not grant summary judgment on a ground not presented by the movant in writing. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). Likewise, on appeal, the
issues reviewed by the appellate court "must have been actually presented to and considered by the
trial court." Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). An appellate court should
consider all the grounds for summary judgment ruled on by the trial court that were preserved by the
movant and are necessary for final disposition of the appeal; an appellate court may consider, in the
interest of justice, grounds that the movant preserved for review and on which the trial court did not
rule. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).
MSJ MUST STATE BASIS |
COURT CAN ONLY CONSIDER GROUNDS ON WHICH SJ IS SOUGHT
It is improper for a court to grant summary judgment on an issue (lack of legal duty) that is not pled or argued
in the summary judgment pleadings. See Tex. R. Civ. P. 166a(c); McConnellv. Southside Indep. Sch. Dist.,
858 S.W.2d 337, 339 (Tex. 1993); Coastal CementSand Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.
2d 562, 565 (Tex.App.—Houston [14th Dist.] 1997, pet. denied); see also Khan v. Yazdchi, No. 01-02-00918-
CV, 2003 WL 21513628, at *4 (Tex. App.—Houston [1st Dist.] 2003, no pet.)(mem. op.).
It is well settled that “[a] motion for summary judgment must itself expressly present the grounds upon which it
is made, and must stand or fall on these grounds alone.” Science Spectrum, Inc. v. Martinez, 941 S.W.2d
910, 912 (Tex. 1997).
"It is axiomatic that one may not be granted judgment as a matter of law on a cause of action not addressed
in a summary judgment proceeding.” Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.
1983). It is thus generally reversible error for a trial court to render summary judgment on a claim not
addressed in the summary-judgment motion. See Dubose v. Worker’s Medical, P.A., 117 S.W.3d 916, 922
(Tex. App.—Houston [14th Dist.] 2003, no pet.).
AWC argues on appeal that reverse corporate veil piercing is only a post-judgment collection mechanism,
but it did not raise this argument until its summary-judgment reply. “[A] movant may not use a reply brief . . .
to assert new grounds for summary judgment.” Comm’y Initiatives, Inc. v. Chase Bank of Tex., N.A., 153 S.W.
3d 270, 280 (Tex. App.—El Paso 2004, no pet.); see Sanchez v. Mulvaney, 274 S.W.3d 708, (Tex. App.—
San Antonio 2008, no pet.) (“[A] movant may not use a reply brief . . . to assert new grounds for summary
judgment. Therefore, we do not consider any arguments raised in [the movant’s] reply and we will consider
only those grounds specifically raised in [his] motion for summary judgment in order to determine the basis
on which he moved for judgment.”).
Wilson v. Davis (Tex.App. - Houston [1st Dist.] Aug. 14, 2009)(Taft)
The non-movant must expressly present to the trial court, by written answer or response, any issues
defeating the movant's entitlement to summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.
W.2d 671, 678 (Tex. 1979); Tello v. Bank One, N.A., 218 S.W.3d 109, 118 (Tex. App.- Houston [14th Dist.]
2007, no pet.). “Issues not expressly presented to the trial court by written motion, answer or other response
shall not be considered on appeal as grounds for reversal." Tex. R. Civ. P. 166a(c). However, a motion
for traditional summary judgment must stand or fall on its own merits, and the non-movant's
failure to answer or respond cannot supply by default the summary-judgment proof necessary to establish
the movant's right. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). Even if a
non-movant fails to present any issues in its response or answer, the movant's right is not established by
default; the movant must still establish its entitlement to summary judgment. Id. "The effect of such a
failure is that the non-movant is limited on appeal to arguing the legal sufficiency of the grounds presented
by the movant." Id.
NON-MOVANT MUST ALSO RESPOND WITH SPECIFICITY, OR BE LIMITED TO LEGAL SUFFICIENCY
ARGUMENT ON APPEAL
In his fourth issue, Sandhu contends he pleaded and raised a fact issue on each element of the affirmative
defenses of failure of consideration, fraud, and estoppel. However, Sandhu did not raise failure of
consideration or estoppel in either his response or supplemental response to the motion for partial summary
judgment. A non-movant is required to expressly present to the trial court any issues defeating the movant's
entitlement to summary judgment. Tello, 218 S.W.3d at 118. Issues are "expressly" presented in
accordance with Rule 166a(c) when the written answer or response to the motion for summary judgment
fairly apprises the movant and the trial court of the issues the non-movant contends should defeat the
motion. Id. at 119. In determining which issues were expressly presented to the trial court, a reviewing court
may not rely on the appellate briefs or the summary-judgment evidence.[5] Dubose v. Worker's Med., P.A.,
117 S.W.3d 916, 920 (Tex. App.- Houston [14th Dist.] 2003, no pet.). Any issues not expressly presented to
the trial court in a written response shall not be considered as grounds for reversal. Id. Therefore, Sandhu
has waived these issues on appeal. Id.
Sandhu v. Pinglia Investments of Texas, LLC (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Seymore)
(commercial real estate transaction: financing of purchase of shopping center, breach of promissory note,
summary judgment procedure, sufficiency of response to PMSJ, affirmative defenses not properly asserted in
response to Plaintiff's motion, proof of balance due and damages in note suit, challenges to summary
judgment evidence, affidavit conclusory)
Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Charles Seymore
Panel members: Chief Justice Hedges, Justices Anderson and Seymore
14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia
Appeal from 164th District Court of Harris County
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