SUMMARY JUDGMENT APPELLATE ISSUES IN

TEXAS

DAVID F. JOHNSON
Winstead PC
777 Main St., Suite 1100
Fort Worth, TX 76102

TARRANT COUNTY BAR ASSOCIATION

JANUARY 21, 2011
 DAVID FOWLER JOHNSON
[email protected]
777 Main St., Suite 1100
Fort Worth, Texas 76102
(817) 420-8223

BOARD CERTIFICATIONS:
*Board Certified – Civil Appellate Law, Civil Trial Law, and Personal Injury Trial Law – Texas Board of
Legal Specialization (Fewer Than Twenty Practicing Lawyers Certified In Those Three Areas)

AWARDS AND HONORS:

* Named by Fort Worth Texas Magazine as One of Tarrant County’s Best Appellate Lawyers in 2004-2010
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* Tech Law Review selected article entitled "Narrowing the Ability to Strike Jurors: The Texas Supreme
Court Addresses Important Voir Dire Issues" as the Outstanding Lead Article in 2007.
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CURRENT LEGAL EMPLOYMENT:

*Shareholder: Winstead PC
-General Civil Appellate and Trial Practice

EDUCATION:
Baylor University School Of Law, Waco, Texas, Juris Doctor, Magna Cum Laude, 1997
Baylor University, Waco, Texas, B.B.A. in Accounting, 1994

ARTICLES AND CLE MATERIALS:

David has published over twenty (20) law review articles on topics including experts, summary judgments,
charge practice, preservation of error, voir dire, and other topics. David's articles have been cited as
authority by federal courts, the Texas Supreme Court, the Texas courts of appeals located in Waco,
Texarkana, Tyler, Beaumont, and Houston, and cited by McDonald and Carlson in their Texas Civil
Practice treatise and William V. Dorsaneo in the Texas Litigation Guide and in the Baylor Law Review,
South Texas Law Review, and the Tennessee Law Review. David has presented and/or prepared written
materials for over fifty (50) continuing legal education courses.
I. INTRODUCTION S.W.3d 839, 840 (Tex. 2009) (per curiam). For
example, summary judgments are not afforded
This article is meant to be a practical the finality presumption; rather, they are
guide for practicing attorneys who must deal presumed to be interlocutory and not appealable.
with summary judgments on appeal. Almost all See Hood v. Amarillo Nat'l Bank, 815 S.W.2d
attorneys will eventually find themselves asking 545, 547 (Tex. 1991). Ordinarily, the order
an appellate court to either affirm or reverse a granting summary judgment must expressly
summary judgment. When in that position, an dispose of all parties and all issues in the case in
attorney needs to be aware of a multitude of order for it to be a final, appealable judgment.
issues that can drastically affect the fate of the See Continental Airlines, Inc. v. Kiefer, 920
summary judgment on appeal. S.W.2d 274, 27677 (Tex. 1996); Park Place
Hosp. v. Estate of Milo, 909 S.W.2d 508, 510
II. FINALITY OF SUMMARY (Tex. 1995); Mafrige v. Ross, 866 S.W.2d 590,
JUDGMENT ORDERS 591 (Tex. 1994). If the order does not dispose
of all issues and all parties, it normally will be
The first step in appealing a summary considered interlocutory and not appealable. See
judgment is determining whether the order is a Park Place Hosp., 909 S.W.2d at 510; see also
final judgment that can be appealed. Generally, Mafrige, 866 S.W.2d at 591.
Texas appellate courts may review only final
judgments, and there can be only one final A. Mafrige v. Ross, 866 S.W.2d 590 (Tex.
judgment in any case. See Colquitt v. Brazoria 1993).
County, 324 S.W.3d 539 (Tex. 2010); Cherokee
Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. A problem arises when a trial court's
1985). Further, an appellate court must order does not expressly dispose of all issues
determine if it has jurisdiction to review an and parties but includes a Mother Hubbard
appeal, even if it must be done sua sponte. See clause. "A Mother Hubbard clause generally
New York Underwriters Ins. Co. v. Sanchez, 799 recites that all relief not expressly granted is
S.W.2d 677, 678 (Tex. 1990); see also Di denied." Mafrige, 866 S.W.2d at 590 n.1. Is the
Ferrante v. Georgiades, No. 14 96-01199-CV, order final and appealable, which starts the
1997 WL 213844, at *6 (Tex. App.—Houston appellate timetable running, or is the order
[14th Dist.] May 1, 1997, writ denied) (not interlocutory?
designated for publication); Welch v.
McDougal, 876 S.W.2d 218, 220 (Tex. App.— In Mafrige v. Ross, the trial court
Amarillo 1994, writ denied). If an appellate granted several of the defendant's summary
court rules without jurisdiction to do so, then judgment motions. 866 S.W.2d at 590-91. In
any judgment entered by the appellate court is each of the orders, the trial court used essentially
void and of no effect. See Di Ferrante, 1997 the following language, "It is . . . therefore,
WL 213844, at *2 n.2; see also Johnson v. State, ORDERED, ADJUDGED and DECREED that
747 S.W.2d 568, 569 (Tex. App.—Houston the Motion for Summary Judgment of Defendant
[14th Dist.] 1988, no writ). . . . should in all things be granted and that
Plaintiff . . . take nothing against Defendant." Id.
A judgment rendered after a trial on the (alteration in original). The plaintiffs appealed
merits is presumed final and appealable, even the summary judgments and argued that they
absent clear language so stating. See Vaughn v. were final orders because of the Mother
Drennon, 324 S.W.3d 560 (Tex. 2010); John v. Hubbard language. See id. The court of appeals
Marshall Health Serv., Inc., 58 S.W.3d 738, 740 held that the summary judgment orders were
(Tex. 2001); Martinez v. Humble Sand & interlocutory because they failed to address one
Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994). or more of the causes of action asserted by the
But “when there has been no traditional trial on plaintiffs. See id. Therefore, the court of
the merits, no presumption arises regarding the appeals dismissed the appeal for want of
finality of a judgment." Crites v. Collins, 284 jurisdiction. See id.

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 1

 The Texas Supreme Court reversed the Inglish, 945 S.W.2d at 811. Since the plaintiff
judgment of the court of appeals. See id. at 590. did neither, the court of appeals had no
The court stated: jurisdiction to decide the merits of the appeal.
See Inglish, 945 S.W.2d at 811. The supreme
If a summary judgment order court dismissed the plaintiff's appeal, reversed
appears to be final, as evidenced the judgment of the court of appeals, and
by the inclusion of language rendered judgment dismissing the appeal for
purporting to dispose of all want of jurisdiction. See Inglish, 945 S.W.2d at
claims or parties, the judgment 811.
should be treated as final for
purposes of appeal. If the B. Reversal of Mafrige
judgment grants more relief
than requested, it should be In 2001, the Texas Supreme Court
reversed and remanded, but not reversed Mafrige and held that Mother Hubbard
dismissed. . . . Litigants should language did not make an otherwise
be able to recognize a judgment interlocutory judgment a final appealable
which on its face purports to be judgment. See Lehmann v. HarCon Corp., 39
final, and courts should be able S.W.3d 191, 195 (Tex. 2001). The Court stated
to treat such a judgment as final its holding as:
for purposes of appeal.
[I]n cases in which only one
Id. at 592. final appealable judgment can
be rendered, a judgment issued
The supreme court reversed and without a conventional trial is
remanded the cause for further proceedings on final for purposes of appeal if
the merits because the trial court's order was and only if either it actually
final and the plaintiffs correctly appealed it. See disposes of all claims and
id. Further, the court held that if the Mother parties then before the court,
Hubbard language in a summary judgment order regardless of its language, or it
has the effect of granting more relief than was states with unmistakable clarity
requested, the appellate court should reverse and that it is a final judgment as to
remand the summary judgment, but not dismiss all claims and all parties.
the appeal. See id. If the plaintiffs had failed to
appeal the apparently interlocutory summary Id. at 192-93. Apparently, the Court found that
judgment order until after the appellate time Mother Hubbard language, in general, did not
table had run, they would have lost their appeal. state "with unmistakable clarity" that the
The Mother Hubbard language turned what judgment was final:
clearly appeared to be an interlocutory judgment
into a final, appealable one. Much confusion can be
dispelled by holding, as we now
The Texas Supreme Court reinforced do, that the inclusion of a
Mafrige and its bright line rule in Inglish v. Mother Hubbard clause – by
Union State Bank, 945 S.W.2d 810, 811 (Tex. which we mean the statement,
1997). The court ruled that a summary "all relief not granted is denied,"
judgment was final because it included Mother or essentially those words –
Hubbard-type language, which purported to be does not indicate that a
final. See id. The court stated, "to avoid waiver, judgment without a
[the plaintiff] was required either to ask the trial conventional trial is final for
court to correct the first summary judgment purposes of appeal. We
while the court retained plenary power or to overrule Mafrige to the extent is
perfect a timely appeal of that judgment." states otherwise.

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 2

Id. at 203-04. Accordingly, Mother Hubbard claims and parties and was
language like "all relief not expressly granted is therefore final.
denied" no longer makes an otherwise
interlocutory order final and appealable. See id. ....
See also Parking Company of America, Fort
Worth, Inc. v. Wilson, 58 S.W.3d 742 (Tex. American Express complains
2001); Bobbitt v. Strain, 52 S.W.3d 734 (Tex. that the judgment, if not
2001); Clark v. Pimienta, 47 S.W.3d 485 (Tex. corrected, will give Daredia a
2001); Guajardo v. Conwell, 46 S.W.3d 862 windfall, but being given the
(Tex. 2001). The Court stated that language relief an opponent requests can
such as "this judgment finally disposes of all hardly be considered a windfall.
parties and all claims and is appealable" is Further, had American Express
unmistakably clear and does make an order final acted promptly in pursuing its
and appealable even if the order does not claim against Daredia, before
dispose of all parties and all claims. Id. at 206. and after suit, counsel's error in
allowing the claim to be
Since Lehman, the Texas Supreme dismissed could have been
Court has continued to discuss finality of rectified, either by timely
summary judgment orders. In In re Daredia, a moving to reinstate the case, or
plaintiff obtained a default judgment against one perhaps by refiling the lawsuit.
defendant that contained a statement that it We conclude that the trial court
disposed of all parties and all claims and was clearly abused its discretion in
final. 317 S.W.3d 247 (Tex. 2009). The setting aside a judgment after its
judgment was not final, however, because there plenary power expired. Daredia
was another defendant in the suit. More than 15 has no adequate remedy at law.
months after the default, the plaintiff attempted
to file a motion for judgment nunc pro tunc to Id. at 249. Compare Crites v. Collins, 284
correct “typographical errors” and clarify that it S.W.3d 839, 840 (Tex. 2009) (per curiam) (order
was interlocutory. After the trial court granted from nonsuit was not final where no statement
the motion, the defendant filed a petition for writ of finality and where sanctions claim was still
of mandamus, arguing that the judgment was pending).
final and ended the litigation. The Texas
Supreme Court agreed with the defendant, In Ford v. Exxon Mobil Chemical
stating: Company, the Court found that a summary
judgment order was final even though it awarded
But the lack of any basis for a lump sum and did not itemize every element of
rendering judgment against damages:
Daredia did not preclude
dismissing him from the case. ExxonMobil argues that the
Even if dismissal was undisputed summary judgment
inadvertent, as American evidence established attorney's
Express insists, it was fees of $36,167 and expert fees
nonetheless unequivocal, and of $1,500, and that the trial
therefore effective. American court's award of precisely
Express complains that the trial $36,167 means it adjudicated
court never made a substantive only the former. But the award
disposition of its claims against was a lump sum that did not
Daredia, but dismissal is not a specify what it was for; that it
ruling on the merits. We may have been incorrect if it did
conclude that the judgment by not include both fees does not
its clear terms disposed of all mean it was interlocutory. We

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 3

 have never held that an order publication); Yazdchi v. Bennett Law Firm, No.
disposing of all claims can be 14-01-00928, 2002 Tex. App. LEXIS 3973
final only if it itemizes each and (Tex. App.—Houston [14th Dist.] May 30, 2002,
every element of damages no pet.) (not designated for publication); Sabre
pleaded. Similarly, a summary Oil & Gas Corp. v. Gibson, 72 S.W.3d 812
judgment order clearly (Tex. App.—Eastland 2002, pet. denied).
disposing of a suit is final even
if it does not break down that The following provisions are sufficient
ruling as to each element of to be unmistakably clear that the order is
duty, breach, and causation. intended to be final and appealable:
Accordingly, we hold this order
granting a lump sum for all 1) summary judgment disposes of "all
Ford's claims is final. claims" between the only existing parties; Lopez
v. Yates, No. 14-01-00649-CV, 2002 Tex. App.
235 S.W.3d 615 (Tex. 2007). LEXIS 8229 (Tex. App.—Houston [14th Dist.]
November 21, 2002, no pet.) (not designated for
In In re Burlington Coat Factory publication);
Warehouse of McAllen, Inc., the Court found
that a default judgment was interlocutory 2) summary judgment disposes of all of
because it did not address the plaintiff's claim the plaintiff's claims and the defendant's
for punitive damages. 167 S.W.3d 827 (Tex. "various counterclaims;" Clark v. Bula, No. 05-
2005). Interestingly, the default judgment had 01-00887-CV, 2002 Tex. App. LEXIS 4548
statements about issuing writs and executing on (Tex. App.—Dallas June 26, 2002, no pet.) (not
the judgment that would indicate it was intended designated for publication);
to be a final judgment. But the Court found that
this was not sufficient to make it final: "We 3) "all issues and matters between [the
cannot conclude that language permitting parties] have been decided, and that this Order
execution 'unequivocally expresses' finality in constitutes a final judgment;" Arredondo v. City
the absence of a judgment that actually disposes of Dallas, 79 S.W.3d 657 n.7 (Tex. App.—
of all parties and all claims." Id. at 830. Dallas 2002, pet denied);

In M.O. Dental Lab v. Rape, the Court 4) "[the court] is of the opinion that the
found that a summary judgment order was final Motions for Summary Judgment should be
where it stated only that "[n]o dangerous granted as to all claims asserted by Plaintiff;"
condition existed" and defendant "committed no Alashmawi v. IBP, Inc., 65 S.W.3d 162 (Tex.
acts of negligence." 139 S.W.3d 671, 674-75 App.—Amarillo 2001, pet. denied);
(Tex. 2004). In Ritzell v. Espeche, the Court
concluded that the summary judgment order was 5) "Judgment on all claims is entered in
final where it stated that the plaintiff take favor of Defendant;" Murphy v. Gulf States
nothing, and found that the order was incorrectly Toyota, Inc., No. 01-00-00740-CV, 2001 Tex.
granted but final. 87 S.W.3d 536 (Tex. 2002). App. LEXIS 3774 (Tex. App.—Houston [1st
See also Jacobs v. Satterwhite, 65 S.W.3d 653 Dist.] June 7, 2001, no pet) (not designated for
(Tex. 2001). publication); and

The courts of appeals have taken heed of 6) "[a]s a result of the other orders
Lehmann and have held that Mother Hubbard signed on this date, this is a final judgment"
language, alone, is not sufficient to make an Capstead Mortgage Corp. v. Sun America
order final and appealable. See Phillips v. Mortgage Corp., 45 S.W.3d 233 (Tex. App.—
Baker, No. 14-02-01099-CV, 2002 Tex. App. Amarillo 2001, no pet.).
LEXIS 8568 (Tex. App.—Houston [14th Dist.]
December 5, 2002, no pet.) (not designated for

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 4

 But courts of appeals have also held that erroneously states that it does, then it starts the
language that is very similar to, or is, Mother appellate deadlines anyway. See Lehmann v.
Hubbard language is also unmistakably clear HarCon Corp., 39 S.W.3d at 204. See also
under the facts and circumstances of those cases. Ritzell v. Espeche, 87 S.W.3d 536 (Tex. 2002);
See Hodde v. Portanova, No. 14-99-00656-CV, Kleven v. Texas Dept. of Crim. Justice –
2001 Tex. App. LEXIS 1505 (Tex. App.— Institutional Div., 69 S.W.3d 341, 343-44 (Tex.
Houston [14th Dist.] 2001, no pet. ) (not App.—Texarkana 2002, no pet.); Haas v.
designated for publication) ("[plaintiffs] take George, 71 S.W.3d 904 (Tex. App.—Texarkana
nothing by their action,"); Morales v. Craig, 2002, no pet). For example, if a defendant files
No. 03-99-00553-CV, 2001 Tex. App. LEXIS a motion for summary judgment on one of four
3724 (Tex. App.—Austin June 7, 2001, no pet.) claims raised by the plaintiff, and the trial court
(not designated for publication) (take nothing grants the motion and signs a judgment that
language and Mother Hubbard language was states that it is final and that the plaintiff takes
sufficient to constitute final judgment). nothing, the judgment is erroneous but final and
appealable. See Lehmann v. HarCon Corp., 39
In determining whether a judgment is S.W.3d at 204 . If the appellant does not file a
final, the appellate court should look to the four notice of appeal from a judgment that purports
corners of the judgment and also to the appellate to be final, though it is actually not, the
record to determine the claims asserted, the judgment still becomes final and un-appealable.
claims addressed by the judgment, and the But if that purportedly final judgment is
claims intended to be addressed. See Lehmann appealed, and after reviewing the record the
v. HarCon Corp., 39 S.W.3d at 205-06. But a appellate court determines that it is not a final
trial court cannot make an order final by signing judgment, then the appellate court will either
a subsequent order (a clarification order) that dismiss the appeal or abate the appeal and
states that the prior order was final and remand the case to the trial court to determine
appealable. See Guajardo v. Conwell, 46 whether to render a final judgment. See, e.g.,
S.W.3d 862 (Tex. 2001), but see Lopez v. Sulak, Bobbitt v. Stran, 52 S.W.3d 734, 735 (Tex.
76 S.W.3d 597 (Tex. App.—Corpus Christi 2001) (affirmed dismissal of appeal); McNally
2002, no pet). The fact that an order awards v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001)
costs does not, in and of itself, make the order (remanded to court of appeals to determine
final and appealable. See Lehmann v. HarCon whether to abate appeal).
Corp., 39 S.W.3d at 205; City of Houston v.
Houston Firemen's Relief & Ret. Fund, No. 01- C. SUMMARY JUDGMENT GROUNDS
02-00739, 2002 Tex. App.—LEXIS 2119 (Tex.
App.—Houston [1st Dist.] March 21, 2002, no A summary judgment appeal will stand
pet.) (not designated for publication). If the or fall on two main components: 1) the grounds
court of appeals is still uncertain as to the asserted in the motion; and 2) whether the
finality of the judgment, it can abate the appeal evidence was sufficient to create a fact issue in
and remand the case to the trial court for reference to the grounds. See Science Spectrum
clarification. See Lehmann v. HarCon Corp., 39 v. Martinez, 941 S.W.2d 910 (Tex. 1997).
S.W.3d at 205-06; see e.g., Vansteen Marine Accordingly, whether the grounds were properly
Supply, Inc. v. Twin City Fire Ins. Co., No. 14- asserted and what grounds were asserted are
01-00901-CV, 2002 Tex. App. LEXIS 7612 very important factors in appealing a summary
(Tex. App.—Houston [14th Dist.] October 24, judgment. See id.
2002, pet. denied) (court of appeals reviewed
reporter's record to determine finality); Walker 1. Traditional Motion For
v. City of Georgetown, 86 S.W.3d 249 (Tex. Summary Judgment
App.—Austin 2002, pet denied).
The movant must expressly state the
Most importantly, if a judgment does specific grounds for summary judgment in the
not dispose of all claims or parties, but it motion. See id; McLendon v. Detoto, No. 14-

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 5

06-00658-CV, 2007 Tex. App. LEXIS 5173 trial court may not rely on briefs or summary
(Tex. App.—Houston [14th Dist.] July 3, 2007, judgment evidence in determining whether
pet. denied). The purpose of this requirement is grounds are expressly presented. See id.; see
to provide the nonmovant with adequate also Science Spectrum, Inc. v. Martinez, 941
information to oppose the motion and to define S.W.2d 910, 912 (Tex. 1997); RR Publication &
the issues for the purpose of summary judgment. Prod. Co. v. Lewisville Indep. Sch. Dist., 917
See Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 472, 473 (Tex. App.—Fort Worth 1996,
S.W.2d 771, 772 (Tex. 1978). The specificity no writ).
requirement of Rule 166a(c) echoes the "fair
notice" pleading requirements of Texas Rules of A court of appeals cannot review a
Civil Procedure 45(b) and 47(a). Id. at 773. If ground that was not contained in the summary
the motion contains a concise statement that judgment motion to affirm that order. See
provides fair notice of the claim involved to the Paragon General Contractors, Inc. v. Larco
nonmovant, the grounds for summary judgment Constr., Inc., 227 S.W.3d 876 fn. 9 (Tex.
are sufficiently specific. See Tomlinson v. App.—Dallas 2007, no pet.). A trial court can
Estate of Theis, No. 03-07-00123-CV, 2008 Tex. only grant summary judgment on the grounds
App. LEXIS 372 (Tex. App.—Austin January addressed in the motion for summary judgment.
18, 2008, no pet. hist.); Dear v. City of Irving, See Blancett v. Lagniappe Ventures, Inc., 177
902 S.W.2d 731, 734 (Tex. App.—Austin 1995, S.W.3d 584, 592 (Tex. App.—Houston [1st
writ denied). Dist.] 2005, no pet.); Positive Feed, Inc. v.
Guthmann, 4 S.W.3d 879, 881 (Tex. App.—
In McConnell v. Southside Independent Houston [1st Dist.] 1999, no pet.) ("When, as
School District, the Texas Supreme Court dealt here, a trial court grants more relief by summary
with this issue. 858 S.W.2d 337, 338 (Tex. judgment than requested, by disposing of issues
1993). The defendant filed the summary never presented to it, the interests of judicial
judgment motion, which asserted only that economy demand that we reverse and remand as
"there were no genuine issues as to any material to those issues, but address the merits of the
facts . . . ." Id. at 339 n.1. In a separate properly presented claims.").
document the defendant filed a twelve-page
brief in support of the motion. See id. The Unaddressed issues or claims cannot be
plaintiff filed an exception to the form of the a basis for summary judgment. See Chessher v.
defendant's motion and argued that the motion Southwestern Bell Tel. Co., 658 S.W.2d 563,
did not state the grounds for the summary 564 (Tex. 1983) (per curiam). When a plaintiff
judgment. See id. at 344-45 (Hecht, J., amends her pleadings after a defendant has
dissenting). The trial court overruled the moved for summary judgment, the defendant
plaintiff's exception and granted the summary must ordinarily file an amended motion for
judgment, which the plaintiff appealed to the summary judgment to be entitled to prevail on
court of appeals. See id. at 339. The court of the entirety of the plaintiff's case. See Smith v.
appeals affirmed the trial court. See id. The Atl. Richfield Co., 927 S.W.2d 85, 88 (Tex.
Texas Supreme Court, relying on Texas Rule of App.—Houston [1st Dist.] 1996, writ denied).
Civil Procedure 166a(c), reversed the judgments The portion of a final summary judgment that is
of both lower courts. See id. at 343-44. Rule rendered on the plaintiff's entire case under these
166a(c) states, "the motion for summary circumstances must be reversed because the
judgment shall state the specific grounds judgment grants more relief that requested. See
therefor." TEX. R. CIV. P. 166a(c). Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200
(Tex. 2000); Postive Feed, Inc. v. Guthmann, 4
Taking a literal view of the rule, the S.W.3d 879, 881 (Tex. App.—Houston [1st
Texas Supreme Court held that a "motion for Dist.] 1999, no pet.). However, an exception
summary judgment must itself expressly present applies when the grounds initially asserted in the
the grounds on which it is made." McConnell, motion for summary judgment conclusively
858 S.W.2d at 341. Further, the court held that a negate an element that is common to the

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 6

allegation asserted in the amended pleadings. We hold the language in
See Judwin Props., Inc. v. Griggs & Harrison, McConnell inapplicable to this
911 S.W.2d 498, 502-03 (Tex. App.—Houston case because McConnell only
[1st Dist.] 1995, no writ). See Fraud-Tech, Inc. addressed the issue whether a
v. Choicepoint, Inc., 102 S.W.3d 366, 387 (Tex. non-movant should specially
App.—Fort Worth 2003, pet. denied). except to a motion for summary
judgment when the grounds in
The party who wants to complain of the the motion are unclear or
form of the motion must "properly" except to it. ambiguous. This case involves
But what is a "proper exception"? Must the non- a motion that is itself ambiguous
movant except to the trial court, or can he raise whether it is a motion for
the defect for the first time in his appellate brief? summary judgment or a motion
The Texas Supreme Court set forth some for forum non conveniens.
guidelines for deciding this issue. See
McConnell, 858 S.W.2d at 342-43. When the Id. at 24 (footnote omitted). Thus, the non-
motion does not present any grounds in support movant did not have to specially except to the
of summary judgment, the non-movant is not trial court to preserve error. If the non-movant
required to except to it in the trial court. See id. fails to file an exception to a motion with this
at 342; see also Mercantile Ventures, Inc. v. defect, the only harm the non-movant will incur
Dunkin' Donuts, Inc., 902 S.W.2d 49, 50 (Tex. is that, on appeal, he will lose the right to have
App.—El Paso 1995, no writ). The reasoning is the grounds narrowly focused. See McConnell,
that the motion must stand or fall on its own 858 S.W.2d at 343. Thus, the appellate court
merits, and the non-movant's failure to respond can affirm on any ground that was included in
or except to the motion in the trial court should the ambiguous summary judgment motion. See
not result in a judgment by default. See id. at 342-43. Further, these rules apply to the
McConnell, 858 S.W.2d at 342. non-movant's response and supporting brief
because he must also expressly present to the
Where the summary judgment motion trial court any issues that defeat the movant's
presents some grounds, but not all, once again "entitlement." See id. at 343; see also
the non-movant is not required to except to the Cornerstones Mun. Util. Dist. v. Monsanto Co.,
trial court because to do so in this situation 889 S.W.2d 570, 574 (Tex. App.—Houston
would require the non-movant to alert the [14th Dist.] 1994, writ denied) ("Any issue that a
movant to the additional grounds that he left out non-movant contends avoids the movant's
of his summary judgment motion. See id. See entitlement to summary judgment must be
also DeWoody v. Rippley, 951 S.W.2d 935, 944 expressly presented by written answer to the
n.7 (Tex. App.—Fort Worth 1997, writ dism'd motion, and not in a brief.").
by agr.).
There is one difference in the
It is only when the grounds in the consequences that attach to a movant's failure to
summary judgment motion are unclear or file his motion and supporting brief in the same
ambiguous that the non-movant must file an document and those resulting from a non-
exception to the motion with the trial court, thus movant's failure to file his response and
ensuring that the parties and the trial court are supporting brief in the same document. See
focused on the same grounds. See McConnell, McConnell, 858 S.W.2d at 343. A non-movant's
858 S.W.2d at 342-43. See also Porterfield v. failure to answer or respond cannot, by itself,
Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex. entitle the movant to a summary judgment
App.—San Antonio 1997, writ denied); cf. because, even if the non-movant fails to respond,
Toubaniaris v. American Bureau of Shipping, the movant still has the obligation to carry his
916 S.W.2d 21, 24 (Tex. App.—Houston [1st initial burden. See id. at 343. However, this
Dist.] 1995, no writ). The Toubaniaris court choice is not the most advantageous position for
stated the following: the non-movant because, on appeal, he may only

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 7

argue the legal sufficiency of the summary 2003, no pet.) (where a summary judgment
judgment motion. See id. Even if the party who motion does not unambiguously state that it is
is required to file an exception to the motion or filed under Rule 166a(i) and does not strictly
response with the trial court does so, that party is comply with the requirements of that Rule, then
still required to present the issue to the appellate court will construe it as a traditional motion);
court in his appellate brief, or he waives the Michael v. Dyke, 41 S.W.3d 746, 750 (Tex.
issue. See Wilson v. General Motors Acceptance App.—Corpus Christi 2001, no pet.). Further,
Corp., 897 S.W.2d 818, 823 (Tex. App.— issues not expressly presented to the trial court
Houston [1st Dist.] 1994, no writ). That the may not be considered at the appellate level,
motion or response contains the grounds is not either as grounds for reversal or as other grounds
the only requirement. The party need not in support of a summary judgment. See
completely brief each ground or issue; he must generally TEX. R. CIV. P. 166a(c); see also Stiles
only notify the opposing party of what they are. v. Resolution Trust Corp., 867 S.W.2d 24, 26
See Golden Harvest Co., Inc. v. City of Dallas, (Tex. 1993); W.R. Grace Co. v. Scotch Corp.,
942 S.W.2d 682, 691 (Tex. App.—Tyler 1997, 753 S.W.2d 743 (Tex. App.—Austin 1988, writ
writ denied) ("The motion for summary denied); Dickey v. Jansen, 731 S.W.2d 581, 583
judgment must state specific grounds on which it (Tex. App.—Houston [1st Dist.] 1987, writ ref'd
is made. The grounds in the motion are n.r.e.).
sufficiently specific if the motion gives 'fair
notice' to the non-movant.") (citations omitted) If the no-evidence point is hidden, the
(emphasis omitted). See also Harwell v. State appellate court may simply waive that ground
Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 and reverse the summary judgment unless one of
(Tex. 1995). Furthermore, if the motion itself the movant's traditional grounds can support the
states legally sufficient grounds, the trial court summary judgment. See Shaw v. Maddox Metal
does not err in considering a separately filed Works, 73 S.W.3d 472 n.2 (Tex. App.—Dallas
brief in deciding a summary judgment motion. 2002, no pet.); Hunt v. Killeen Imports, No.
See Golden Harvest Co., 942 S.W.2d at 692. 03-99-00093-CV, 1999 Tex. App. LEXIS 9278
(Tex. App.—Austin December 16, 1999, pet.
2. No-Evidence Motion for denied) (not design. for pub.); Thomas v.
Summary Judgment Clayton Williams Energy, Inc., 2 S.W.3d 734
(Tex. App.—Houston [14th Dist.] 1999, no
Just as a traditional summary judgment pet.). For example, in Tello v. Bank One, N.A.,
movant must present its grounds in the motion, a the court of appeals found that that the movant
no evidence movant must similarly raise any no waived its no-evidence grounds:
evidence grounds clearly in the motion. If an
appellate court determines that the motion did The Bank did not specify
not adequately present the no-evidence ground whether the part of its motion
to the trial court, the movant could waive that opposing Tello's counterclaims
ground because of the lack of notice to the non- was a traditional motion or a
movant. See Bean v. Reynolds Realty Group, "no-evidence" motion. At
Inc., 192 S.W.3d 856, 859 (Tex. App.— times, the Bank used language
Texarkana 2006, no pet.) (holding that motion applicable to a traditional
that stated only that "there is no evidence to motion; but at other times, the
support the plaintiff's causes of actions and Bank generally asserted that
allegations" was ineffective); Thomas v. Tello has "no evidence" to
Clayton Williams Energy, Inc., 2 S.W.3d 734 support his various claims or
(Tex. App.—Houston [14th Dist.] 1999, no factual allegations. However,
pet.). The Corpus Christi Court of Appeals is the motion did not "state the
especially quick to find waiver of no-evidence elements as to which there is no
grounds. See Richard v. Reynolds Metal Co., evidence" as required by Rule
108 S.W.3d 908 (Tex. App.—Corpus Christi 166a(i). Because the motion did

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 8

 not unambiguously state it was Refining Corp. v. Pennzoil Co., 46 S.W.3d 380
filed under Rule 166a(i) and did (Tex. App.—Houston [1st Dist.] 2001, pet.
not strictly comply with that denied) (more forgiving of drafting of
rule, we construe it as a no-evidence grounds). For example, in Salazar
traditional motion. v. Collins, the court stated:

218 S.W.3d 109 (Tex. App.—Houston [14th Although Appellees' motion

Dist.] January 9, 2007, no pet.) (citing Adams v. refers to both subsections (c)
Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, and (i) of Rule of Civil
420 (Tex. App.—Houston [14th Dist.] 2003, no Procedure 166a, which govern
pet.)). traditional and no-evidence
summary-judgment motions
However, some courts are more lenient respectively, their motion does
and will look to the merits of the motion no not delineate in any manner
matter what it is called. Tomlinson v. Estate of between traditional and no-
Theis, 2008 Tex. App. LEXIS 372 (Tex. App.— evidence claims. Salazar cites
Austin Jan. 18, 2008, no pet. hist.). In the standard of review
Tomlinson, the court found: applicable to traditional
summary-judgment motions in
When a party has mistakenly his brief, and Collins and
designated any plea or pleading, Garner do not dispute that this is
the court, if justice so requires, the applicable standard.
shall treat the plea or pleading Therefore, we construe their
as if it had been properly motion as one for a traditional
designated. The supreme court summary judgment.
has noted that although it is
good practice to use headings 2008 Tex. App. LEXIS 1565, fn. 4 (Tex. App.—
"to clearly delineate the basis Waco Feb. 27, 2008, no pet.).
for summary judgment under
subsection (a) or (b) from the If the movant fails to file a specific no-
basis for summary judgment evidence motion, i.e., does not state the elements
under subsection (i)," the rule that he challenges, then the non-movant should
does not require it. We will raise an objection, or more properly a special
therefore treat the Albins' exception, to the motion. If the non-movant
motion as a hybrid motion fails to raise this special exception or objection,
where, on the issue of some courts have held that the non-movant will
testamentary capacity, they met waive the complaint on appeal. See Quesada v.
the higher summary-judgment American Garment Finishers Corp., No.
burden under 166a by 08-02-00092-CV, 2003 Tex. App. LEXIS 3338
conclusively establishing that (Tex. App.—El Paso April 17, 2003, no pet.)
there existed no genuine issue of (memorandum opinion); Zwank v. Kemper, No.
material fact. 07-01-0400-CV, 2002 Tex. App. LEXIS 6508
(Tex. App.—Amarillo August 29, 2002, no pet.)
Id. (internal citation omitted). (not desig. for pub.); Barnes v. Sulack, No.
03-01-00159-CV, 2002 Tex. App. LEXIS 5727
Courts have held that when a party files (Tex. App.—Austin August 8, 2002, pet. denied)
a dual motion but only argues on appeal “matter (not desig. for pub.); Miller v. Elliott, 94
of law” points, it waives its “no-evidence” S.W.3d 38 (Tex. App.—Tyler July 24, 2002,
points on appeal. See Brown v. Blum, 9 S.W.3d pet. denied); Walton v. Phillips Petroleum, Co.,
840(Tex. App.—Houston [14th Dist.] 1999, 65 S.W.3d 262 (Tex. App.—El Paso 2000, pet.
review dismissed w.o.j.); but see Young denied); Williams v. Bank One Texas, N.A., 15

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 9

S.W.3d 110, 117 (Tex. App.—Waco 1999, no no-evidence ground on its own counterclaim,
pet.); Roth v. FFP Operating Partners, L.P., court found that non-movant waived error by not
994 S.W.2d 190, 194-95 (Tex. App.—Amarillo filing a special exception but reviewed motion
1999, pet. denied). See also Leifester v. Dodge under a traditional summary judgment standard
Country, Ltd., No. 03-06-00044-CV, 2008 Tex. of review); Flameout Design & Fabrication v.
App. LEXIS 790 (Tex. App.—Austin February Pennzoil Caspian Corp., 994 S.W.2d 830, 834
1, 2008, no pet. hist.). (Tex. App.—Houston [1st Dist.] 1999, no pet.);
but see Kesyler v. Menil Med. Ctr. of E. Tex.,
Other courts have held that a 105 S.W.3d 122 (Tex. App.—Corpus Christi
no-evidence motion that does not properly 2003, no pet.). Therefore, it is important for a
challenge an element of the non-movant's claim non-movant to point out to the trial court any
or defense is legally insufficient and that improper burden-shifting by an objection or
complaint can be raised for the first time on special exception.
appeal. See In re Estate of Swanson, 130
S.W.3d 144, 147 (Tex. App.—El Paso 2003, no D. Newly Added Claims
pet.); Kesyler v. Menil Med. Ctr. of E. Tex., 105
S.W.3d 122 (Tex. App.—Corpus Christi 2003, After a party files a motion for summary
no pet.); Dentler v. Helm-Perry, No. judgment, it is not uncommon for the responding
04-02-00034-CV, 2002 Tex. App. LEXIS 8167 party to file an amended petition that raises new
(Tex. App.—San Antonio November 20, 2002, claims. A party may not be granted judgment as
no pet.) (not desig. for pub.); Crocker v. a matter of law on a cause of action not
Paulyne's Nursing Home, Inc., 95 S.W.3d 416 addressed in a summary judgment proceeding.
(Tex. App.—Dallas November 8, 2002, no pet.); See Espeche v. Ritzell, 123 S.W.3d 657, 664
Gross v. Methodist Hosp. Of Dallas, No. (Tex. App.—Houston [14th] Dist. 2003, pet.
05-00-02124-CV, 2002 Tex. App. LEXIS 4590 denied) (citing Chessher v. Sw. Bell Tel. Co.,
(Tex. App.—Dallas June 27, 2002, no pet.) (not 658 S.W.2d 563, 564 (Tex. 1983)). In order to
desig. for pub.); Laparade v. Rivera, No. get a final appealable summary judgment, the
01-99-0723-CV, 2002 Tex. App. LEXIS 3487 movant will have to amend its motion for
(Tex. App.—Houston [1st Dist.] May 16, 2002, summary judgment to address this new cause of
no pet.) (not desig. for pub.); Cuyler v. Minns, action. See Avary v. Bank of Am., N.A., 72
60 S.W.3d 209 (Tex. App.—Houston [14th S.W.3d 779, 791 (Tex. App.—Dallas 2002, pet.
Dist.] 2001, pet. denied); Callaghan Ranch, Ltd. denied). "In order to be a final, appealable
v. Killam, 53 S.W.3d 1, 3 (Tex. App.—San summary judgment, the order granting the
Antonio 2000, pet. denied). For example, in motion must dispose of all the parties and all the
Rodriguez v. Gulf Coast & Builders Supply Inc., issues before the court." Lehmann v. Har-Con
the court held that if a no-evidence motion does Corp., 39 S.W.3d 191, 199 (Tex. 2001). If a
not state an element, the complaint about that summary judgment order grants more relief that
failure can be raised for the first time on appeal; was requested in the motion, it must be reversed
however, the court noted that other complaints and remanded. Id.
about the motion, e.g., vague, ambiguous, etc.,
require a special exception to preserve error. But if a motion for summary judgment
No. 14-05-00430-CV, 2006 Tex. App. LEXIS is sufficiently broad to encompass later-filed
11073 (Tex. App.—Houston [14th Dist.] claims or defenses, the movant need not amend
December 28, 2006, no pet). its motion. Lampasis v. Spring Center, Inc., 988
S.W.2d 428, 436 (Tex. App.—Houston [14th
If a movant files a no-evidence motion Dist.] 1999, no pet.). If the amended petition
based on his own affirmative defense, then the only sets forth new facts or new grounds that are
non-movant should object or specially except to totally encompassed by the prior cause of action,
that impermissible ground. See Hermann v. i.e., different ways that the movant was
Lindsey, 136 S.W.3d 286, 290 (Tex. App.—San negligent, then the original motion for summary
Antonio 2003, no pet.) (movant filed judgment will be sufficiently broad to cover the

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 10

added grounds and an amended motion for However, all these new
summary judgment will not be necessary. See variations in his second
O'Kane v. Coleman, 2008 Tex. App. LEXIS amended petition sound in
4908 (Tex. App.—Houston [14th Dist.] July 1, negligence and are composed of
2008, no pet. hist.); Dubose v. Worker's Med., the same essential elements,
P.A., 117 S.W.3d 916, 922 (Tex. App.— duty, breach, and causation,
Houston [14th Dist.] 2003, no pet.); Gulf Coast which were already challenged
Radiology Assocs. v. Malek, No. in appellees' motion. . . . .
14-02-01126-CV, 2003 Tex. App. LEXIS 3750 Therefore, [the trial court]
(Tex. App.--Houston [14th Dist.] May 1, 2003, correctly granted the no
no pet.); Garza v. Minyard Food Stores, Inc., evidence summary judgment.
No. 05-98-02134-CV, 2001 Tex. App. LEXIS We do not hold that newly filed
4123 (Tex. App.--Dallas June 22, 2001, no pet.) pleadings may not ever raise
(not desig. for pub.); Lampasis v. Spring entirely new distinct elements of
Center, Inc., 988 S.W.2d at 436. a cause of action not addressed
in a no evidence motion for
In Lampasis v. Spring Center, Inc., the summary judgment. However,
movant filed a no-evidence motion for summary based on the facts before us, the
judgment against the non-movant's negligence amended petition merely
claim. 988 S.W.2d at 436. The non-movant reiterates the same essential
filed an amended petition alleging new facts and elements in another fashion, and
new ways that the movant was negligent. The the motion for summary
trial court granted the movant a final summary judgment adequately covers
judgment, and the non-movant appealed this these new variations.
judgment arguing that the movant's motion did
not cover his newly pleaded grounds. The Id. Therefore, a non-movant will have to plead a
appellate court affirmed the summary judgment totally new cause of action with new and
and stated: different elements to be an effective delay to a
movant's motion for summary judgment.
The new no evidence summary
judgment shifts the focus of the III. STANDARDS OF TRIAL COURT
summary judgment from the REVIEW
pleadings to the actual evidence.
. . . The thrust of the new rule is In appealing a summary judgment, the
to require evidence. A no parties must consider the standard of review that
evidence summary judgment the trial court has in ruling on the motion.
prevents the nonmovant from
standing solely on his pleadings, A. Traditional Summary Judgment
but instead requires him to bring
forward sufficient evidence to The traditional summary judgment
withstand a motion for movant moves for summary judgment as a
instructed verdict. . . . Here, the matter of law under Texas Rule of Civil
no evidence motion for Procedure 166a(a) and (b). It has the burden of
summary judgment stated that production and persuasion in a summary
there was no evidence of any judgment proceeding, and the court must resolve
duty, breach, or causation. . . . against the movant all doubts as to the existence
Instead of bringing forward of a genuine issue of fact so that all evidence
evidence on these challenged favorable to the nonmovant will be taken as true.
elements, [appellant] amended See Provident Life Ins. Co. v. Knott, 128 S.W.3d
his petition to include variations 211, 215-16 (Tex. 2003); Park Place Hosp. v.
of other negligence claims. Estate of Milo, 909 S.W.2d 508, 510 (Tex.

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 11

1995); see also Kassen v. Hatley, 887 S.W.2d 4, as the movant. See Dallas County Cmty.
8 n.2 (Tex. 1994). Further, the court must College Dist. v. Bolton, 185 S.W.3d 868, 871
indulge every reasonable inference in favor of (Tex. 2005); Mead v. RLMC, Inc., No. 02-06-
the nonmovant and resolve doubts in his favor. 092-CV, 2007 Tex. App. LEXIS 2823 (Tex.
See Park Place Hosp., 909 S.W.2d at 510. App.—Fort Worth April 12, 2007, pet. denied);
James v. Hitchcock Indep. Sch. Dist., 742
The nonmovant is not required to S.W.2d 701, 703 (Tex. App.—Houston [1st
respond to the movant's motion if the movant Dist.] 1987, writ denied). Also, to win, each
fails to carry his or her burden. A trial court party must bear the burden of establishing that it
may not grant a traditional summary judgment is entitled to judgment as a matter of law. See
by default against the nonmovant for failing to Guynes v. Galveston County, 861 S.W.2d 861,
respond to the motion if the movant's summary 862 (Tex. 1993). Each party must also carry its
judgment proof is legally insufficient to support own burden as the nonmovant in response to the
the summary judgment; the movant must still other party's motion. See James, 742 S.W.2d at
establish his entitlement to judgment by 703. Further, when both parties file motions for
conclusive summary judgment proof. See City summary judgment, the court may consider all
of Houston v. Clear Creek Basin Auth., 589 of the summary judgment evidence filed by
S.W.2d 671, 678 (Tex. 1979). See also Ellert v. either party. See Commissioners Court v. Agan,
Lutz, 930 S.W.2d 152, 155 (Tex. App.—Dallas 940 S.W.2d 77, 81 (Tex. 1997). See also Rose
1996, no writ). v. Baker & Botts, 816 S.W.2d 805, 810 (Tex.
App.—Houston [1st Dist.] 1991, writ denied).
If the movant does not meet his burden
of proof, there is no burden on the nonmovant. When the plaintiff moves for summary
See Clear Creek Basin Auth., 589 S.W.2d at judgment on his own cause of action, he must
678-79. However, if the movant has established present competent summary judgment evidence
a right to a summary judgment, the burden shifts proving each element of his cause of action as a
to the nonmovant. See Clarendon Nat'l Ins. Co. matter of law. See MMP Ltd. v. Jones, 710
v. Thompson, 199 S.W.3d 482, 486-487 (Tex. S.W.2d 59, 60 (Tex. 1986); see also Geiselman
App.—Houston [1st Dist.] 2006, no pet.). The v. Cramer Fin. Group, Inc., 965 S.W.2d 532,
nonmovant must then respond to the summary 535 (Tex. App.—Houston [14th Dist.] 1997, no
judgment motion and present to the trial court writ). If the plaintiff meets his burden, the trial
summary judgment evidence raising a fact issue court may grant a final summary judgment or
that would preclude summary judgment. Id. If may grant a partial summary judgment on
the non-movant does so, summary judgment is liability alone, and hold a hearing on damages
precluded. See Clarendon Nat'l Ins. Co. v. when they are unliquidated. See TEX. R. CIV. P.
Thompson, 199 S.W.3d at 486-487. 166a(a). If the defendant asserts a counterclaim,
the trial court can grant a final summary
Recently, in Yancy v. United Surgical judgment for the plaintiff only if the plaintiff
Partners International, Inc., 236 S.W.3d 778, disproves at least one of the elements of the
782 (Tex. 2007), the Texas Supreme Court defendant's counterclaim in addition to
stated that once the non-movant files evidence, conclusively proving every element of his own
the reviewing court must consider all of the cause of action. See Schafer v. Federal Servs.
evidence to determine if a reasonable juror could Corp., 875 S.W.2d 455, 456 (Tex. App.—
find a fact issue: "When reviewing a summary Houston [1st Dist.] 1994, no writ). See also
judgment, we 'must examine the entire record in Adams v. Tri-Continental Leasing Corp., 713
the light most favorable to the nonmovant, S.W.2d 152, 153 (Tex. App.—Dallas 1986, no
indulging every reasonable inference and writ). Alternatively, the plaintiff may move for
resolving any doubts against the motion.'" a partial summary judgment solely on the
defendant's counterclaims. See Adams, 713
When both parties move for summary S.W.2d at 153. If the plaintiff carries his burden
judgment, each party must carry its own burden with respect to his motion for summary

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 12

judgment, the defendant, in order to defeat a summary judgment evidence creating a fact
summary judgment for the plaintiff, must either question on those elements of the plaintiff's case
raise a fact issue about one of the elements of under attack by the defendant, creating a fact
the plaintiff's cause of action, create a fact question on at least one element of each
question about each element of his affirmative affirmative defense advanced by the defendant,
defense, or agree to the facts and show that the or conceding the material facts and showing that
law does not allow the plaintiff a recovery. See the defendant's legal position is unsound. See
Brownlee v. Brownlee, 665 S.W.2d 111, 112 Torres v. Western Cas. & Sur. Co., 457 S.W.2d
(Tex. 1984); Dillard v. NCNB Texas Nat'l Bank, 50, 52 (Tex. 1970). Maranatha Temple, Inc. v.
815 S.W.2d 356, 360-61 (Tex. App.—Austin Enter. Prods. Co., 893 S.W.2d 92, 97 (Tex.
1991, no writ). See Hanssen v. Our Redeemer App.—Houston [1st Dist.] 1994, writ denied).
Lutheran Church, 938 S.W.2d 85, 90-91 (Tex.
App.—Dallas 1996, writ denied); Estate of B. No-Evidence Motion
Devitt, 758 S.W.2d 601, 603 (Tex. App.—
Amarillo 1988, writ denied). The trial court's review of a no-evidence
summary judgment filed under Texas Rule of
When the defendant moves for summary Civil Procedure 166a(i) differs from that of a
judgment, he must either disprove at least one traditional summary judgment.
essential element of each theory of recovery
pleaded by the plaintiff, or he must plead and 1. Historical Standard
conclusively prove each essential element of an
affirmative defense. See Friendswood Dev. Co. Under the no-evidence motion, the
v. McDade & Co, 926 S.W.2d 280, 282 (Tex. movant does not have the burden to produce
1996); Doe v. Boys Club of Greater Dallas, Inc., evidence; the burden is on the non-movant. The
907 S.W.2d 472, 476-77 (Tex. 1995). Also, in no-evidence non-movant has the initial burden
Roark v. Stallworth Oil & Gas, Inc., the Texas to present sufficient evidence to warrant a trial.
Supreme Court held that a plaintiff must except See Fort Worth Osteopathic Hosp., Inc. v.
to the defendant's summary judgment motion to Reese, 148 S.W.3d 94, 99 (Tex. 2004); Walmart
the trial court if he wants to complain on appeal Stores v. Rodriguez, 92 S.W.3d 502 (Tex.
that the defendant's pleading did not support the 2002); Robinson v. Warner-Lambert & Old
affirmative defense upon which the summary Corner Drug, 998 S.W.2d 407 (Tex. App.—
judgment was based. 813 S.W.2d 492, 494-95 Waco 1999, no pet.); Lampasas v. Spring
(Tex. 1991). The court stated, "if the non- Center, Inc., 988 S.W.2d 428, 432 (Tex. App.—
movant does not object to a variance between Houston [14th Dist.] 1999, no pet.). When a
the motion for summary judgment and the sufficient no-evidence motion is filed and
movant's pleadings, it would advance no served, the various burdens are split – the burden
compelling interest of the parties or of our legal of production (burden to produce evidence) is
system to reverse a summary judgment simply placed on the non-movant, however, the burden
because of a pleading defect." Id. at 495. If the of persuasion (burden to persuade the court that
plaintiff does except to the defendant's answer to no genuine issue of fact exists) is on the movant.
the trial court, then the defendant must only See David F. Johnson, Can A Party File a
amend his answer and add the affirmative No-Evidence Motion for Summary Judgment
defense. If the defendant moves for summary Based Upon an Inferential Rebuttal Defense? 53
judgment on his own counterclaim rather than BAYLOR L. REV. 762, 767-68 (2001). Under
on a defensive claim, then he has the same this standard, as the Supreme Court stated:
burden as a plaintiff moving for a summary
judgment on his cause of action. See Daniell v. A motion for summary
Citizens Bank, 754 S.W.2d 407, 409 (Tex. judgment must be granted if,
App.—Corpus Christi 1988, no writ). after adequate time for
Accordingly, a plaintiff can thwart a defendant's discovery, the moving party
summary judgment by either presenting asserts that there is no evidence

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 13

 of one or more specified No. 14-98-00628-CV, 1999 Tex. App. LEXIS
elements of a claim or defense 4200 (Tex. App.—Houston [14th Dist.] June 3,
on which the adverse party 1999, no pet.) (not design. for pub.); Medrano
would have the burden of proof v. City of Pearsall, 989 S.W.2d 141, 143 (Tex.
at trial and the respondent App.—San Antonio 1999, no pet.).
produces no summary judgment
evidence raising a genuine issue More than a scintilla of evidence exists
of material fact on those when the evidence rises to a level that would
elements. enable reasonable and fair minded people to
differ in their conclusions. See Ford Motor Co.
LMB, Ltd. v. Moreno, 201 S.W.3d 686, 687 v. Ridgway, 135 S.W.3d 598. On the other hand,
(Tex. 2006). See also Sudan v. Sudan, 199 if "the evidence offered to prove a vital fact is so
S.W.3d 291 (Tex. 2006). A court must review weak as to do no more than create a mere
the summary judgment evidence in the light surmise or suspicion of its existence, the
most favorable to the non-movant, disregarding evidence is no more than a scintilla and, in legal
all contrary evidence and inferences. See effect, is no evidence." Ford Motor Co. v.
Walmart Stores v. Rodriguez, 92 S.W.3d 502 Ridgway, 135 S.W.3d at 598.
(Tex. 2002); Morgan v. Anthony, 27 S.W.3d
928, 929 (Tex. 2000). The inferences that are in For clarification of the terms "genuine"
favor of the non-movant trump all other and "material fact," as they are used in Rule
inferences that may exist. See Orangefield 166a(i), Texas courts have turned to federal law.
I.S.D. v. Callahan & Assocs., No. See Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex.
09-00-171-CV, 2001 Tex. App. LEXIS 5066 App.—Houston [14th Dist.] 1998, no pet.).
(Tex. App.—Beaumont July 26, 2001, no pet.) Materiality is a criterion for categorizing factual
(not design. for pub.); Tucco Inc. v. Burlington disputes in relation to the legal elements of the
Northern R.R. Co., 912 S.W.2d 311 (Tex. claim. The materiality determination rests on
App.—Amarillo 1995), aff'd as modified, 960 the substantive law and those facts that are
S.W.2d 629 (Tex. 1997). identified by the substantive law as critical are
considered material. Stated differently, "[o]nly
A no-evidence motion for summary disputes over facts that might affect the outcome
judgment should be granted if the respondent of the suit under the governing law will properly
fails to bring forth evidence to raise a genuine preclude the entry of summary judgment."
issue of material fact. See Fort Worth Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d at 248, 91 L.Ed.2d 232, 106 S.Ct. 2595 (1986). A
99. If the nonmovant presents more than a material fact issue is genuine if the evidence is
scintilla of evidence to support the challenged such that a reasonable jury could find the fact in
ground, the court should deny the motion. See favor of the non-moving party. If the evidence
Forbes, Inc. v. Granada Biosciences, 124 simply shows that some metaphysical doubt
S.W.3d 167, 172 (Tex. 2003); King Ranch v. exists as to a challenged fact, or if the evidence
Chapman, 118 S.W.3d 742, 750 (Tex. 2003); is not significantly probative, the material fact
Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d issue is not genuine.
502, 506 (Tex. 2002). A genuine issue of
material fact exists if the nonmovant produces Both direct and circumstantial evidence
more than a scintilla of evidence establishing the may be used to establish any material fact. See
existence of the challenged element. See Ford Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex.
Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2001); Ford Motor Co. v. Ridgway, 135 S.W.3d
2004); Morgan v. Anthony, 27 S.W.3d 928 at 598. To raise a genuine issue of material fact,
(Tex. 2000). Less than a scintilla of evidence however, the evidence must transcend mere
exists when the evidence is so weak as to do no suspicion. See Ford Motor Co. v. Ridgway, 135
more than create a mere surmise or suspicion of S.W.3d at 598. Evidence that is so slight as to
fact. See Special Car Servs. v. AAA Texas, Inc.,

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 14

make any inference a guess is in legal effect no that evidence contrary to the non-movant's
evidence. See id. position be disregarded, are:

2. City of Keller's Reasonable (1) contextual evidence –

Juror Standard "The lack of supporting
evidence may not
In 2005, the Texas Supreme Court appear until all the
revisited the no-evidence standard of review. In evidence is reviewed in
City of Keller v. Wilson, the Court engaged in an context;" Id. at 811.
extensive analysis of legal sufficiency
principles. 168 S.W.3d 802 (Tex. 2005). The (2) competency evidence –
Court found that the standard should remain the "Evidence that might be
same and does not change depending on the 'some evidence' when
motion in which it is asserted. See id. at 823. considered in isolation
"Accordingly, the test for legal sufficiency is nevertheless rendered
review should be the same for summary 'no evidence' when
judgments, directed verdicts, judgments contrary evidence
notwithstanding the verdict, and appellate no- shows it to be
evidence review." Id. That test is: incompetent;" Id. at
813.
The final test for legal
sufficiency must always be (3) circumstantial equal
whether the evidence at trial evidence – "When the
would enable reasonable and circumstances are
fair-minded people to reach the equally consistent with
verdict under review. Whether either of two facts,
a reviewing court begins by neither fact may be
considering all the evidence or inferred.' In such cases,
only the evidence supporting the we must 'view each
verdict, legal-sufficiency review piece of circumstantial
in the proper light must credit evidence, not in
favorable evidence if reasonable isolation, but in light of
jurors could, and disregard all the known
contrary evidence unless circumstances.'" Id. at
reasonable jurors could not. 813-14. ; and

Id. at 827. This standard shifts the review from (4) consciousness evidence
a traditional legal sufficiency review to a – when reviewing
"reasonable juror" standard. William V. "consciousness
Dorsaneo III, Evolving Standards of Evidentiary evidence," a no
Review: Revising the Scope of Review, 47 S. evidence review must
TEX. L. REV. 225, 233-43 (2005). For example, encompass "all of the
in Wal-Mart Stores, Inc. v. Spates, the court set surrounding facts,
forth the standard of review as: "We review a circumstances, and
summary judgment for evidence that would conditions, not just
enable reasonable and fair minded jurors to individual elements or
differ in their conclusions." 186 S.W.3d 566 facts."
(Tex. 2006).
Id. at 817-18. Accordingly, a court may not
Under the City of Keller, some of the disregard certain types of evidence when a
exceptions to the general rule, which requires reasonable juror could not do so – the scope of

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 15

review has been enlarged in the context of legal See Padron v. L&M Props., No.
sufficiency of the evidence after a jury trial. 11-02-001510-CV, 2003 Tex. App. LEXIS 1229
(Tex. App.—Eastland February 6, 2003, no
C. Scope of Review For Summary pet.); Herod v. Baptist Found of Texas, 89
Judgment Motions S.W.3d 689 (Tex. App.—Eastland 2002, no
pet.); Kelly v. LIN TV of Texas, 27 S.W.3d 564
The scope of review refers to what (Tex. App.—Eastland 2000, pet. denied); Hight
evidence a court can examine in determining the v. Dublin Veterinary Clinic, 22 S.W.3d 614
merits of a motion for summary judgment. In (Tex. App.—Eastland 2000, pet. denied). These
other words, can the trial court, and on appeal cases dealt with a movant arguing that its
the court of appeals, review evidence submitted evidence proves that the non-movant does not
by the movant, the non-movant, or both? have any evidence to support a challenged
element. The courts found that the movant
Regarding a traditional motion filed could not do so.
under Texas Rules of Civil Procedure 166a(b),
the court should first review the evidence Another view is that a court may
submitted by the movant to determine if the consider all summary judgment evidence in
movant proved its entitlement to summary determining whether a fact issue exists — even
judgment as a matter of law. See City of the movant's evidence. See Louck v. Olshan
Houston v. Clear Creek Basin Auth., 589 Found. Repair Co., 14-99-00076-CV, 2000 Tex.
S.W.2d 671, 678 (Tex. 1979). Therefore, at that App. LEXIS 5337 (Tex. App.—Houston [14th
stage, the court can review the movant's Dist.] August 10, 2000, pet. denied) (not desig.
evidence. If the movant meets its burden, the for pub.); Saenz v. Southern Union Gas. Co.,
burden then shifts to the nonmovant to produce 999 S.W.2d 490 (Tex. App.—El Paso 1999, pet.
evidence to create a fact issue. See id. At this denied); Jackson v. Fiesta Mart, Inc., 979
stage, the Texas Supreme Court stated that the S.W.2d 68, 70 (Tex. App.—Austin 1998, no
reviewing court must consider all of the pet.). This view provides that the movant's
evidence to determine if a reasonable juror could evidence is nonetheless before the court and, if
find a fact issue: "When reviewing a summary applicable, can be used to support the non-
judgment, we 'must examine the entire record in movant's position. However, those courts would
the light most favorable to the nonmovant, not review the movant's evidence to support the
indulging every reasonable inference and movant's position that no evidence existed to
resolving any doubts against the motion.'" support the non-movant element. The movant's
Yancy v. United Surgical Partners International, evidence could only be used against it.
Inc., 236 S.W.3d 778, 782 (Tex. 2007).
The Texas Supreme Court has
However, a party filing a no-evidence previously implied that this view is correct. In
motion for summary judgment does not have to Binur v. Jacobo, the Court stated: "Similarly, if
file any evidence with its motion. Is the scope a motion brought solely under subsection (i)
of review the same as a traditional motion? attaches evidence, that evidence should not be
Texas Rule of Civil Procedure 166a(i) provides considered unless it creates a fact question. . ."
that "a party without presenting summary 135 S.W.3d 646 (Tex. 2004). This language
judgment evidence may move for summary would support the position that if a movant files
judgment on the ground that there is no evidence evidence with a no-evidence motion, the
. . ." TEX. R. CIV. P. 166a(i) (emphasis added). evidence should be disregarded unless it helps
One view is that a court can only look to the the non-movant and creates a fact issue.
summary judgment evidence offered by the non- Following Jacobo, several courts of appeals
movant, and that any evidence offered by the similarly stated that they would ignore evidence
movant should be disregarded for all purposes. that a movant attached or referred to in its no-
There is language in opinions from the Eastland evidence motion for summary judgment unless
Court of Appeals that may support this view. the evidence created a fact issue. See, e.g.,

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 16

Davis v. Dillard's Dep't Store, Inc., No. 11-06- After the City of Keller opinion, one
00027-CV, 2008 Tex. App. LEXIS 3201 (Tex. commentator has argued that the scope of review
App.—Eastland May 1, 2008, no pet. hist.); for a no-evidence motion has been expanded.
Poteet v. Kaiser, 2007 Tex. App. LEXIS 9749, See Tim Patton, Standard and Scope of Review
fn. 6 (Tex. App.—Fort Worth Dec. 13, 2007, Spotlight: "No-Evidence" Summary Judgment,
pet. filed); Southtex 66 Pipeline Co. v. Spoor, 17th Annual Conference on State and Federal
238 S.W.3d 538 (Tex. App.—Houston [14th Appeals, University of Texas School of Law,
Dist.] 2007, pet. denied); Dunlap-Tarrant v. (June 1, 2007). In City of Keller, as shown
Association Cas. Ins. Co., 213 S.W.3d 452, 453 above, the Texas Supreme Court included a
(Tex. App.—Eastland 2006, no pet.); DeLeon v. lengthy discussion of the "contrary evidence that
DSD Devel. Inc., 2006 Tex. App. LEXIS 7799 cannot be disregarded" by the jury when
(Tex. App.—Houston [1st Dist] August 31, rendering verdict or by the appellate court when
2006, pet. denied); Green v. Lowe's Home reviewing that verdict on no-evidence grounds.
Centers, Inc., 199 S.W.3d 514, 518 (Tex. City of Keller, 168 S.W.3d at 810-18.
App.—Houston [1st Dist.] 2006, pet denied); Accordingly, the Court's categories concern not
Seaway Prods. Pipeline Co. v. Hanley, 153 only evidence that jurors must consider but also
S.W.3d 643, 650 n.7 (Tex. App.—Fort Worth evidence a reviewing court should not disregard
2004, no pet.). Most recently, one court stated in conducting a legal sufficiency review. The
thusly: issue is whether a trial court can review
evidence filed by a no-evidence movant in
In a no-evidence motion for determining that the non-movant has no
summary judgment, the non- evidence to support a challenged element of its
movant bears the burden of claim or defense.
producing competent summary
judgment evidence; therefore in In discussing the standards for a no
this case, Space Place bore the evidence motion for summary judgment, one
burden of producing proper court cited City of Keller and stated: "We view
summary judgment evidence, the evidence in the light most favorable to the
not Midtown. See TEX. R. CIV. non-movant, disregarding all contrary evidence
P. 166a(i). Pursuant to this rule, and inferences, unless there is no favorable
we have not considered the evidence or contrary evidence renders
evidence attached by Midtown supporting evidence incompetent or conclusively
in conjunction with its motion. establishes the opposite." Brent v. Daneshjou,
See Southtex 66 Pipeline Co., No. 03-04-00225-CV, 2005 Tex. App. LEXIS
Ltd. v. Spoor, 238 S.W.3d 538, 9249 (Tex. App.—Austin Nov. 4, 2005, no pet.).
542 n.1 (Tex. App.—Houston This language would support the position that a
[14th Dist.] pet. denied) (stating court could look to "contrary evidence" to
even though the movant in a no- determine that the non-movant's evidence was
evidence summary judgment incompetent. See id.
attached evidence, the appellate
court did not consider the In the City of Keller, however, the Court
evidence). As a result, Space acknowledged that a party moving for summary
Place's objections to Midtown's judgment may not be able to take advantage of
evidence were irrelevant; the expanded scope of review. 168 S.W.3d at
therefore, we need not address 825. In a section of the opinion discussing how
Space Place's second issue on the no-evidence standard is the same no matter
the merits. how it is raised, the Court specifically excepted
summary judgment motions:
SP Midtown, Ltd v. Urban Storage, L.P., 2008
Tex. App. LEXIS 3364 (Tex. App.—Houston In practice, however, a different
14th Dist. May 8, 2008, no pet. hist.). scope of review applies when a

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 17

 summary judgment motion is Similarly, in Mathis v. Restoration
filed without supporting Builders, Inc., the Fourteenth Court of Appeals
evidence. In such cases, found that a reviewing court should only review
evidence supporting the motion the evidence attached to the non-movant's
is effectively disregarded response:
because there is none; under the
rule, it is not allowed. Thus, However, per City of Keller,
although a reviewing court must although we "must consider all
consider all the summary the summary judgment evidence
judgment evidence on file, in on file, in some cases, that
some cases that review will review will effectively be
effectively be restricted to the restricted to the evidence
evidence contrary to the motion. contrary to the motion." Thus,
Id. in this case, our review is
limited to the evidence favoring
Courts of appeals have found that the Mathis that was attached to the
City of Keller opinion stands for the proposition Response to the Motions for
that a party may not attach evidence to a no- Summary Judgment, even
evidence motion, and that if attached, it should though the body of Restoration's
not be considered. For example, in AIG Life Motion for Summary Judgment,
Insurance v. Federated Mutual Insurance Co., which was both a traditional and
200 S.W.3d 280, 283 (Tex. App.—Dallas 2006, no-evidence motion, contained
pet. denied) the court of appeals addressed testimony on which Restoration
whether a vague motion was a traditional motion relied.
or a no-evidence motion – or both. The court
stated: 231 S.W.3d 47, 52 (Tex. App.—Houston [14th
Dist.] 2007, no pet.).
The motions do not include a
standard of review and do not However, the Texas Supreme Court
clearly delineate whether they recently indicated that the enlarged scope of
are traditional motions for review may apply to no-evidence summary
summary judgment under Texas judgment proceedings. In Mack Trucks, Inc. v.
Rule of Civil Procedure 166a(c) Tamez, 206 S.W.3d 572 (Tex. 2006) the Court
or no-evidence motions for held that the plaintiff's expert testimony had
summary judgment under Texas been properly excluded, and therefore, a no-
Rule of Civil Procedure 166a(i). evidence motion for summary judgment was
Attached to each motion was a correctly granted on causation grounds. The
substantial amount of summary Court stated:
judgment evidence, indicating
the motions sought a traditional A summary judgment motion
summary judgment. See City of pursuant to Tex. R. Civ. P.
Keller v. Wilson, 168 S.W.3d 166a(i) is essentially a motion
802, 825, 48 Tex. Sup. Ct. J. for a pretrial directed verdict.
848 (Tex. 2005) (evidence Once such a motion is filed, the
supporting motion not allowed burden shifts to the nonmoving
under rule 166a(i)). party to present evidence raising
an issue of material fact as to
The court concluded that the motion solely the elements specified in the
sought traditional grounds. motion. We review the
evidence presented by the
motion and response in the light

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 18

 most favorable to the party movant and the evidence presented by the
against whom the summary respondent." Highland Crusader Offshore
judgment was rendered, Partners., L.P. v. Andrews & Kurth, L.L.P., 248
crediting evidence favorable to S.W.3d 887 (Tex. App.—Dallas 2008, no pet.
that party if reasonable jurors hist.). Therefore, that court is using the
could, and disregarding contrary expanded City of Keller standard with regards to
evidence unless reasonable a no-evidence motion review.
jurors could not.
Once again, in Mack Trucks, Inc. v.
Id. at 581-82. In a per curiam opinion, the Court Tamez, the Texas Supreme Court stated "We
has recently reaffirmed that: "An appellate court review the evidence presented by the motion and
reviewing a summary judgment must consider response in the light most favorable to the party
all the evidence…." Goodyear Tire & Rubber against whom the summary judgment was
Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) rendered, crediting evidence favorable to that
(emphasis added). In Goodyear, the Court party if reasonable jurors could, and
reversed a court of appeals that disregarded disregarding contrary evidence unless
uncontroverted evidence in reversing a reasonable jurors could not." 206 S.W.3d 572,
traditional and no-evidence motion for summary 582 (Tex. 2006). Therefore, it is clear under this
judgment. See id. standard that if the non-movant attaches
evidence that hurts its position to the point that a
Generally, courts of appeals have cited reasonable juror could not disregard it, a
to Mack Trucks and found that under the review reviewing court can use that evidence to show
of a no-evidence motion that the court of appeals that there is no evidence. The issue is whether
must review the evidence attached to the motion the reviewing court can also look to evidence
and response in the light most favorable to the filed by the movant and use the same standard.
non-movant. See, e.g., Anderson v. Limestone One commentator has noted that to enlarge the
County, No. 10-07-00174-CV, 2008 Tex. App. scope of review to include both the movant's
LEXIS 5041 (Tex. App.—Waco July 2, 2008, evidence and the nonmovant's evidence would
no pet. hist.); Acad. of Skills & Knowledge, Inc. be consistent with the practice in the federal
v. Charter Sch., USA, Inc., No. 12-07-00027- court system. See Tim Patton, Standard and
CV, 2008 Tex. App. LEXIS 4691 (Tex. App.— Scope of Review Spotlight: "No-Evidence"
Tyler June 25, 2008, no pet. hist.); Abendschein Summary Judgment, 17th Annual Conference on
v. GE Capital Mortg. Servs., No. 10-06-00247- State and Federal Appeals, University of Texas
CV, 2007 Tex. App. LEXIS 9761 (Tex. App.— School of Law, (June 1, 2007) (citing Celotex
Waco December 12, 2007, no pet.); Packwood Corp v. Catrett, 477 U.S. 317, 323 (1986);
v. Touchstone Cmtys, No. 06-07-00020-CV, BRUNER & REDISH, SUMMARY JUDGMENT:
2007 Tex. App. LEXIS 7935 (Tex. App.— FEDERAL LAW & PRACTICE, § 5:7 (3d ed.
Texarkana October 5, 2007, no pet.); State v. 2006)). The Texas Supreme Court has never
Beeson, 232 S.W.3d 265 (Tex. App.—Eastland really discussed this issue in depth.
2007, pet. abated); Paragon General Accordingly, the issue of whether a court may
Contractors, Inc. v. Larco Constr., Inc., 227 review evidence attached to a no-evidence
S.W.3d 876, 2007 Tex. App. LEXIS 4949 (Tex. motion in determining whether the non-movant's
App.—Dallas 2007, no pet.). These opinions, evidence raises a fact question for a reasonable
however, merely state the rule as described in juror is still unresolved.
Mack Trucks, and do not discuss the issue in any
depth.

One exception is the Dallas Court of

Appeals, which stated that with regards to a no-
evidence motion the "scope of our review
includes both the evidence presented by the

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 19

IV. STANDARDS OF APPELLATE judgment. Some appellate courts hold that a
REVIEW no-evidence motion should have a de novo
standard of review just like a traditional motion
A. Traditional Summary Judgment for summary judgment. See Joe v. Two Thirty
Nine J.V., 145 S.W.3d 150 (Tex. 2004);
Appellate review of a trial court's Simulis, L.L.C. v. GE Capital Corp., 2008 Tex.
summary judgment ruling is de novo. See App. LEXIS 2731 (Tex. App.—Houston [14th
Shivers v. Texaco Exploration & Prod., 965 Dist.] Apr. 17, 2008, no pet.); Baize v. Scott &
S.W.2d 727, 730 (Tex. App.—Texarkana 1998, White Clinic, No. 03-05-00780-CV, 2007 Tex.
pet. denied). The appellate court may look only App. LEXIS 366 (Tex. App.—Austin January
to evidence that was presented to the trial court. 22, 2007, pet. denied); Diaz v. Goodman Manf.
See H.S.M. Acquisitions, Inc. v. West, 917 Co., L.P., 214 S.W.3d 672 (Tex. App.—Houston
S.W.2d 872, 877-78 (Tex. App.—Corpus Christi [14th Dist.] 2007, pet. denied); In re Estate of
1996, writ denied); see also E.B. Smith Co. v. Wallace, No. 04-05-00567-CV, 2006 Tex. App.
United States Fidelity & Guar. Co., 850 S.W.2d LEXIS 10603 (Tex. App.—San Antonio
621, 624 (Tex. App.—Corpus Christi 1993, writ December 13, 2006, no pet.); Aiken v. Hancock,
denied); Totman v. Control Data Corp., 707 115 S.W.3d 26 (Tex. App.—San Antonio 2003,
S.W.2d 739, 742-43 (Tex. App.—Fort Worth pet. denied); Leonard v. Coastal States Crude
1986, no writ). The Totman court stated: Gathering Co., No. 04-02-00238, 2003 Tex.
App. LEXIS 4094 (Tex. App.—San Antonio
The question on appeal is not May 14, 2003, pet. denied); Jones v. City of
whether the summary judgment Hitchcock, No. 01-02-00676-CV, 2003 Tex.
proof presented raises material App. LEXIS 3353 (Tex. App.—Houston [1st
fact issues with regard to the Dist.] April 17, 2003, pet. denied); Kesyler v.
essential elements of a cause of Menil Med. Ctr. of E. Tex., 105 S.W.3d 122
action or defense, but whether (Tex. App.—Corpus Christi 2003, no pet.); Taub
the evidence presented to the v. Aquila Southwest Pipeline Corp., 93 S.W.3d
trial court establishes, as a 451 (Tex. App.—Houston [14th Dist.] October
matter of law, no genuine 17, 2002, no pet.); United Plaza-Midland v.
material fact issue exists as to Chase Bank of Tex. N.A., No. 14-01-0210-CV,
one or more of the essential 2002 Tex. App. LEXIS 6030 (Tex. App.—
elements of plaintiff's cause of Houston [14th Dist.] June 6, 2002, no pet.) (not
action. desig. for pub.); Delgado v. Jim Wells County,
82 S.W.3d 640 (Tex. App.—San Antonio 2002,
Id. at 742. The question on appeal, as well as in no pet.); Hight v. Dublin Veterinary Clinic, 22
the trial court, is whether the movant has S.W.3d 614 (Tex. App.—Eastland 2000, pet
established that there is no genuine issue of denied); Shull v. UPS, 4 S.W.3d 46 (Tex.
material fact and that the movant is entitled to App.—San Antonio 1999, pet. denied); see
judgment as a matter of law. See TEX. R. CIV. P. also, Sarah B. Duncan, No-Evidence Motion for
166a(c); see also Randall's Food Mkts., Inc. v. Summary Judgment: Harmonizing Rule 166a(i)
Johnson, 891 S.W.2d 640, 644 (Tex. 1995); and its Comments, 41 S. TEX. L. REV. 873, 907
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (2000).
(Tex. 1991); Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548 (Tex. Other courts, however, have determined
1985). that a no-evidence motion should have a legal
sufficiency standard of review — the same as
B. No-Evidence Summary Judgment the review over a directed verdict motion. See
King Ranch v. Chapman, 118 S.W.3d 742, 750
There has been some confusion and (Tex. 2003); Butler v. McDonald’s Corp., No.
disagreement about the appropriate standard of 11-05-00323-CV, 2007 Tex. App. LEXIS 64
review over a no-evidence motion for summary (Tex. App.—Eastland January 5, 2007, no pet.);

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 20

Ross v. Womack, No. 13-04-571-CV, 2006 Tex. review no-evidence motions "in the same
App. LEXIS 10656 (Tex. App.—Corpus Christi manner as any other 166a summary judgment is
December 14, 2006, no pet.); Entravision reviewed," as there is "no reason to engage in
Communs. Corp. v. Belalcazar, 99 S.W.3d 393 analogies [to directed verdict practice] when we
(Tex. App.—Corpus Christi 2003, pet. denied); already have in place a standard of review by
Diversified Fin. Sys. v. Hill, 99 S.W.3d 349 which to review most summary judgments."
(Tex. App.—Fort Worth 2003, no pet.); DRC Hight v. Dublin Veterinary Clinic, 22 S.W.3d at
Parts & Accessories, L.L.C v. VM Mortori, 614. The Authors agree that the standard of
S.P.A., No. 14-01-00507-CV, 2002 Tex. App. review over a no-evidence motion should be the
LEXIS 7431 (Tex. App.—Houston [14th Dist.] same as a traditional motion — de novo. The
October 17, 2002, no pet.); Trevino v. Goss, No. standard of review determines how much
03-01-0521-CV, 2002 Tex. App. LEXIS 4462 deference a court of appeals gives to the trial
(Tex. App.—Austin June 21, 2002, pet. denied) court's determination. In the no-evidence
(not desig. for pub.); Lattrell v. Chrysler Corp., summary judgment context, that deference is
79 S.W.3d 141 (Tex. App.—Texarkana 2002, zero — the court of appeals looks at the motion,
pet. denied); Morris v. JTM Materials, Inc., 78 response, and evidence as if it were the first
S.W.3d 28 (Tex. App.—Fort Worth 2002, no court reviewing them.
pet.); Two Thirty Nine Joint Venture v. Joe, 60
S.W.3d 896, 904 (Tex. App.—Dallas 2001, pet In exercising its de novo standard of
denied); Vargas v. KKB Inc., 52 S.W.3d 250, review, the court of appeals sits in the same
254 (Tex. App.—Corpus Christi 2001, pet position as the trial court and reviews the
denied); General Mills Rest., Inc. v. Texas evidence under a legal sufficiency standard.
Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. Accordingly, the distinction between standards
App.—Dallas 2000, no pet.); Gomez v. Tri-City is really without a difference because both
County Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. standards provide that a court should review the
App.—San Antonio 1999, no pet.); Zapata v. evidence in the light most favorable to the
Children's Clinic, 997 S.W.2d 745, 747 (Tex. non-movant and that the motion should be
App.—Corpus Christi 1999, pet. denied); Roth granted only if no more than a scintilla of
v. FFP Operating Partners, 994 S.W.2d 190, evidence is produced to support the claim or
195 (Tex. App.—Amarillo 1999, pet. denied); defense. See Ellis v. McKinney, No.
Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex. 01-00-0198, 2001 Tex. App. LEXIS 7715 n. 2
App. —Austin 1998, no pet.); see also Mack (Tex. App.—Houston [1st Dist.] November 15,
Trucks v. Tamez, 206 S.W.3d 572 (Tex. 2006). 2001, pet. denied) (not desig. for pub.). In the
Authors’ views, the courts that hold that the
One court has even held in the same standard of review is legal sufficiency are
case that the standard of review over a basically just skipping a step.
no-evidence motion is the same as a directed
verdict (legal insufficiency) and that the C. Standards of Review Over Adequate
standard is de novo. See Allen v. Albin, 97 Time For Discovery, Evidence
S.W.3d 655 (Tex. App.—Waco 2002, no pet.); Objections, And Motions For
Dodd v. City of Beverly Hills, 78 S.W.3d 509, Continuance
512 (Tex. App.—Waco 2002, pet. denied). And
at least one court has acknowledged the differing A trial court's determination on whether
standards of review between a traditional and a there has been an adequate time for discovery is
no-evidence motion. See Logsdon v. Miller, No. reviewed under an abuse of discretion standard
03-01-00575-CV, 2002 Tex. App.-LEXIS 2055 because that determination encompasses a
(Tex. App.—Austin March 21, 2002, pet. balancing and weighing of factors that is best
denied) (not desig. for pub.). left in the discretion of the trial court. See
McLendon v. Detoto, No. 14-06-00658-CV,
The courts that favor the de novo 2007 Tex. App. LEXIS 5173 (Tex. App.—
standard hold that the better approach is to Houston [14th Dist.] July 3, 2007, pet. denied);

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 21

First Select Corp. v. Grimes, No. 2-01-257-CV, court abused its discretion in
2003 Tex. App. LEXIS 604 (Tex. App. —Fort denying a motion for
Worth January 23, 2003, no pet.); Carter v. continuance seeking additional
MacFaddyen, 93 S.W.3d 307 (Tex. App. — time to conduct discovery: the
Houston [14th Dist.] August 8, 2002, pet. length of time the case has been
denied); Restaurant Teams International, Inc. v. on file, the materiality and
MG Securities Corp., 93 S.W.3d 336 (Tex. purpose of the discovery sought,
App.—Dallas June 18, 2002, no pet.); Dickson and whether the party seeking
Const. v. Fidelity & Deposit Co., 5 S.W.3d 353, the continuance has exercised
357 (Tex. App.-Texarkana 1999, pet. denied). due diligence to obtain the
discovery sought.
Trial court rulings concerning the
admission or exclusion of summary judgment 145 S.W.3d 150, 161 (Tex. 2004). A party
evidence are reviewed under an abuse of moving for a continuance from a summary
discretion standard. See Sanders v. Shelton, 970 judgment should keep this standard in mind.
S.W.2d 721 (Tex. App.—Austin 1998, writ
denied); Su Inn v. University of Texas at V. APPEAL OF DENIAL OF SUMMARY
Arlington, 984 S.W.2d 672 (Tex. App.— JUDGMENT MOTION
Amarillo 1998, writ denied); Lergva v. Soltero,
966 S.W.2d 765, 768 (Tex. App.—El Paso Generally, a party cannot appeal a trial
1998, no writ). Further, a trial court's ruling on court's denial of a summary judgment motion
a motion for continuance is reviewed under an because the order is interlocutory. See Novak v.
abuse of discretion standard. See State v. Crank, Stevens, 596 S.W.2d 848, 849 (Tex. 1980);
666 S.W.2d 91, 94 (Tex. 1984). In Joe v. Two Ackermann v. Vordenbaum, 403 S.W.2d 362,
Thirty Nine J.V., the Texas Supreme Court 365 (Tex. 1966); United Parcel Serv. Inc. v.
provided the appellate standard of review for an Tasdemiroglu, 25 S.W.3d 914 (Tex. App.—
order denying a motion for continuance from a Houston [14th Dist.] 2000, pet. denied);
summary judgment hearing: Amerivest, Inc. v. Bluebonnet Sav. Bank, 897
S.W.2d 513, 515 n.1 (Tex. App.—Fort Worth
The trial court may order a 1995, writ denied); Motor 9, Inc. v. World Tire
continuance of a summary Corp., 651 S.W.2d 296 (Tex. App.—Amarillo
judgment hearing if it appears 1983, writ ref'd n.r.e.). Additionally, the denial
"from the affidavits of a party of a motion for summary judgment does not
opposing the motion that he preserve any points raised in that motion, thus
cannot for reasons stated present the movant must re-urge those issues at a latter
by affidavit facts essential to point in the proceedings, i.e., objections to the
justify his opposition." When charge, motion for a directed verdict, or a
reviewing a trial court's order motion for judgment notwithstanding the
denying a motion for verdict. See Fling v. Steed, No. 07-99-0450-CV,
continuance, we consider 2001 Tex. App. LEXIS 1585 (Tex. App.—
whether the trial court Amarillo March 12, 2001, pet. denied) (not
committed a clear abuse of desig. for pub.); Hines v. Commission for
discretion on a case-by-case Lawyer Discipline, 28 S.W.3d 697, 700 (Tex.
basis. A trial court abuses its App.—Corpus Christi 2000, no pet.); United
discretion when it reaches a Parcel Serv. Inc. v. Tasdemiroglu, 25 S.W.3d
decision so arbitrary and 914 (Tex. App.—Houston [14th Dist.] 2000, pet.
unreasonable as to amount to a denied). See also, Ackermann v. Vordenbaum,
clear and prejudicial error of 403 S.W.2d 362, 365 (Tex. 1966); Motor 9,
law. We have considered the Inc., v. World Tire Corp., 651 S.W.2d 296, 299
following nonexclusive factors (Tex. App.—Amarillo 1983, writ ref'd n.r.e.).
when deciding whether a trial

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 22

 But if both parties file motions for Reed's Food Int'l, Inc., 887 S.W.2d 475, 476
summary judgment and the trial court grants one (Tex. App.—San Antonio 1994, no writ).
party's motion but denies the other's, the party
whose motion the court denied may appeal both The Texas Civil Practice and Remedies
the granting of his opponent's motion and the Code also allows for a permissive appeal in
denial of his motion. See Tobin v. Garcia, 159 Texas. See TEX. CIV. PRAC. & REM. CODE
Tex. 58, 316 S.W.2d 396, 400 (1958). See also ANN. §51.014(d). This device would allow a
Amerivest, Inc., 897 S.W.2d at 515 n.1. It is party to appeal a traditionally non-appealable
important to note in this circumstance that if the interlocutory ruling when it involves a
party whose summary judgment motion was controlling issue of law as to which there is a
denied appeals only the trial court's granting of substantial ground for difference of opinion and
his opponent's motion, the appellate court can when an immediate appeal may materially
only reverse the summary judgment and remand advance the ultimate termination of the
the case to the trial court. See City of Denison v. litigation. See id. If all conditions are met for
Odle, 808 S.W.2d 153, 156-57 (Tex. App.— its use, the permissive appeal is a method to
Dallas 1991), rev'd on other grounds, 833 appeal a denial of a motion for summary
S.W.2d 935 (Tex. 1992). If the appellant wants judgment or the granting of a partial motion.
the appellate court to reverse his opponent's
summary judgment and at the same time render Further, under those limited
and grant appellant's summary judgment, he circumstances when a party can appeal the
must appeal not only the trial court's granting of denial of a summary judgment, the standard of
the opponent's summary judgment, but also the review over a denial of a summary judgment is
denial of his summary judgment motion. See id. the same as the granting of a summary
See also Grainger v. Western Cas. Life Ins. Co., judgment. See HBO v. Harrison, 983 S.W.2d
930 S.W.2d 609, 614 (Tex. App.—Houston [1st 31, 35 (Tex. App.—Houston [14th Dist.] 1998,
Dist.] 1996, writ denied). no pet.).

Additionally, there are two special Even though an appellate court cannot
statutes that allow a party to appeal the denial of review the denial of a no-evidence motion for
a summary judgment motion. When a trial court summary judgment, it can order a trial court to
denies a summary judgment motion based on an rule on a properly filed motion. See In re
assertion of immunity by an officer or employee Mission Consolidated Indep. Sch. Dist., 990
of the state, the movant may immediately appeal S.W.2d 459, 461 (Tex. App.—Corpus Christi
that decision. See TEX. CIV. PRAC. & REM. 1999, orig. proceeding) (where motion had been
CODE ANN. § 51.014(5). When reviewing this filed for eight months with no response and trial
denial, an appellate court uses the same standard court refused to rule, the movant was entitled to
of review as it does for an order granting a a writ of mandamus ordering the trial court to
summary judgment motion. See Bartlett v. rule on the motion).
Cinemark USA, Inc., 908 S.W.2d 229, 233 (Tex.
App.—Dallas 1995, no writ). Also, if a trial Generally, the courts do not allow
court denies a summary judgment motion based mandamus relief to review the denial of a
on a claim against or defense by a member of summary judgment motion. See Tilton v.
the media, or a person whose communication the Marshall, 925 S.W.2d 672, 695 (Tex. 1996)
media published under the freedom of speech or (Enoch, J., concurring in part and dissenting in
free press guarantees, the movant may part). In Tilton v. Marshall, however, the Texas
immediately appeal that denial. See TEX. CIV. Supreme Court held that a mandamus was
PRAC. & REM. CODE ANN. § 51.014(6); see also appropriate to review the denial of a summary
Freedom Communications, Inc. v. Brand, 907 judgment under the specific facts of that case.
S.W.2d 614, 617 (Tex. App.—Corpus Christi Id. at 682. In Tilton, the plaintiffs, members of
1995, no writ); H&C Communications, Inc. v. Robert Tilton's church, sued Tilton on the basis
of fraud. Id. at 675-76. They claimed that

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 23

Tilton had fraudulently promised to pray for result of an accident or mistake, and (2) that
them, and that he made insincere religious allowing the late response will occasion no
representations. See id. at 676. The Texas undue delay or otherwise injure the party
Supreme Court held that the claim of insincere seeking summary judgment." Id. A court of
religious representations conflicted directly with appeals should affirm a default summary
Tilton's constitutional right of freedom of judgment if the party seeking to reverse it had
religion. See id. at 682. Therefore, the court notice of the hearing and did not file a motion
held that the trial court should have granted for continuance or a motion for leave to file a
Tilton's summary judgment motion due to the late response, or if the party does file such a
importance of his constitutional rights and the motion but does not prove up good cause as
lack of an adequate remedy by appeal, and then described above.
the court granted Tilton's motion for mandamus.
See id. This case seemingly stands for the Several courts of appeals have
proposition that when a trial court abuses its concluded after Carpenter, that Craddock
discretion in denying a summary judgment applies when a default summary judgment
motion, and a full trial on the merits would nonmovant does not receive notice until after the
violate a defendant's important constitutional summary judgment hearing. See Harden v. East
rights, an appellate court may issue a mandamus Tex. Med. Ctr. Health Care Assocs., No. 14-08-
directing the trial court to grant the defendant's 00627-CV, 2009 Tex. App. LEXIS 3409, at *4
summary judgment motion. (Tex. App.—Houston [14th Dist.] May 19,
2009, no pet.) (mem. op.) ("Craddock applies
VI. STANDARD FOR CHALLENGING A when a summary-judgment non-movant does not
DEFAULT SUMMARY JUDGMENT receive notice of the submission of the
summary-judgment motion until after the
There has been some debate about submission date."); Cantu v. Valley Baptist Med.
whether a court of appeals should use the Ctr., No. 13-02-00321-CV, 2003 Tex. App.
Craddock/equitable motion for new trial LEXIS 7379, at *3 n.2 (Tex. App.—Corpus
standard (not intentional, meritorious defense, Christi Aug. 28, 2003, no pet.) (mem. op.)
and delay not harmful) to review the denial of a (distinguishing Carpenter and applying
motion for new trial after a trial court grants a Craddock where defaulting party contended she
motion for summary judgment when the non- did not receive notice and learned of the hearing
movant failed to file a response – essentially a only after judgment was entered); Olien v.
default summary judgment. The Texas Supreme University of Tex. of the Permian Basin, No. 08-
Court has answered this question and 02-00300-CV, 2003 Tex. App. LEXIS 1549, at
determined that the Craddock/equitable motion *4 (Tex.App.—El Paso Feb. 20, 2003, no pet.)
for new trial standard does not apply "when the (mem. op.) (applying Craddock because fact
movant had an opportunity to seek continuance pattern of Carpenter "not the case" where
or obtain permission to file a late response." See defaulting party did not become aware of
Carpenter v. Cimarron Hydrocarbons Corp., 98 hearing until after summary judgment granted).
S.W.3d 682 (Tex. 2002). In other words, if a Cf. Stanley v. Citifinancial Mortg. Co.., 121
non-movant had an opportunity to file a motion S.W.3d 811, 815-16 (Tex. App.—Beaumont
for leave to file a late response and/or a motion 2003, pet. denied) (observing that decision in
for continuance, then the court of appeals should Carpenter "called into question" whether
not apply the Craddock/equitable motion for Craddock applies when defaulting summary
new trial standard. Interestingly, however, the judgment nonmovant did not discover its
Court found that a trial court should grant a mistake until after the hearing but deciding case
motion for leave to file a late response or a on other grounds).
motion for continuance when the non-movant
"establishes good cause by showing that the Several other courts have, instead, relied
failure to timely respond (1) was not intentional on language in Carpenter in determining
or the result of conscious indifference, but the whether the defaulting summary judgment

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 24

nonmovant met its burden in its motion for new reset date. See Birdwell v. Texins Credit Un.,
trial without deciding whether Craddock or 843 S.W.2d 246, 250 (Tex. App.—Texarkana
Carpenter governs. See Limestone Constr., Inc. 1992, no writ). The notice must include the fact
v. Summit Commercial Indus. Props., Inc., 143 that the hearing has been set, the date, and the
S.W.3d 538, 542 (Tex. App.—Austin 2004, no time for the hearing. See Mosser v. Plano Three
pet.); Kern v. Spencer, No. 02-06-00199-CV, Venture, 893 S.W.2d 8, 11 (Tex. App.—Dallas
2008 Tex. App. LEXIS 5582, at *12-13 (Tex. 1994, no writ). Furthermore, one court has held
App.—Fort Worth July 24, 2008, no pet.) (mem. that if the movant provides notice in a document
op.). other than the motion itself, that the notice has to
contain a certificate of service. See Tanksley v.
In subsequent cases, the Texas Supreme CitiCapital Commercial Corp., 145 S.W.3d 760,
Court has held in other contexts that Carpenter 763 (Tex. App.—Dallas 2004, pet. denied).
does not apply when the nonmovant was
unaware of its need to file a response or take The day of service is not included in the
other action but has not resolved the question of twenty-one day period, but the day of the
its application in the context of a default hearing is included. See Lewis v. Blake, 876
summary judgment. See Dolgencorp of Tex., S.W.2d 314, 315-16 (Tex. 1994); Lee v. Palo
Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) Pinto County, 966 S.W.2d 83 (Tex. App.—
(per curiam) (holding Carpenter does not apply Eastland 1998, pet. denied). Therefore, the
to post-answer default judgment against movant starts counting on the day after he files
defendant who was not aware of trial date); his no-evidence motion, and the hearing can be
Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) on the twenty-first day thereafter. Further, if
(declining to apply Carpenter to summary service is completed by mail pursuant to Texas
judgment nonmovant, acting pro se, who filed Rule of Civil Procedure 21a, the movant will
responses to requests for admission two days have to add three additional days to the twenty-
late and did not realize need to move to one day period, which makes it a twenty-four
withdraw deemed admissions but attended day period. See Id. at 315. Therefore, if the
summary judgment hearing). movant serves the motion by use of the mail, the
day after it is mailed is day one, and the hearing
VII. TIMING ISSUES REGARDING can be held on day twenty-four or later.
MOTION, RESPONSE, REPLY AND
HEARING The non-movant must file and serve the
response, accompanying evidence or special
Timing issues are very important to exceptions or objections to the movant's no-
consider in appealing a summary judgment. evidence motion not later than seven days before
Parties to a summary judgment are not entitled the hearing. See McConnell v. Southside Indep.
to a hearing. In re Am. Media Consol., 121 Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993);
S.W.3d 70, 74 (Tex. App.—San Antonio 2003, Crews v. Plainsman Trading Co., 827 S.W.2d
orig. proceeding). See also Martin v. Martin, 455 (Tex. App.—San Antonio 1992, writ
Martin & Richards, Inc., 989 S.W.2d 357, 359 denied). The non-movant can file the response
(Tex. 1998). If there is no hearing, then the non- on the seventh day before the hearing – there
movant must be given notice of a submission does not have to be seven full days. See Thomas
date. The summary judgment motion must be v. Medical Arts Hosp., 920 S.W.2d 815, 817-18
served on the opposing party at least twenty-one (Tex. App.—Texarkana 1996, writ denied);
days before the hearing if a hearing is granted. Wright v. Lewis, 777 S.W.2d 520, 521 (Tex.
See TEX. R. CIV. P. 166a(c). Similarly, the App.—Corpus Christi 1989, no writ); Benger
nonmovant must have twenty-one days notice of Builders, Inc. v. Business Credit Leasing, Inc.,
the hearing. See Lewis v. Blake, 876 S.W.2d 764 S.W.2d 336, 338 (Tex. App.—Houston [1st
314, 315-16 (Tex. 1994). However, if the Dist.] 1988, writ denied). Pursuant to Texas
hearing is reset, the non-movant is not entitled to Rule of Civil Procedure 5, the non-movant can
an additional twenty-one days notice before the also use the mail to file his response, and if he

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 25

does, it is considered timely filed on the day it is have the order granting or denying the no-
deposited in the mail so long as it reaches the evidence motion state that the trial court allowed
clerk no more than ten days after it is due. See leave to file the evidence. See Daniell v.
Geiselman v. Cramer Fin. Group, 965 S.W.2d Citizens Bank, 754 S.W.2d 407, 409 (Tex.
532 (Tex. App.—Houston [14th Dist.] 1997, no App.—Corpus Christi 1988, no writ).
writ); Clendennen v. Williams, 896 S.W.2d 257,
259 (Tex. App.—Texarkana 1995, no writ). If one of the parties desires to rely upon
However, the non-movant who uses the mail to the mail box rule, it should be very careful to
file and serve his response does not have to add make sure the record indicates how the it served
three days to the seven day period pursuant to and filed the motion or response, and when it did
Texas Rule of Civil Procedure 21a. See Lee v. so. For example, in Derouen v. Wal-Mart
Palo Pinto County, 966 S.W.2d 83 (Tex. App.— Stores, Inc., the record showed that the response
Eastland 1998, pet. denied); Holmes v. Ottawa was filed six days before the summary judgment
Truck, Inc., 960 S.W.2d 866, 869 (Tex. App.— hearing and there was no indication of any leave
El Paso 1997, pet. denied). In essence, the being granted for late filing. No. 06-06-00087-
timing sequence implemented by Rule 166a is CV, 2007 Tex. App. LEXIS 569 (Tex. App.—
designed to provide the non-movant with Texarkana January 26, 2007, no pet.). The court
fourteen days to review the summary judgment of appeals presumed that the non-movant filed
motion and to serve a response. See Wilhite v. the response late due to the file date stamp on
H.E. Butt Co., 812 S.W.2d 1, 3 (Tex. App.— the response and there being no other evidence
Corpus Christi 1991, no writ). in the record indicating otherwise. See id. The
court affirmed the summary judgment after not
If the non-movant has to file his finding any indication that the trial court granted
response late (within seven days of the hearing), the non-movant leave to late-file its response.
then he must get written permission from the See id. Accordingly, the authors suggest that
trial court or else the response will not be before parties to a summary judgment proceeding
the court. See INA of Texas v. Bryant, 686 include a "Certificate of Filing and Service" and
S.W.2d 614, 615 (Tex. 1985); Lazaro v. indicate in that certificate all facts necessary to
University of Tex. Health Science Ctr., 830 establish the applicability of the mail box rule
S.W.2d 330, 331-32 (Tex. App.—Houston [14th for the purposes of filing.
Dist.] 1992, writ denied). If the record does not
contain some indication that the trial court Lastly, the movant is entitled to file a
granted leave to file the late response, the reply to the non-movant's response. However,
appellate court will assume that it was not before Rule 166a does not set forth any time
the trial court, and the non-movant will waive all requirements for filing a movant's reply based
of his issues. See Goswami v. Metropolitan solely upon legal arguments. See TEX. R. CIV.
S.&L. Ass'n, 751 S.W.2d 487, 490 n.1 (Tex. P. 166A; Knapp v. Eppright, 783 S.W.2d 293,
1988); Waddy v. City of Houston, 834 S.W.2d 296 (Tex. App.—Houston [14th Dist. 1989, no
97, 101 (Tex. App.—Houston [1st Dist.] 1992, writ). The movant could file this reply the very
writ denied). Similarly, the non-movant must day of the hearing on his motion. See Knapp v.
get the court's leave to file evidence within Eppright, 783 S.W.2d at 296; Wright v. Lewis,
seven days of the hearing, and if no written 777 S.W.2d 520, 522 (Tex. App.—Corpus
order appears in the record, the late-filed Christi 1980, no writ). However, if the movant
evidence will not be considered as being before raises any special exceptions to the non-
the court. See Benchmark Bank v. Crowder, 919 movant's response, it must file and serve those
S.W.2d 657, 663 (Tex. 1996). The best practice special exceptions not less than three days
is for a non-movant to file a motion requesting before the hearing on his motion for summary
leave to file late-filed evidence with the judgment. See McConnell v. Southside Indep.
evidence itself. Further, the non-movant must Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.
be careful to have the trial court either sign a 1993).
separate order allowing the requested leave, or

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 26

 Some courts have extended this three days after the summary
day rule to objections to summary judgment judgment was signed, was
evidence. However, other courts have not done effective.
so. For example in Grotjohn Precise
Connexiones Int'l v. JEM Fin. Inc., the court Id. at 421. The court held that so long as the
held that objections made for the first time at a ruling was made within the trial court's plenary
hearing were timely and that the trial court erred period, the ruling was effective. Further, the
in striking those objections due to timeliness: court in Dolcefino v. Randolph, held that there is
"Because Grotjohn et al. filed their objections to a presumption that a trial court rules on timely
the affidavits before the trial court rendered the filed summary judgment objections before ruling
partial summary judgment, the objections were on the motion, and that a party only has to have
timely and the trial court erred in overruling these rulings expressed "near the time" that the
them on the basis that they were not timely." 12 trial court grants the motion or risk waiver. Id.
S.W.3d 859, 866 (Tex. App.—Texarkana 1999, at 925, 926 n. 15.
no pet.). See also Reynolds v. Murphy, 188
S.W.3d 252, 259 (Tex. App.—Fort Worth 2005, A court can grant a motion for summary
pet. denied). judgment after initially denying it without
allowing the non-movant the further opportunity
Courts have held that an order granting to argue or present evidence. The general rule is
summary judgment objections after the summary "[a] trial court may, in the exercise of discretion,
judgment order was signed did not preserve properly grant summary judgment after having
error. See Choctaw Props. L.L.C. v. Aledo Ind. previously denied summary judgment without a
Sch. Dist., 127 S.W.3d 235, 241 (Tex. App.— motion by or prior notice to the parties, as long
Waco 2003, no pet.). However, other courts as the court retains jurisdiction over the case."
have held that an order on objections can be H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d
signed after a summary judgment order is 872, 877 (Tex. App.—Corpus Christi 1996, writ
signed. See Crocker v. Paulyne's Nursing denied). See also Roberts v. E. Lawn Mem. Park
Home, Inc., 95 S.W.3d 416, 421 (Tex. App.— Cemetery, 2006 Tex. App. LEXIS 3183 (Tex.
Dallas 2002, no pet.). See also Dolcefino v. App.—Fort Worth Apr. 20, 2006, no pet.).
Randolph, 19 S.W.3d 906, 926 (Tex. App.— Citing this rule, one court stated: "a trial court's
Houston [14th Dist.] 2000, pet. denied). In action when it considers a party's motion to
Crocker v. Paulyne's Nursing Home, Inc., the reconsider the court's prior ruling on a motion
party appealing a summary judgment argued that for summary judgment is within the court's
the movant waived its evidence objections by discretion." Mendez v. San Benito/Cameron
failing to obtain a express ruling until eighty- County Drainage Dist. No. 3, 45 S.W.3d 746
nine days after the court granted the summary (Tex. App.—Corpus Christi 2001, no pet.)
judgment. 95 S.W.3d at 420-21. The court of (affirmed trial court's granting of second
appeals stated: summary judgment on reconsideration).

In doing so, appellants confuse For example, in Lindale Auto Supply v.

a party's duty to preserve error Ford Motor Co., the court of appeals affirmed a
with a trial court's authority to trial court that granted a partial summary
rule on objections. The issue in judgment (by a visiting judge), but then later
this case is not whether the (without notice) withdrew that order and entered
Rembrandt Center (which the same summary judgment (by the active
obtained a favorable ruling in judge). 1998 Tex. App. LEXIS 1564 (Tex.
the trial court) preserved its App.—Houston [14th Dist.] March 12, 1998, no
complaint for appellate review. pet.). The nonmovant complained that he did
Rather, the issue is whether the not have a chance to respond, and the COA
trial court's order, which was found that it was not entitled to new notice and
reduced to writing eighty-nine affirmed. See id. So, if a court denies summary

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 27

judgment, then later sua sponte grants it without objection to the non-movant's evidence, the
any notice, that is fine. movant must have obtained an express ruling on
his objections in a written order. See Utilities
Finally, after the hearing, trial courts are Pipeline Co. v. American Petrofina Mktg, 760
widely recognized to have "considerable S.W.2d 719, 723 (Tex. App.—Dallas 1988, no
discretion" in the time they take to issue a writ). Texas Rule of Appellate Procedure 33.1,
summary judgment decision. See Bayou City however, now provides that a separate, signed
Fish Co. v. S. Tex. Shrimp Processors, Inc., order is no longer required to preserve an issue
2007 Tex. App. LEXIS 9148 (Tex. App.— for appellate review. Accordingly, a signed
Corpus Christi Nov. 20, 2007, no pet. h.); Zalta order should no longer be required to preserve
v. Tennant, 789 S.W.2d 432, 433 (Tex. App.— an objection to a non movant's evidence when
Houston [1st Dist.] 1990, orig. proceeding) the trial court orally ruled on the objection and
(refusing to grant mandamus relief to relator the ruling appears in the record. See Allen v.
because the trial court's over one-year-long wait Albin, 97 S.W.3d 655 (Tex. App.—Waco 2002,
to decide on a motion for summary judgment no pet.); Columbia Rio Grande Regional Hosp.
was not an abuse of discretion). However, one v. Stover, 17 S.W.3d 387, 395 96 (Tex. App.—
court of appeals issued mandamus relief and Corpus Christi 2000, no pet.) (error is preserved
ordered a trial court to rule on a motion where a if the reporter's record of the summary judgment
no-evidence motion had been on file for eight hearing shows that the trial court announced an
months with no response and trial court refused oral ruling on the objection). Therefore, a party
to rule. See In re Mission Consolidated Indep. should request that the reporter's record be
Sch. Dist., 990 S.W.2d 459, 461 (Tex. App.— prepared and sent to the court of appeals if the
Corpus Christi 1999, orig. proceeding). trial court made oral rulings on objections to
summary judgment evidence that are in the
VIII. PRESERVATION OF ERROR party's favor. A careful practitioner, however,
should still have the trial court reduce all rulings
A party can win or lose an appeal on summary judgment evidence objections to
depending on whether an issue has been writing as some courts are still citing old
preserved for appellate review. Whether the authority and requiring written rulings. See
party is appealing an objection to summary Crocker v. Paulyne's Nursing Home, Inc., 95
judgment evidence, motion for continuance, or S.W.3d 416 (Tex. App.—Dallas 2002, no pet.).
motion for leave to file new evidence, the issue
must be preserved. Additionally, Rule 33.1(a) states that in
order to preserve a complaint for appellate
A. Preserving Error Regarding Objections review, the record must show that the trial court
to Summary Judgment Evidence either expressly or implicitly ruled on an
objection that was sufficiently specific to make
In Texas state court, the standard for the trial court aware of the complaint. See TEX.
admissibility of evidence in a summary R. APP. P. 33.1(a) (1)-(2). There has been great
judgment proceeding is the same as at trial. See debate in Texas' courts of appeals about whether
Lewis v. Nolan, No. 01-04-00865-CV, 2006 a court of appeals can imply a ruling on an
Tex. App. LEXIS 10668 (Tex. App.—Houston objection to summary judgment evidence due to
[1st Dist.] December 14, 2006, pet. denied); the trial court's granting of the motion. Some
Dupuy v. American Ecology Envtl. Servs. Corp., courts hold that under the facts of the case, an
No. 12-01-0160-CV, 2002 Tex. App. LEXIS implied ruling can exist in a summary judgment
3581 (Tex. App.—Tyler May 14, 2002, no pet.) context. See Praytor v. Ford Motor Co., No.
(not desig. for pub.); Bayless v. U.C. Rentals, 14-01-00734-CV, 2002 Tex. App. LEXIS 8013
Inc., 14-98-00337-CV, 1999 Tex. App. LEXIS (Tex. App.—Houston [14th Dist.] November 7,
3406 (Tex. App.—Houston [14th Dist.] May 5, 2002, no pet.) (not desig. for pub.) (holding that
1999, no pet.) (not desig. for pub.). Historically, movant/appellee is not required to preserve
in order to preserve error as to a movant's complaint as to non-movant/appellant's

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 28

summary judgment evidence where trial court Med. Ctr., 109 S.W.3d 838, 842-43 (Tex.
grants summary judgment motion); Trusty v. App.—Dallas 2003, no pet.); Sunshine Mining
Strayhorn, 87 S.W.3d 756 (Tex. App.— & Ref. Co. v. Ernst & Young, L.L.P., 114
Texarkana September 13, 2002, no pet.); S.W.3d 48 (Tex. App.—Eastland June 12, 2003,
Clement v. City of Plano, 26 S.W.3d 544, 550 no pet.); Wilson v. Thomason Funeral Home,
n.5 (Tex. App.—Dallas 2000, no pet.), Inc., No. 03-02-00774-CV, 2003 Tex. App.
disapproved on other grounds by Telthorster v. LEXIS 6358 (Tex. App.—Austin July 24, 2003,
Tennell, 92 S.W.3d 457 (Tex. 2002); Dagley v. no. pet.); Allen v. Albin, 97 S.W.3d 655 (Tex.
Haag Eng'g, 18 S.W.3d 787, 795 n.9 (Tex. App.—Waco 2002, no pet.); Jones v. Ray Ins.
App.—Houston 14th Dist.] 2000, no pet); Agency, 59 S.W.3d 739, 752-53 (Tex. App.—
Columbia Rio Grande Reg’l Hosp. v. Stover, 17 Corpus Christi 2001, pet. denied); Rogers v.
S.W.3d 387, 395-96 (Tex. App.—Corpus Christi Continental Airlines, Inc., 41 S.W.3d 196, 200
2000, no pet); Williams v. Bank One, 5 S.W.3d (Tex. App.—Houston [14th Dist.] 2001, no
119, 114-15 (Tex. App.—Waco 1999, no pet); pet.); Ball v. Youngblood, 2001 Tex. App.
Frazier v. Yu, 987 S.W.2d 607, 609-10 (Tex. LEXIS 5660 (Tex. App.—Dallas 2001, no pet.)
App.—Fort Worth 1999, no pet.); Blum v. (not desig. for pub.); Chapman Children's Trust
Julian, 977 S.W.2d 819, 823 (Tex. App.—Fort v. Porter & Hedges, L.L.P., 32 S.W.2d 429,
Worth 1998, no pet.). Under this standard, in 435-36 (Tex. App.—Houston [14th Dist.] 2000,
granting a summary judgment motion, a trial pet. denied); Well Solutions, Inc. v. Stafford, 32
court implicitly sustains the movant's objections S.W.3d 313, 316-17 (Tex. App.—San Antonio
to evidence that, if considered, would create a 2000, pet. denied); Hou-Tex., Inc. v. Landmark
fact issue and implicitly denies the non-movant's Graphics, 26 S.W.3d 103, 112 (Tex. App.—
objections to evidence that is necessary to Houston [14th Dist.] 2000, no pet.); Taylor
support the summary judgment. Either way, the Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484,
timely raised objections are simply preserved for 487 (Tex. App.—San Antonio 2000, pet.
appellate review. Otherwise, an appellate court denied). For example, the San Antonio Court of
infers that the trial court intentionally granted a Appeals disagreed with implicit rulings and
summary judgment motion when it knew the held:
"evidence" created a fact issue.
[R]ulings on a motion for
But most courts hold that a court of summary judgment and
appeals cannot imply a ruling. See Arellano v. objections to summary
Americanos USA, LLC, No. 08-08-00305-CV, judgment evidence are not
2010 Tex. App. LEXIS 9372 (Tex. App.—El alternative; nor are they
Paso November 29, 2010, no pet. history); concomitants. Neither implies a
Duncan-Hubert v. Mitchell, 310 S.W.3d 92 ruling-or any particular ruling-
(Tex. App.—Dallas 2010, pet. denied); Gellatly on the other. In short, a trial
v. Unifund CCR Partners, 2008 Tex. App. court's ruling on an objection to
LEXIS 5018 (Tex. App.—Houston [1st Dist.] summary judgment evidence is
July 3, 2008, no pet. hist.); Anderson v. not implicit in its ruling on the
Limestone County, 2008 Tex. App. LEXIS 5041 motion for summary judgment.
(Tex. App.—Waco July 2, 2008, no pet. hist.);
Delfino v. Perry Homes, 223 S.W.3d 32, 35 Well Solutions, Inc. v. Stafford, 32 S.W.3d at
(Tex. App.—Houston [1st Dist.] 2007, no pet.); 316-17.
Hixon v. Tyco Int’l, Ltd., No. 01-04-01109-CV,
2006 Tex. App. LEXIS 9494 (Tex. App.— In general, there is great confusion
October 31, 2006, no pet.); Strunk v. Belt Line regarding when objections to summary judgment
Road Realty Co., 225 S.W.3d 91, 99 (Tex. evidence are preserved. Many commentators
App.—El Paso 2005, no pet.); Palacio v. AON have noted the conflict among the courts of
Props., Inc. 110 S.W.3d 493, 496 (Tex. App.— appeals on this important issue. See, e.g., Judge
Waco 2003, no pet.); Mitchell v. Baylor Univ. David Hittner & Lynee Liberato, Summary

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 29

Judgments in Texas, 47 SOUTH TEXAS L. REV. Frazier to the facts of that case because the trial
409, 447-48 (2006) ("There is dispute among the court stated that it reviewed the "competent"
courts of appeals concerning what constitutes an evidence in the order, and held that when the
implicit holding, and even if an objection may record does not indicate that the trial court
be preserved under Texas Rule of Civil expressly ruled on the objections, they are
Procedure 33.1(a)(2)(a) by an implicit ruling."); waived. 73 S.W.3d 489, 498 (Tex. App.—Fort
Judge David Hittner & Lynee Liberato, Worth 2002, no pet.). Most recently, in Mead v.
Summary Judgments in Texas, 54 BAYLOR L. RLMC, Inc., the court completely retreated from
REV. 1, n. 194 (2006); Omar Kilany & Prescott Frazier, holding that even when the trial court's
Scot, Implied Rulings on Summary Judgment summary judgment order expressly states that it
Objections: Preservation of Error and Appellate considered the "competent" evidence, the
Rule 33.1(a)(2)(A), 15 APPELLATE ADVOCATE movant's objections are waived. 225 S.W.3d
ST. B.TEX. APPELLATE SEC. REP. 4 (2002) 710 (Tex. App.—Fort Worth 2007, pet. denied).
(published online at www.tex-app.org); David
F. Johnson, The No-Evidence Summary It is judicially inefficient for an
Judgment In Texas, 52 BAYLOR L. REV. 930, appellate court to reverse a trial court's summary
966 (2000); Charles Frazier, et. al., Recent judgment, which is otherwise correct, because
Development: Celotex Comes To Texas: No- the trial court failed to expressly rule on proper
Evidence Summary Judgments And Other Recent objections to otherwise incompetent evidence.
Developments In Summary Judgment Practice, A court of appeals should analyze whether the
32 TEX. TECH. L. REV. 111, 132 (2000). See objection was meritorious and whether the
also WILLIAM V. DORSANEO, TEXAS evidence should be considered.
LITIGATION GUIDE: APPELLATE REVIEW, §
145.03[2][a] (2007); MCDONALD & CARLSON, Notwithstanding, until the Texas
TEXAS CIVIL PRACTICE, § 18.20 (2nd Ed. Supp. Supreme Court clears this confusion, a cautious
2007); MICHOL O'CONNOR, O'CONNOR'S party will request express rulings, and submit
TEXAS RULES, CIVIL TRIAL, 499-500 (2007) proposed rulings on summary judgment
(five courts find that there can be implicit evidence in either a separate order or a the order
rulings, eight courts find that there cannot be granting a summary judgment. Further, if the
implicit rulings – some of the courts from both trial court still refuses to rule, the party should
groups are the same); Tim Patton, Selected object to the trial court’s failure to rule. See
Unsettled Aspects of Summary Judgment TEX. R. APP. P. 33.1(a)(2)(B); Allen v. Albin, 97
Practice and Procedure, 2-5, ADVANCED CIVIL S.W.3d 655 (Tex. App.—Waco 2002, no pet.).
TRIAL COURSE, (State Bar of Texas 2003).
B. Preserving Error Regarding Objections
Take the Fort Worth Court of Appeals To The Non-Disclosure of Experts
for an example. In Blum v. Julian, the court held
that when a trial court granted a motion for There was a split in the intermediate
summary judgment, an inference was created courts of appeals regarding whether an
that the trial court implicitly overruled the non- undesignated expert can provide evidence in a
movant's objections to the movant's evidence. summary judgment proceeding. Most of the
977 S.W.2d 819, 823 (Tex. App.—Fort Worth appellate courts addressing whether the
1998, no pet.). Similarly, in Frazier v. Yu, the discovery rules apply in a summary judgment
court held an order granting a summary case have applied the revised discovery rules to
judgment implicitly sustained the movant's summary judgments. See Thompson v. King,
objections to the non-movant's evidence. 987 No. 12-06-00059-CV, 2007 Tex. App. LEXIS
S.W.2d 607, 610-11 (Tex. App.—Fort Worth 2768 (Tex. App.—Tyler April 11, 2007, pet.
1999, no pet.). denied); F.W. Industries, Inc. v. McKeehan, 198
S.W.3d 217 (Tex. App.—Eastland 2005, no
But, later, the court reversed course. In pet.); Cunnigham v. Columbia/St. David's
Wrenn v. GATX Logistics, Inc., the court limited Healthcare System, L.P., 185 S.W.3d 7,10 (Tex.

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 30

App.—Austin 2005, no pet.); Villegas v. Texas Tex. App. LEXIS 4813 (Tex. App.—Houston
Dept. of Transp., 102 S.W.3d 26 (Tex. App.— [1st Dist.] June 5, 2003, no pet.); Sparks v.
San Antonio 2003, pet. denied); Ersek v. Davis Butler Mfg. Co., No. 05-99-00115-CV, 1999
& Davis, P.C., 69 S.W.3d 268, 273 (Tex. Tex. App. LEXIS 8731 (Tex. App.—Dallas
App.—Austin 2002, pet denied). November 22, 1999, no pet.) (not desig. for
pub.); Flores v. Snelling, No. 06-98-00046,
Other courts had found that the 1999 Tex. App. LEXIS 7009 (Tex. App.—
discovery rules do not apply to summary Texarkana September 14, 1999, no pet.) (not
judgment proceedings, and that a trial court desig. for pub.); Hopkins v. Keuhm, No. 03-98-
cannot strike an undesignated or 00514-CV, 1999 Tex. App. LEXIS 5923 (Tex.
underdesignated expert. See, e.g., Alaniz v. App.—Austin August 12, 1999, no pet.) (not
Hoyt, 105 S.W.3d 330, 340 (Tex. App.—Corpus desig. for pub.); Jamies v. Fiesta Mart, Inc., No.
Christi 2003, no pet.); Johnson v. Fuselier, 83 01-98-00754-CV, 1999 Tex. App. LEXIS 4553
S.W.3d 892, 897 (Tex. App.—Texarkana 2002, (Tex. App.—Houston [1st Dist.] June 17, 1999,
no pet.). no pet.) (not desig. for pub.); but see Kesyler v.
Menil Med. Ctr. of E. Tex., 105 S.W.3d 122 n.
In Chau v. Riddle, the court of appeals 10 (Tex. App.—Corpus Christi 2003, no pet.).
affirmed a trial court's striking of expert When the non-movant files a motion for
evidence. Chau v. Riddle, 2008 Tex. LEXIS continuance in order to collect more evidence,
453 (Tex. 2008). Even though the Texas the motion should meet the requirements for
Supreme Court reversed the court of appeals on Texas Rules of Civil Procedure 166a(g) and 252.
a different issue, it noted as follows: "In this See Tenneco, Inc. v. Enterprise Prods. Co., 925
Court, Chau challenges the court of appeals' S.W.2d 640, 647 (Tex. 1996). This can be done
holding that the trial court did not abuse its with an affidavit that is specific — general
discretion in enforcing a docket control order or allegations that the attorney has personal
in striking part of Chau's expert testimony. We matters, other cases or insufficient time is not
agree with the court of appeals' resolution of enough. See Cronin v. Nix, 611 S.W.2d 651,
those issues." Id. More recently, in Fort Brown 653 (Tex. App.—Houston [1st Dist.] 1980, writ
II Condominium Association v. Gillenwater, the ref'd n.r.e.). The affidavit should set out the
Court held that a trial court did not abuse its identity of the specific type of discovery or other
discretion in striking an expert where there was affidavit needed, the person from whom it is
no good cause shown for his untimely sought, and the information that will be
designation. 285 S.W.3d 879, 881-82 (Tex. obtained. See TEX. R. CIV. P. 252; Rocha v.
2009). Accordingly, if a party intends to rely on Faltys, 69 S.W.3d 315 (Tex. App-Austin July 7,
expert evidence in a summary judgment 2002, no. pet.); Gabaldon v. G.M. Corp., 876
proceeding, the party should fully designate the S.W.2d 367, 370 (Tex. App.—El Paso 1993, no
expert according to the Texas Rules of Civil writ).
Procedure and according to any scheduling
order. The non-movant will need to show in
detail how the needed discovery is material to
C. Preserving Error Regarding Adequate the challenged element. See TEX. R. CIV. P.
Time for Discovery 252; J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d
668, 676 (Tex. App.—Houston 1996, no writ).
Courts have placed a burden on the non- Further, the non-movant will need to show in
movant to file a verified motion for continuance detail how he has been diligent in attempting to
or affidavit proving up relevant facts in order to secure the needed evidence and why he has been
argue that there was not an adequate time for unable to secure the evidence in a timely
discovery — this is true even though a fashion. See TEX. R. CIV. P. 252; Gregg v.
presumption arose that there was not an Cecil, 844 S.W.2d 851, 853 (Tex. App.—
adequate time for discovery. See Collinsworth Beaumont 1992, no writ); Rhima v. White, 829
v. Eller Media Co., No. 01-01-0074 9-CV, 2003

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 31

S.W.2d 909, 912 (Tex. App.—Fort Worth 1992, (3) get the trial court’s ruling before the hearing
writ denied). on the no-evidence motion. See Anderson v.
T.U. Elec., No. 05-99-01255-CV, 2000 Tex.
The motion for continuance must have App. LEXIS 2878 (Tex. App.—Dallas May 3,
affidavits or sworn testimony to prove up all 2000, no pet.) (not desig. for pub.); Casey v.
factual allegations. See TEX. R. CIV. P. 166a(g); Interstate Building Maintenance, Inc., No. 03-
Casey v. Interstate Building Maintenance, Inc., 99-00524-CV, 2000 Tex. App. LEXIS 2555
No. 03-99-00524-CV, 2000 Tex. App. LEXIS (Tex. App.—Austin April 20, 2000, no pet.) (not
2555 (Tex. App.—Austin April 20, 2000, no desig. for pub.). But the non-movant can still
pet.) (not desig. for pub.); Crow v. Rockett file a motion for continuance because a trial
Special Util. Dist., 17 S.W.3d 320 (Tex. App.— court will not err in granting a properly filed,
Waco 2000, pet. denied). The safest practice is valid motion despite outstanding discovery
to request a hearing and present sworn proof as issues. The filing of a motion to compel can
to the need for a continuance following the also be a factor in a court of appeals
above listed requirements. See Roob v. Von determination of whether there was an adequate
Bergshasy, 866 S.W.2d 765, 766 (Tex. App.— time for discovery. See Hayes v. Woods, No.
Houston [1st Dist.] 1993, writ denied). 05-001121, 2001 Tex. App. LEXIS (Tex.
App.—Dallas June 29, 2001, no pet.) (not desig.
Lastly, courts have ruled differently on for pub.).
whether a non-movant has to get an express
ruling by the court on a motion in order to E. Preserve Complaint Regarding Notice of
preserve error. Compare Williams v. Bank One, Hearing
15 S.W.3d 110 (Tex. App.—Waco 1999, no
pet.) (Under new Texas Rule of Appellate If the movant did not provide the non-
Procedure 33.1, a non-movant does not have to movant with twenty-one days notice of the
have an express ruling on the trial court's denial hearing, the non-movant should file an objection
of his motion for continuance to preserve error, and a motion for continuance based on the
and the trial court's granting of the summary untimely notice. The non-movant will waive
judgment and holding of hearing is an implicit any objection to the faulty notice if he fails to
overruling of the non-movant's motion); and object to it in a timely fashion after he has
Casey v. Interstate Building Maintenance, Inc., knowledge of the improper notice. See Ajibaou
No. 03-99-00524-CV, 2000 Tex. App. LEXIS v. Edinburg Gen. Hosp., 22 S.W.3d 37 (Tex.
2555 (Tex. App.—Austin April 20, 2000, no App.—Corpus Christi 2000, pet. filed); Veal v.
pet.) (not desig. for pub.) (party must object to Veterans Life Ins. Co., 767 S.W.2d 892, 895
the court's failure to rule or waive error); (Tex. App.—Texarkana 1989, no writ). This
Washington v. Tyler ISD, 932 S.W.2d 686, 690 objection should be made before the hearing, but
(Tex. App.—Tyler 1996, no writ) (decided the latest the non-movant can raise it is in a
under the former Texas Rule of Appellate motion for new trial. See Nickerson v. E.I.L.
Procedure 52(g), which required an 'express' Instr., Inc., 817 S.W.2d 834, 835-36 (Tex.
ruling). However, the safest course is to always App.—Houston [1st Dist. 1991, no writ). All
get an express ruling or object to the court's that is required is that the non-movant formally
failure to rule. object and present proof that he did not receive
proper notice. See Guinn v. Zarsky, 893 S.W.2d
D. Preserve Complaint Regarding 13, 17 (Tex. App.—Corpus Christi 1994, no
Opponent's Failure to Produce Evidence writ). Once again, the safest practice is to
in Discovery request a hearing and present sworn proof as to
the lack of notice. See Roob v. Von Bergshasy,
If a non-movant needs discovery from 866 S.W.2d 765, 766 (Tex. App.—Houston [1st
the movant in order to respond to the movant's Dist.] 1993, writ denied).
motion for summary judgment, he should: (1)
file a motion to compel, (2) set a hearing, and

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 32

F. Preserving Right To Correct Defects In Food & Wine v. Starbuck Corp., No.
Evidence 05-01-00008-CV, 2002 Tex. App. LEXIS 7672
(Tex. App.—Dallas October 28, 2002, no pet.)
A trial court should give the non-movant (not desig. for pub.); Brown v. Wong, No. 05-
an opportunity to correct any defects that the 99-00706-CV, 2000 Tex. App. LEXIS 2632
movant has pointed out in the non-movant's (Tex. App.—Dallas April 24, 2000, pet. denied)
response or evidence. See Webster v. Allstate (not desig. for pub.). See also Eckmann v. Des
Ins. Co., 833 S.W.2d 747, 750 (Tex. App.— Rosiers, 940 S.W.2d 394, 400 (Tex. App.—
Houston [1st Dist.] 1992, no writ). "Defects in Austin 1997, no writ); Peerenboom v. HSP
the form of an affidavit must be objected to, and Foods, Inc., 910 S.W.2d 156, 160 (Tex. App.—
the opposing party must have the opportunity to Waco 1995, no writ); Webster v. Allstate Ins.
amend the affidavit." Brown v. Brown, 145 Co., 833 S.W.2d 747, 750 (Tex. App.—Houston
S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. [1st Dist.] 1992, no writ). If the non-movant
denied). As the Fort Worth Court of Appeals does not or cannot correct a defect in its
stated: evidence, then a court may strike the evidence
and grant the movant's motion by default. See
Rule 166a(f) indicates that a Sparks v. Butler Mfg. Co., No. 05-99-00115-CV,
party offering an affidavit that is 1999 Tex. App. LEXIS 8731 (Tex. App.—
defective in form, as pointed out Dallas November 22, 1999, no pet.) (not desig.
by the opposing party, should for pub.).
have the "opportunity" to
amend. A defect is substantive IX. SUMMARY JUDGMENT RECORD
if the summary judgment proof
is incompetent; it is formal if The record for a summary judgment
the summary judgment proof is appeal traditionally has only been the clerk's
competent, but inadmissible. record because there was no testimony at the
hearing and only written rulings would preserve
Tri-Steel Structures, Inc. v. Baptist Foundation, error. See TEX. R. CIV. P. 166a(c); McConnell
166 S.W.3d 443, 448 (Tex. App.—Fort Worth v. Southside ISD, 858 S.W.2d 337, 343 n.7 (Tex.
2005, pet. denied). 1993); Utilities Pipeline Co. v. American
Petrofina Mktg, 760 S.W.2d 719, 723 (Tex.
For example, in Keeton v. Carrasco, the App.—Dallas 1988, no writ) (only written
defendant objected to the summary judgment rulings preserved error). Accordingly,
use of an expert affidavit on the day of the historically, nothing in the reporter's record
summary judgment hearing. 53 S.W.3d 13, 22 could have an impact on the appeal.
(Tex. App.—San Antonio 2001, pet. denied). At
the summary judgment hearing, the plaintiffs However, that is currently not the case.
tendered an amended expert affidavit to the trial A signed order should no longer be required to
court, but the trial court denied them leave to file preserve an objection to evidence when the trial
the amended report. Id. The appellate court court orally ruled on the objection and the ruling
reversed, holding that the trial court should have appears in the record. See Allen v. Albin, 97
given the plaintiffs the opportunity to amend S.W.3d 655 (Tex. App.—Waco 2002, no pet.);
their expert's affidavit. Id. at 23. See also Aguilar v. LVDVD, L.C., 70 S.W.3d 915, 917
Garcia v. Willman, 4 S.W.3d 307, 311 (Tex. (Tex. App.—El Paso 2002, motion); Columbia
App.—Corpus Christi 1999, no pet.); Wyatt v. Rio Grande Regional Hosp. v. Stover, 17
McGregor, 855 S.W.2d 5 (Tex. App.—Corpus S.W.3d 387, 395 96 (Tex. App.—Corpus Christi
Christi 1993, writ denied). 2000, no pet.) (error is preserved if the reporter's
record of the summary judgment hearing shows
The non-movant will need to ask for a that the trial court announced an oral ruling on
continuance to get additional time to correct the objection). Therefore, a party should request
errors in his response or evidence. See Marty's that the reporter's record be prepared and sent to

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 33

the court of appeals if the trial court made oral A. Historically
rulings on objections to summary judgment
evidence that are in the party's favor. In the former rules of appellate
procedure, rule 50(d) stated: "The burden is on
Moreover, there may be other collateral the appellant, or other party seeking review, to
matters to the summary judgment proceeding see that a sufficient record is presented to show
that may require a reporter's record. For error requiring reversal." TEX. R. APP. P. 50(d)
example, if there is an objection to expert (Vernon 1996, repealed 1997). The party who
testimony, there may be live testimony and perfects an appeal has historically had the
evidence offered to support the expert: a burden to produce a complete record. See id.;
Daubert/Robinson hearing. Further, there may DeSantis v. Wackenhut Corp., 793 S.W.2d 670,
be live testimony offered to support a motion for 689 (Tex. 1990). Even when an appellant
continuance of the summary judgment hearing requested that items be included in the appellate
or motion for leave to file evidence late. record, "he still had the duty to be certain that all
Accordingly, if a collateral issue impacts a trial requested items are actually received by the
court's summary judgment order, the appellant appellate court." Worthy v. Collagen Corp., 921
should request the preparation of a reporter's S.W.2d 711, 717 (Tex. App.—Dallas 1995)
record. (Devany J., concurring), aff'd, 967 S.W.2d 360
(Tex. 1998). When the appellant failed to
X. ADVERSE EFFECTS FROM provide the appellate court with a complete
MOTIONS, RESPONSES, OR record, the appellate court presumed that any
EVIDENCE MISSING FROM THE missing material supported the trial court's
RECORD judgment. See DeSantis, 793 S.W.2d at 689.
Consequently, when the clerk's record did not
One problem that has plagued many contain an affidavit or deposition filed in support
summary judgment appellants is an adverse of a summary judgment motion, the appellate
presumption applied against them because of court would presume that the omitted documents
motions, responses, or evidence missing from supported the trial court's judgment. See Crown
the record. This presumption could act as a Life Ins. Co. v. Gonzalez, 820 S.W.2d 121, 122
waiver by the appellant of entire points of error (Tex. 1991); see also DeSantis, 793 S.W.2d at
or the appeal itself. Because oral testimony 689. If an appellant failed to include the
argument at a summary judgment hearing is not appellee's summary judgment motion in the
summary judgment evidence, the record on transcript, the motion was presumed to support
appeal consists solely of the papers on file with the trial court's judgment, and the appellate court
the trial court, called the clerk's record. See would overrule the appellant's points of error.
TEX. R. APP. P. 34.1; see El Paso Assocs., Ltd. v. See Atchison, 916 S.W.2d at 77. However,
J.R. Thurman & Co., 786 S.W.2d 17, 19 (Tex. because a non-movant was not required to
App.—El Paso 1990, no writ). An appellate respond to a summary judgment motion at all,
court cannot review any evidence or summary the appellant did not automatically waive the
judgment grounds not on file with the trial court appeal by failing to include a response to the
at the time of the summary judgment hearing. appellee's summary judgment motion. See
See Gandara v. Novasad, 752 S.W.2d 740, 743 Knapp v. Eppright, 783 S.W.2d 293, 295 (Tex.
(Tex. App.—Corpus Christi 1988, no writ). So, App.—Houston [14th Dist.] 1989, no writ). The
if a motion, response, or evidentiary document is only issue before the appellate court was
not on file at the time of the summary judgment whether the summary judgment motion is
hearing, an appellate court cannot consider that sufficient as a matter of law. However, if the
document in its determination of the appeal. summary judgment could only be supported by a
point of law, and not factually, the missing
depositions or affidavits, although presumed to
support the summary judgment, would not result
in the appellant waiving the appeal. See Gupta

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 34

v. Ritter Homes, Inc., 633 S.W.2d 626, 628 that the trial court clerk had the burden to
(Tex. App.—Houston [14th Dist.] 1982), aff'd in produce. It would be unfair and unjust to
part, rev'd in part on other grounds, 646 S.W.2d presume that a missing pleading or properly
168 (Tex. 1983). designated evidentiary document favors the trial
court's judgment when the burden to produce the
B. Currently pleading or document is on the trial court clerk
and not the appellant.
In September of 1997, the Texas Rules
of Appellate Procedure were amended. Current An interesting issue is presented when a
Rule 35.3(a) states: party appeals a trial court's ruling granting a
summary judgment and evidence from the
The trial court clerk is summary judgment motion or response or the
responsible for preparing, motion or response itself is missing. Does the
certifying, and timely filing the old presumption that the missing document
clerk's record if: favors the judgment still apply?

a notice of appeal has been This question should be answered by

filed; and determining who has the burden to produce the
document. The only provision that may impose
the party responsible for paying on the trial court clerk the responsibility to
for the preparation of the clerk's include a summary judgment motion, response,
record has paid the clerk's fee, or reply, if the appellant has not made a
has made satisfactory designation, is the provision that the trial court
arrangements with the clerk to clerk has the responsibility to include all
pay the fee, or is entitled to pleadings in the record on which the trial was
appeal without paying the fee. held. See TEX. R. APP. P. 34.5(a)(1). Pleadings
are alternating formulations of the parties'
TEX. R. APP. P. 35.3(a). Thus, an appellant is no contentions. The pleadings consist of the
longer obligated to make a specific request for original petition, the original answer, and each
the clerk's record to be filed in the appellate supplemental or amended petition or answer. A
court. See John Hill Cayce, Jr. et al., Civil motion is not a pleading. Therefore, Rule 34.5
Appeals in Texas: Practicing Under the New does not specifically list motions for summary
Rules of Appellate Procedure, 49 BAYLOR L. judgment or supporting evidence as required
REV. 867, 919-20 (1997). Under the new rule, if contents of the clerk's record. See TEX. R. APP.
the appellant files a notice of appeal and makes P. 34.5. If the appellant fails to request any
arrangements to pay the clerk's fee, the trial pertinent part of the summary judgment record,
court clerk has the responsibility to file the the court of appeals will presume that the
clerk's record with the appellate court. See id. at omitted portion supported the judgment and
928-29. Further, Rule 34.5(a) defines what must affirm. See Sparkman v. ReliaStar Life Ins. Co.,
appear in the clerk's record. TEX. R. APP. P. 2008 Tex. App. LEXIS 3517 (Tex. App.—
34.5(a). If a party's document does not fall into Corpus Christi May 15, 2008, no pet. hist.);
one of the categories that automatically will be Mallios v. Standard Ins. Co., 237 S.W.3d 778,
sent to the appellate court, then the party only 782 (Tex. App.—Houston [14th Dist.] 2007, pet.
has to designate the document in compliance denied).
with the new appellate rules, and the burden to
send the designated document is on the trial For example, in Enter. Leasing Co. of
court clerk. See TEX. R. APP. P. 34.5(b). Under Houston v. Barrios, the Texas Supreme Court
the new rule and new burden, appellate courts found that the appellant had the burden to
should no longer apply the presumption in favor designate summary judgment materials and
of the judgment because of evidence or applied the presumption for missing evidence:
documents missing from the appellate record

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 35

 Although Enterprise bears the appellate record, the appellant had a duty to
burden to prove its summary designate it. See id. Because the appellant did
judgment as a matter of law, on not designate the missing response, the appellate
appeal Barrios bears the burden court used the traditional presumption case law
to bring forward the record of to conclude that the missing summary judgment
the summary judgment evidence response would be presumed in favor of the trial
to provide appellate courts with court's judgment. See id. In doing so, the court
a basis to review his claim of stated that "we must review the summary
harmful error. DeSantis v. judgment as if appellant did not respond to the
Wackenhut Corp., 793 S.W.2d motion" and then proceeded to apply a legal
670, 689, 33 Tex. Sup. Ct. J. sufficiency review of the partial summary
517 (Tex. 1990); Escontrias v. judgment. Id. This case affirms that, although
Apodaca, 629 S.W.2d 697, 699, less likely, the traditional presumptions continue
25 Tex. Sup. Ct. J. 235 (Tex. to apply to missing evidence, motions, and
1982); cf. TEX. R. APP. P. responses in some cases. "This waiver
34.5(a) (only the items listed in presumption rule will still apply in certain
Rule 34.5(a) are included in the instances, but the new rules will make it much
appellate record absent a request less likely that parties will forfeit grounds of
from one of the parties). If the error due to the failure to file a complete
pertinent summary judgment record." Cayce, at 928.
evidence considered by the trial
court is not included in the The obvious remedy for missing
appellate record, an appellate motions, responses, and evidence is to
court must presume that the supplement the record and include the missing
omitted evidence supports the document. The new rule for supplementing the
trial court's judgment. record has greatly liberalized supplementation of
DeSantis, 793 S.W.2d at 689; the record. See id. at 935. Under the new rule,
see also Crown Life Ins. Co. v. any party may supplement the record at any
Gonzalez, 820 S.W.2d 121, 122 time, and the adverse presumptions that
(Tex. 1991). Therefore, we previously resulted from motions, responses and
presume that Barrios's answers evidence omitted from the record may now be
support the trial court's partial avoided simply by supplementing the record.
summary judgment in favor of See id. For an excellent discussion of the former
Enterprise. and current supplementation rules. See Cayce, at
934.
156 S.W.3d 547, 549-50 (Tex. 2004) (per
curiam). However, at least one court has not
taken such a liberal view of supplementation. In
Furthermore, in Pierson v. SMS Zoya Enters. v. Sampri Invests., L.L.C., the court
Financial II, L.L.C., the appellate court dealt of appeals refused to consider a supplemental
with an appeal from a partial summary judgment record filed after submission:
when the appellant's summary judgment
response was not in the appellate record. 959 This is not a case of a simple
S.W.2d 343, 348 (Tex. App.—Texarkana 1998, oversight of tangential or
no pet.). Further, the appellant did not designate insignificant information that
his response for inclusion in the clerk's record. could be easily overlooked.
See id. The appellate court concluded that, This is a case of continued
because a summary judgment response is not a neglect of information crucial to
pleading, and because there was no other a proper appellate review. This
category that would have placed a burden on the neglect continued for over
trial court clerk to include the response in the eleven months. The burden was

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 36

 on Zoya (1) to ensure that all the 1993); see also Weiner v. Wasson, 900 S.W.2d
documents it needed for this 316, 317 n.2 (Tex. 1995); Shivers v. Texaco
Court to fully review the Exploration & Prod., Inc., 965 S.W.2d 727, 732
correctness of the summary (Tex. App.—Texarkana 1998, pet. denied). If
judgment were in the record, the trial court simply grants one party's summary
and (2) to timely pay for the judgment motion but does not state any ground
supplemental record once it for doing so, then it is called a "general
realized necessary documents judgment." See, e.g., Sumerlin v. Houston Title
were excluded. Zoya did not Co., 808 S.W.2d 724, 726 (Tex. App.—Houston
carry its burden. [14th Dist.] 1991, writ denied).

As a result, we refuse to 2. A Party Should Look to the

consider the documents Actual Order Granting
contained in the post- Summary Judgment
submission supplemental
record. Instead, we will consider There are occasions when the trial court
Zoya's issues on the record that may inform the parties on what grounds it is
was before us on the submission granting a summary judgment, but the actual
day. order itself does not state the grounds. For
example, the trial court sometimes informs the
No. 14-04-01158-CV, 2006 Tex. App. LEXIS parties the grounds on which it is granting the
4406 (Tex. App.—Houston [14th Dist.] May 23, summary judgment after oral argument or in a
2006, no pet.) (internal citation omitted). letter sent to each party. See, e.g., Stevens v.
Moreover, although appellate courts strive to State Farm Fire & Cas. Co., 929 S.W.2d 665,
decide cases on the merits rather than on 669 (Tex. App.—Texarkana 1996, writ denied);
procedural technicalities, supplementing the Richardson v. Johnson & Higgins of Texas, Inc.,
record after a case is decided and reconsidering 905 S.W.2d 9, 11 (Tex. App.—Houston [1st
the prior decision does not serve judicial Dist.] 1995, writ denied); Martin v.
economy and does not violate this general Southwestern Elec. Power Co., 860 S.W.2d 197,
policy. See Worthy v. Collagen Corp., 967 199 (Tex. App.—Texarkana 1993, writ denied).
S.W.2d 360, 366 (Tex. 1998). See also Texas In these circumstances, where should the
First Nat'l Bank v. Ng, 167 S.W.3d 842, 866 appealing party look to determine if the
(Tex. App.—Houston [14th Dist.] 2005, pet. judgment is specific or general? Texas
granted, judgm't vacated w.r.m.) (refusing to precedent requires that a party look only to the
consider supplemental record filed more than a judgment to determine the grounds, if any,
month after court's opinion and judgment). identified by the court as the basis of its
judgment. See Hailey v. KTBS, Inc., 935 S.W.2d
XI. ADVERSE EFFECTS DUE TO 857, 859 (Tex. App.—Texarkana 1996, no writ);
APPELLATE BRIEFING see also Stevens, 929 S.W.2d at 669; Shannon v.
INADEQUACIES Texas Gen. Indem. Co., 889 S.W.2d 662, 664
(Tex. App.—Houston [14th Dist.] 1994, no
A. Specific Judgments Versus General writ); Martin, 860 S.W.2d at 199; Taylor v.
Judgments Taylor, 747 S.W.2d 940, 944 (Tex. App.—
Amarillo 1988, writ denied); Frank v.
1. General Definitions Kuhnreich, 546 S.W.2d 844, 847 (Tex. Civ.
App.—San Antonio 1977, writ ref'd n.r.e.);
If the order granting a summary Brazos River Auth. v. Gilliam, 429 S.W.2d 949,
judgment motion states the reasons why the trial 951 (Tex. Civ. App.—Fort Worth 1968, writ
court granted the summary judgment, it is a ref'd n.r.e.). "It is the court's order that counts,
"specific judgment." See State Farm Fire & not the stated reason or oral qualifications."
Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. Richardson, 905 S.W.2d at 11. Even if the trial

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 37

court sends a letter detailing the grounds on S.W.2d 563, 564 (Tex. 1983); Smith v. Atlantic
which the summary judgment was granted with Richfield Co., 927 S.W.2d 85, 88 (Tex. App.—
the notice of judgment to each party, the letter is Houston [1st Dist.] 1996, writ denied). A
not a part of the judgment and cannot make a summary judgment motion must "stand or fall
general judgment a specific one. See Shannon, on the grounds specifically set forth in the
889 S.W.2d at 664. This rule can be harsh, but it motion(s)." Ortiz v. Spann, 671 S.W.2d 909,
has the prophylactic effect of ensuring that the 914 (Tex. App.—Corpus Christi 1984, writ ref'd
plain meaning of a court's formal order or n.r.e.). But this requirement can be waived. See
judgment is not disputed. See Richardson, 905 Toonen, 935 S.W.2d at 942. The appellant will
S.W.2d at 12. waive his objection if he fails to bring forward a
point of error in his appellate brief complaining
B. Specific Judgments of the trial court's error or arguing that excess
relief was improperly granted. See id.; see also
1. If The Trial Court Grants The Gilchrist v. Bandera Elec. Coop., Inc., 924
Summary Judgment Motion On S.W.2d 388, 389 (Tex. App.—San Antonio
A Ground That Is Not In The 1996), rev'd on other grounds, 946 S.W.2d 336
Motion, The Appellant Should (Tex. 1997); Yiamouyiannis v. Thompson, 764
Object To The Trial Court S.W.2d 338, 342 (Tex. App.—San Antonio
Doing So. 1988, writ denied). Thus, if an appellant wants
to complain that the trial court granted a
Texas Rule of Civil Procedure 166a summary judgment on a ground that was not
does not permit a trial court to grant a summary presented in the motion for summary judgment,
judgment based on a ground that was not the appellant should raise this complaint to the
presented to it in writing. See Cincinnati Life appellate court in the brief by a point of error
Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. and argument with citation to authority.
1996); see also Toonen v. United Servs. Auto.
Ass'n, 935 S.W.2d 937, 942 (Tex. App.-San 2. Appellate Courts May Affirm
Antonio 1996, no writ). Indeed, the rule On Any Ground In Motion
provides:
If the appellate court concludes that the
The motion for summary trial court erred in granting summary judgment
judgment shall state the specific on one ground, may it look to other grounds to
grounds therefor. . . The affirm the judgment even though the trial court
judgment sought shall be may not have considered them? In State Farm
rendered forthwith if . . . there is Fire & Casualty Co. v. S.S., the Texas Supreme
no genuine issue as to any Court addressed this issue in a plurality opinion.
material fact and the moving 858 S.W.2d 374 (Tex. 1993). The trial court
party is entitled to judgment as a granted summary judgment for the defendant
matter of law on the issues insurance company on the specific basis that, as
expressly set out in the motion a matter of law, the homeowner's policy
or in an answer or any other provided no coverage for any of the plaintiff's
response. claims. See id. at 376. The plaintiff appealed,
and the appellate court held that the trial court
TEX. R. CIV. P. 166a(c). erred in granting the motion for summary
judgment on the "no coverage" ground. See id.
The Texas Supreme Court has expressly The defendant appealed to the supreme court
stated that a trial court may not grant a summary and argued that the court of appeals erred in
judgment on a cause of action not addressed in a failing to affirm the summary judgment on a
summary judgment proceeding. See Mafrige v. different and independent ground that was raised
Ross, 866 S.W.2d 590, 591 (Tex. 1993). See in the summary judgment motion. See id. at
also Chessher v. Southwestern Bell Tel. Co., 658 380. The supreme court held that when a trial

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 38

court's order expressly specifies the ground B, but expressly denied grounds C and D. See
relied on for the summary judgment, the id. The court of appeals held that the trial court
judgment can be affirmed only "if the theory erred in granting the summary judgment on
relied on by the trial court is meritorious, grounds A and B, but refused to consider
otherwise the case must be remanded." Id. at grounds C and D and remanded the case to the
380-81. The court based this result on two trial court for further disposition. See id. In
policy considerations. First, if appellate courts overruling State Farm, the Texas Supreme Court
could affirm a summary judgment on grounds held that appellate courts should consider all of
that were not relied on by the trial court, the the summary judgment grounds that the appellee
appellant would be required on appeal to preserves for appellate review and that are
challenge every ground raised in the motion for necessary for final disposition of the appeal,
summary judgment, even though many of the whether or not the trial court actually ruled on
grounds were not considered or ruled on by the those grounds. See id. at 627. See also Baker
trial court. See State Farm, 858 S.W.2d at 381. Hughes, Inc. v. Keco R. & D. Inc., 12 S.W.3d 1,
Second, if an appellate court was to consider 5-6 (Tex. 1999); Romo v. Texas Department of
grounds that were never considered by the trial Transportation, 48 S.W.3d 265, 269 (Tex.
court, the appellate court would usurp the trial App.—San Antonio 2001, no pet.).
court's authority to consider and rule on all
issues before it. See id. at 381-82. The court The Supreme Court has recently stated
stated: the rule as follows: "In reviewing a summary
judgment, we consider all grounds presented to
Such a practice results in the trial court and preserved on appeal in the
appellate courts rendering interest of judicial economy." Diversicare Gen.
decisions on issues not Partner, Inc. v. Rubio, 185 S.W.3d 842, 846
considered by the trial court and (Tex. 2005). Notably, the Court did not
voiding the trial court's decision articulate any different rule depending on the
without allowing it to first type of summary judgment order being
consider the alternate grounds. appealed. In fact, in the appeal of a summary
Usurping the trial court's judgment, the appellate court may even review
authority does not promote grounds in earlier summary judgment motions
judicial economy, but instead that the trial court denied or did not rule on.
serves as an encouragement for Baker Hughes, Inc. v. Keco R.& D., 12 S.W.3d
summary judgment movants to 1, 5 (Tex. 1999). In Baker Hughes, Inc. the
obtain a specific ruling from the Court stated:
trial judge on a single issue and
then try again with other The court of appeals refused to
alternate theories at the court of consider whether Baker
appeals, then assert the same or Hughes's second motion for
additional alternate theories summary judgment should have
before this Court. been granted, citing the general
rule that a denial of summary
Id. judgment is interlocutory and
not appealable. But as we
This issue, however, was not recognized in Cincinnati Life
conclusively settled until three years later in Insurance Co. v. Cates, the rule
Cincinnati Life Insurance Co. v. Cates. 927 does not apply when a movant
S.W.2d 623, 624 (Tex. 1996). In Cincinnati Life seeks summary judgment on
Insurance, the defendant insurance company multiple grounds and the trial
filed a motion for summary judgment alleging court grants the motion on one
grounds A, B, C, and D. See id. The trial court or more grounds but denies it, or
expressly granted the motion on grounds A and fails to rule, on one or more

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 39

 other grounds presented in the the grounds to the appellate court in support of
motion and urged on appeal. In the trial court's granting of the summary
Cates we held that the appellate judgment, an appellate court could affirm a
court must review all of the summary judgment on a ground raised by the
summary judgment grounds on summary judgment motion but not considered
which the trial court actually by the trial court. This requirement serves as a
ruled, whether granted or form of notice to the appellant so that he will
denied, and which are know which grounds he should brief to the
dispositive of the appeal, and appellate court. Of course, the appellant may
may consider any grounds on need to file a reply brief to confront any grounds
which the trial court did not that the trial court did not consider but which
rule. were reasserted by the appellee in his appellate
brief.
Id. (internal citations omitted).
Several courts of appeals have
Finally, it should be noted that when a interpreted Cincinnati Life Insurance loosely
trial court grants a summary judgment on a and arguably have eliminated the requirement
specific ground, a court of appeals should that the appellee preserve and raise the unruled
review other alternative grounds for affirmance upon ground for appellate review. The
where they are preserved for review: "To Fourteenth Court of Appeals has held that "a
preserve these grounds, the party must raise summary judgment may be affirmed on any
them in the summary judgment proceeding and ground asserted in the motion that has merit."
present them in an issue or cross-point on City of Houston Fire Fighters v. Morris, 949
appeal." Westchester Fire Ins. Co. v. Admiral S.W.2d 474, 476 (Tex. App.—Houston [14th
Ins. Co., 152 S.W.3d 172, 178 (Tex. App.—Fort Dist.] 1997, pet. denied). The Tyler court has
Worth 2004, no pet.). Two courts of appeals stated:
have dealt with whether an appellee preserved
the ground for appellate review. In Valores The Supreme Court has held
Corporativos, S.A. de C.V. v. McLane Co., Inc., that appellate courts, in the
the court noted that "courts of appeals should interest of judicial economy,
consider not only all those grounds the trial may consider other grounds that
court rules on but also those grounds the trial the movant has reserved for
court did not rule on but that are preserved for review and the trial court did
appellate review." 945 S.W.2d 160, 161 n.3 not rule on. We must be
(Tex. App.—San Antonio 1997, writ denied) mindful, however, that a
(citing Cincinnati Life Ins., 927 S.W.2d at 625- summary judgment cannot be
26). The court found, however, that the appellee affirmed on any grounds not
failed to preserve any of the unruled upon presented in the motion for
grounds for appellate review by not seeking to summary judgment.
affirm the summary judgment on those grounds
in his brief. See id. In Bennett v. Computer Robertson v. Church of God, Int'l, No. 12-96-
Associates International, Inc., the court held that 00083-CV, 1997 WL 555626, at *4 (Tex.
the appellee had preserved for appeal a ground App.-Tyler Aug. 29, 1997, pet. denied) (not
that was asserted in his summary judgment released for publication) (citation omitted). The
motion but was not considered by the trial court. Tyler court mentioned that the ground must be
932 S.W.2d 197, 205 (Tex. App.—Amarillo preserved, but seemed to suggest that the
1996, writ denied). The appellee preserved error appellee does so by solely raising the ground in
by developing the ground in its appellate brief his summary judgment motion. See id. Further,
after a general assertion that the trial court did the Tyler court did not discuss whether the
not err in granting the summary judgment. See appellee reargued the alternative ground in its
id. Without requiring the appellee to reargue all appellate brief. See id. These interpretations

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 40

omit the important requirement that the appellee Id. This single point of error allows the party to
must preserve the ground for appellate argument challenge all of the grounds stated in the
by raising the ground in an appellate brief, summary judgment motion. See id. The court
thereby allowing appellate courts to review sua also stated, however, that it is possible to
sponte the motion for summary judgment and challenge the summary judgment by separate,
affirm on any ground that was meritorious. specific points of error. See id. An example of a
Therefore, a party defending a specific summary specific point of error is "The Trial Court Erred
judgment on appeal should argue both the In Granting The Summary Judgment Because
grounds on which the trial court based its The Movant Failed To Establish That There Is
judgment, and all other grounds that were No Genuine Issue Of Material Fact As To When
included in the summary judgment motion. This The Non-Movant Discovered His Injury So As
action will afford the best chance of the specific To Toll The Statute Of Limitations."
summary judgment being affirmed on appeal.
2. Specific Points of Error
Likewise, the safest procedure for the
party appealing the summary judgment is to Where an appellant uses specific points
brief every ground that was raised in the motion of error to attack a general summary judgment
for summary judgment. This will provide the and fails to attack one of the possible grounds on
appellate court with both sides of the argument which the judgment was granted, the appellate
on any possible ground that the court could use court should affirm the judgment because the
to affirm and will reduce the chances that the appellant has waived the error. See id.. One
summary judgment will be affirmed. court stated this waiver principle:

C. General Judgments The movant requesting

judgment is free to assert as
When the trial court grants a general many grounds therefor as he
summary judgment and does not specify the chooses. Should he raise several
ground on which it granted the judgment, the and the court fail to state on
appellant must argue that every ground of the which it relied in granting relief,
summary judgment motion is erroneous. See an additional obstacle confronts
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d the non-movant. It falls on the
623, 625 (Tex. 1996). Further, the appellate latter, on appeal, to address each
court must affirm the summary judgment if any ground asserted and establish
one of the movant's theories has merit. See why it was deficient to support
Western Invs., Inc. v. Urena, 162 S.W.3d 547 judgment. Failing to do this
(Tex. 2005); Dow Chem. Co. v. Francis, 46 entitles the reviewing court to
S.W.3d 237 (Tex. 2001); Cincinnati Life Ins. affirm on any unaddressed
Co. v. Cates, 927 S.W.2d 623, 624 (Tex. 1996). ground.

1. Specific Points of Error Versus Miller v. Galveston/Houston Diocese, 911

General Points of Error S.W.2d 897, 899 (Tex. App.—Amarillo 1995,
no writ) (citation omitted).
A party may use either specific points of
error/issues or general points of error/issues to The rationale for waiver in this instance
attack a summary judgment. See Malooly Bros., is that the summary judgment may have been
Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. based on a ground that was available to the trial
1970). In Malooly Brothers, Inc. v. Napier, the court, it was not specifically challenged by the
Texas Supreme Court asserted that the best appellant, and there was no general assignment
approach on appeal is to write a general point of that the trial court erred in granting the summary
error that states, "The Trial Court Erred In judgment. See Malooly Bros., 461 S.W.2d at
Granting The Motion For Summary Judgment." 121; Lewis, 944 S.W.2d at 3.

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 41

 Thus, if the party challenging the 3. General Points of Error
summary judgment uses specific points of error,
he should be careful to include every possible "A general point of error stating that the
ground raised by the summary judgment motion. trial court erred in granting the motion for
The following are further examples of an summary judgment will allow the non-movant to
appellant waiving his appeal because he failed to dispute on appeal all possible grounds for the
assign a specific point of error to a ground raised judgment." Shivers v. Texaco Exploration &
in the summary judgment motion: Clark v. Prod., Inc., 965 S.W.2d 727, 732 (Tex. App.—
Compass Bank, 2008 Tex. App. LEXIS 3783 Texarkana 1998, pet. denied). See also
(Tex. App.—Fort Worth May 22, 2008, no pet. Plexchem Int'l, Inc. v. Harris County Appraisal
hist.); Pena v. Je Matadi Dress Co., 2008 Tex. Dist., 922 S.W.2d 930, 930-31 (Tex. 1996);
App. LEXIS 678 (Tex. App.—Houston [1st Malooly Bros., Inc. v. Napier, 461 S.W.2d 119,
Dist.] Jan. 31, 2008, no pet.); Fluid Concepts, 121 (Tex. 1970); Gilbert v. Gilvin-Terrill, Ltd.,
Inc. v. DA Apartments Ltd. P'ship, 159 S.W.3d 2008 Tex. App. LEXIS 4348 (Tex. App.—
226, 231 (Tex. App.—Dallas 2005, no pet.); Amarillo June 12, 2008, no pet. hist.). Thus, an
Evans v. First Nat'l Bank, 946 S.W.2d 367, 377 appellant may challenge "not only arguments
(Tex. App.—Houston [14th Dist.] 1997, writ focusing on whether a genuine issue of material
denied); Dubow v. Dragon, 746 S.W.2d 857, fact was raised by the summary judgment
859 (Tex. App.—Dallas 1988, no writ); King v. evidence, but also is allowed to contest
Texas Employers' Ins. Ass'n., 716 S.W.2d 181, non-evidentiary issues such as the legal
182-83 (Tex. App.—Fort Worth 1986, no writ); interpretation of a statute." Moore v. Shoreline
Langston v. Eagle Publ'g Co., 719 S.W.2d 612, Ventures, Inc., 903 S.W.2d 900, 902 (Tex.
615 (Tex. App.—Waco 1986, writ ref'd n.r.e.); App.—Beaumont 1995, no writ). See also
Rodriguez v. Morgan, 584 S.W.2d 558, 559 Shivers, 965 S.W.2d at 732; Cassingham v.
(Tex. Civ. App.—Austin 1979, writ ref'd n.r.e.). Lutheran Sunburst Health Serv., 748 S.W.2d
It is important that the rules discussed here are 589, 590 (Tex. App.—San Antonio 1988, no
general and only apply when a defendant attacks writ).
a judgment for a plaintiff who asserts a single
cause of action. See Fetty v. Miller, 905 S.W.2d In Speck v. First Evangelical Lutheran
296, 299 (Tex. App.—San Antonio 1995, writ Church of Houston, the appellant raised one
denied). general issue: "The Trial Court Erred In
Granting Appellees' Motion For Summary
Further, this discussion must be put in Judgment, As There Existed Evidence In The
the context of the briefing rules of the 1997 Court's File Supporting Appellant's Case." 235
version of the Texas Rules of Appellate S.W.3d 811 (Tex. App. Houston 1st Dist. 2007,
Procedure. Those rules provide that an no pet.). The court of appeals construed this
appellant's brief "must state concisely all issues issue broadly and found it was sufficient to
or points presented for review," and the challenge the trial court awarding relief that was
"statement of an issue or point will be treated as not requested:
covering every subsidiary question that is fairly
included." TEX. R. APP. P. 38.1(e). Courts of We hold that when a trial court
appeals normally liberally construe "points of grants summary judgment on a
error in order to obtain a just, fair and equitable ground not contained in the
adjudication of the rights of the litigants." motion for summary judgment,
Sterner v. Marathon Oil Co., 767 S.W.2d 686, an assertion on appeal that fact
690 (Tex. 1989). See also TEX. R. APP. P. 38.9; issues remain on that ground is
Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d sufficient under the Texas Rules
52, 54 (Tex. 1998) ("Courts should liberally of Appellate Procedure to raise
construe briefing rules."); Anderson v. Gilbert, a challenge to the excess relief--
897 S.W.2d 783, 784 (Tex. 1995) ("Courts are to without any request for
construe rules on briefing liberally."). summary judgment on a claim,

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 42

 nothing exists in the trial court appeals in a brief. 711 S.W.2d 7, 8-9 (Tex.
record to controvert an 1986); see also San Jacinto River Auth., 783
appellant's contention on appeal S.W.2d at 210.
that facts exist to support it.
In Morriss v. Enron Oil & Gas Co., the
Id. at 819. defendant based its motion for summary
judgment on the failure of one of the elements of
In Plexchem International Inc. v. Harris the plaintiff's contract claim and on the
County Appraisal District, the Texas Supreme affirmative defense of the statute of limitations.
Court noted that the appellant used a general 948 S.W.2d 858, 863 (Tex. App.—San Antonio
point of error and presented three pages of 1997, no writ). In his summary judgment
argument and authority to support the allegedly response, the plaintiff only argued that the
waived ground, thus he preserved error as to that statute of limitations was tolled by the discovery
ground. 922 S.W.2d at 931; Shivers, 965 rule. See id. at 871. The trial court signed an
S.W.2d at 733 (holding that the appellant did not order granting the defendant's motion for
waive his appeal when he used a general point of summary judgment but failed to assign any
error and presented four pages of argument on particular basis for so doing. See id. On appeal,
the allegedly waived ground). Certainly, when the plaintiff used a general point of error and
an appellant uses a general point of error and alleged that the trial court erred in granting the
briefs every ground raised in the summary summary judgment but only briefed and argued
judgment motion, there is no waiver. that the statute of limitations was tolled by the
discovery rule. See id. The court stated that by
However, it is not clear whether an using a general point of error, the plaintiff
appellant who uses a general point of error but "could present argument on all grounds on
does not brief every ground raised in the which he contends that summary judgment was
summary judgment motion waives the unargued inappropriate." Id. The court noted, however,
grounds on appeal. See Stevens v. State Farm that the plaintiff did not take advantage of this
Fire & Cas. Co., 929 S.W.2d 665, 669-70 (Tex. opportunity; rather, he focused his briefing on
App.—Texarkana 1996, writ denied). There are the issue of limitations. See id. Thus, the court
two main situations when an appellant may face ruled that "failure to take advantage of the
this issue. First, the appellant may have failed to opportunity to present argument on the
challenge one of the movant's grounds either in alternative ground results in waiver." Id.
the trial court in the response or in the appellate
court in the appellate brief. Second, the Other courts have similarly found that a
appellees could have challenged all of the broad issue only allows an appellant the
movant's grounds to the trial court in the opportunity to brief and argue all grounds, it
response, but failed to challenge every ground in does not relieve a party of the obligation to brief
the appellate brief. all grounds that the trial court could have used to
support the order. See, e.g., McCoy v. Rogers,
As to the first situation, courts have held 240 S.W.3d 267 (Tex. App.—Houston [1st
that the appellant waived the appeal. In San Dist]. 2007, pet. denied); Cruikshank v.
Jacinto River Authority v. Duke, the Texas Consumer Direct Mortgage, Inc., 138 S.W.3d
Supreme Court held that an appellate court may 497, 502-03 (Tex. App.—Houston [14th Dist.]
not reverse a summary judgment on issues that 2004, pet. denied); Pena v. State Farm Lloyds,
were not briefed or assigned as error. 783 980 S.W.2d 949, 958-59 (Tex. App.—Corpus
S.W.2d 209, 209-10 (Tex. 1990). In doing so, Christi 1998, no pet.) (concluding that Malooly
the court cited to Central Education Agency v. allowed the non-movant to argue broadly on
Burke, which held that a court of appeals erred appeal under a general point of error, but it did
in reversing a summary judgment on grounds not relieve an appellant of the burden to
neither raised in opposition to the motion at the challenge the grounds for the summary
trial court level nor presented to the court of judgment and to present argument for his case

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 43

on appeal). See also Judson 88 Partners v. id. at 121-33. Some courts of appeals simply
Plunkett & Gibson, Inc., 2000 Tex. App. LEXIS ignored Inpetco, some distinguished it, and
3308, No. 14-99-00287-CV, 2000 WL 977402, others seemingly refused to follow it. See id.
*2 n.2 (Tex. App.—Houston [14th Dist.] May Much of the confusion in this area occurred
18, 2000, no pet.) (not designated for because the courts of appeals were trying to
publication) (noting that Malooly holds that apply Inpetco, which applied the waiver doctrine
"even a broad point of error must still be to a summary judgment appeal, to non-summary
supported by argument challenging each judgment appeals without taking into account
independent summary judgment ground. . . . the inherent differences in the two types of
Otherwise, the assertion of a broad point of error judgments. One court has attempted to limit
would shift the burden to the appellate court to Inpetco because of the change in the Texas
search the record for grounds on which to Rules of Appellate Procedure. See Svabic v.
reverse the summary judgment."). Svabic, 1999 Tex. App. LEXIS 7829 (Tex.
App.—Houston [1st Dist.] Oct. 21, 1999, no
There is limited guidance from Texas pet.) (not design. for pub.) ("Rule 74, on which
courts as to the second situation. The Texas the court relied in Inpetco, has been repealed and
Supreme Court has authored a number of replaced. Rule 38.9 does not require the court to
opinions that relate to this topic, but it has never allow rebriefing or supplementation as rule 74
directly addressed the situation when a non- did.").
movant attacks every ground in his response to
the trial court and then only attacks a few of In Fredonia State Bank v. General
those grounds in his brief to the appellate court. American Life Insurance Co., the Texas
In Inpetco, Inc. v. Texas American Bank, the Supreme Court revisited Inpetco and held that it
non-movant appealed an adverse summary did not require the courts of appeals to order
judgment to the appellate court using a general rebriefing. 881 S.W.2d 279, 284-85 (Tex.
point of error. 729 S.W.2d 300 (Tex. 1987) (per 1994). Rather, the courts of appeals have
curiam). The appellate court held that the non- discretion to determine whether to deem a point
movant had waived the appeal because the point waived or to order rebriefing. See id. at 284
of error was too broad and there was insufficient ("The principle underlying the opinion in Davis
argument and authorities under the point of is the settled rule that an appellate court has
error. See Inpetco, Inc. v. Texas Am. some discretion to choose between deeming a
Bank/Houston, 722 S.W.2d 721, 721-22 (Tex. point waived and allowing amendment or
App.—Houston [14th Dist.] 1986), writ ref'd rebriefing, and that whether that discretion has
n.r.e. per curiam, 729 S.W.2d 300 (Tex. 1987). been properly exercised depends on the facts of
The supreme court reversed the appellate court the case."). "Although Fredonia did not support
stating that it had erred in affirming the trial its holding by distinguishing Inpetco on the
court's judgment on the basis of briefing basis that it was a summary judgment appeal, it
inadequacies without first ordering the non- seems to support [the proposition] that an
movant to rebrief. See Inpetco, 729 S.W.2d at appellate court has discretion to look to the
300. appellant's response to supply any missing
argument under a general point of error."
The Texas Supreme Court's ruling in Shivers v. Texaco Exploration & Prod., 965
this case was contrary to the historical S.W.2d 727, 733 (Tex. App.—Texarkana 1998,
development of waiver in the context of pet. denied).
briefing. See David M. Gunn, Unsupported
Points of Error on Appeal, 32 S. TEX. L. REV. In Bonham State Bank v. Beadle, the
105, 120-21 (1990). Inpetco apparently required Texas Supreme Court held that when an
appellate courts to allow appellants to rebrief appellant had raised an issue challenging the
inadequately briefed points of error before the summary judgment on an independent ground
court could find waiver. This case produced a with the trial court but failed to raise it in the
wave of confusion in the courts of appeals. See appellate brief, he waived that issue. 907

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 44

S.W.2d 465, 470 (Tex. 1995). Beadle, however, exists and that it is entitled to
did not deal with a situation when the appellant judgment as a matter of law.
lost the entire appeal due to the waiver. The
appellate court simply chose not to consider the Id.
independent issue that the appellant raised to the
trial court but failed to raise in the appellate "In essence, [the Texarkana court] ruled
court. See id. See also General Servs. Comm'n that because the appellant used a general point
v. Little-Tex Insulation Co., 39 S.W.3d 591 of error, he challenged all the grounds on which
(Tex. 2001); Standard Fruit & Vegetable Co. v. the summary judgment could have been based."
Johnson, 985 S.W.2d 62 (Tex. 1998). Shivers, 965 S.W.2d at 732. Due to the de novo
standard of review on appeal, the appellate
In Stevens v. State Farm Fire and court, like the trial court, may consider the
Casualty Co., the Texarkana Court of Appeals clerk's record and the appellant's summary
ruled that when an appellant advances a general judgment response, "wherein he presumably
point of error in his appellate brief, but fails to briefed and challenged every argument that the
argue all grounds that the movant advanced in appellee raised in his summary judgment
support of his motion in the trial court, the motion." Id. Further, there is no presumption of
appellate court may in its discretion refuse to corrections in the summary judgment context.
consider the unargued bases for reversing the After a trial on the merits, a trial court's
judgment. 929 S.W.2d 665, 670 (Tex. App.— judgment is presumed correct. But in summary
Texarkana 1996, writ denied); see also Shivers, judgment cases, no presumption of correctness
965 S.W.2d at 732. In Stevens, the court attaches to the trial court's judgment and the
declined to use that discretion and instead movant still must carry his burden at the
considered that the appellant had simply limited appellate court level. See Gillespie v. Fields,
his argument to his strongest point, and 958 S.W.2d 228, 231 (Tex. App.—Tyler 1997,
considered the other possible attacks against the pet. denied) ("The presumptions and burden of
judgment. Stevens, 929 S.W.2d at 670. In so proof for an ordinary or conventional trial are
holding the court stated: immaterial to the burden that a movant for
summary judgment must bear.") (citing Missouri
As a practical matter, even if an Kansas-Texas R.R. Co. v. City of Dallas, 623
appellant fails to argue all S.W.2d 296, 298 (Tex. 1981)). Because unlike a
grounds after a general point of judgment after a trial on the merits, there is no
error, presumably it argued all presumption applicable to a summary judgment.
those grounds in its summary Thus, the briefing standards should also be
judgment response at trial. If a different, with summary judgment appeals given
general point of error simply is more liberal treatment. Compare King v.
a request for the appellate court Graham Holding Co., 762 S.W.2d 296, 298-99
to conduct a de novo review of (Tex. App.—Houston [14th Dist.] 1988, no writ)
the trial court's judgment, the (noting that Inpetco dealt with a summary
appellate court can, as a judgment appeal where the more liberal Malooly
practical matter, step into the briefing rules apply and that Inpetco did not
trial court's shoes and can, by create a general right to rebrief).
reviewing the pleadings and
evidence as raised in the motion Following the rule that the appellant
and response, determine waives appeal by not briefing every possible
whether the trial court properly ground would require an appellate court to
granted judgment. The appellee affirm a summary judgment even if the trial
still must meet its appellate court erred in finding that the movant's summary
burden of showing that no judgment grounds were legally sufficient, and
genuine issue of material fact the non-movant challenged the summary
judgment in its entirety by a general point of

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 45

error. See Shivers, 965 S.W.2d at 732. See also he/she does not do so, they will risk waiving the
Bean v. Reynolds Realty Group, Inc., 192 entire appeal. If the party fails to challenge every
S.W.3d 856 (Tex. App.—Texarkana 2006, no possible ground raised in the summary judgment
pet.). motion in either the response to that motion, or
in his appellate brief, the appellate court will
In Sadler v. Bank of Am., N.A., the court certainly affirm the judgment on the
of appeals held that it would not affirm a unchallenged grounds. On the other hand, if the
summary judgment based solely on briefing party challenges every ground raised in the
errors: summary judgment motion in the response to
that motion, the appellate court arguably may,
Sadler's failure to adequately like the court in Stevens, choose to review that
brief the reasons he believed the response and not find a waiver of the appellant's
trial court's ruling on the appeal. Most likely, however, the court will
objections was erroneous would choose not to exercise that discretion because of
ordinarily result in a waiver of docket concerns and, due to the supreme court's
the issue. However, the waiver recent and apparent fondness of summary
of this issue would require an judgments, it will not likely reverse the
affirmance of the trial court's decisions of the courts of appeals affirming
judgment because Sadler would summary judgments.
not have produced any summary
judgment evidence in response 4. Criticism of General Points of
to BOA's no-evidence motion. Error
This court is not permitted to
affirm a judgment on the basis One court of appeals has complained of
of briefing inadequacies without the Malooly briefing rule, which allows
first ordering the party to re- argument as to all possible summary judgment
brief. Inpetco, Inc. v. Texas grounds to be raised under a single point of
American Bank/Houston N.A., error. In A.C. Collins Ford Motor Co., the court
729 S.W.2d 300, 30 Tex. Sup. urged the Texas Supreme Court to reconsider the
Ct. J. 336 (Tex. 1987). Malooly briefing rules. Id.; see also Natividad
Accordingly, we do not rest our v. Alexsis, Inc., 833 S.W.2d 545, 549 (Tex.
decision on Sadler's briefing App.—El Paso 1992), rev'd on other grounds,
inadequacies. 875 S.W.2d 695 (Tex. 1994). The court stated
that "the time has come when attorneys should
2004 Tex. App. LEXIS 5491 (Tex. App.—San be able to direct an appellate court to the error of
Antonio June 23, 2004, no pet.). the trial court with such specificity that there is
no question about the complaint on appeal."
In A.C. Collins Ford, Inc. v. Ford Motor A.C. Collins Ford, Inc., 807 S.W.2d at 760.
Co., the court found that the party appealing a Further, the court pointed out that when the
summary judgment waived appeal by not raising appellate record consists of volumes of material,
in the appellate brief the issue of conspiracy. "a single point of error saying the trial court
807 S.W.2d 755, 760 (Tex. App.—El Paso erred is little help" to the appellate court. Id. To
1990, writ denied). The court did not state date, however, the Texas Supreme Court has
whether the appellant had raised conspiracy in refused to overrule Malooly. Indeed, it has
the summary judgment response in the trial reaffirmed Malooly in Plexchem International,
court. Inc. v. Harris County Appraisal District. 922
S.W.2d 930, 931 (Tex. 1996).
The best practice for a party appealing
from a general summary judgment is to set out a
general point of error and argue every ground
raised in the summary judgment motion. If

SUMMARY JUDGMENT APPELLATE ISSUES IN TEXAS – PAGE 46

 5. How to Raise and Brief a Proper in Texas. Whether the issue is the appropriate
Point of Error standard and scope of review; the finality of the
summary judgment order; the effect of motions,
A party appealing an adverse summary responses, and evidence missing from the
judgment should brief the appeal as thoroughly record; or the exactitude of briefing to the
as possible. First, the general point of error appellate court, a party must be aware of recent
should state, "The Trial Court Erred In Granting precedent and rule changes in order to avoid the
The Motion For Summary Judgment." Malooly sometimes harsh consequence of waiver of an
Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. issue on appeal. Therefore, the authors hope
1970). As discussed above, this allows the that this article will help to inform attorneys who
appellant to attack every ground relied on by the either need to appeal or respond to an appeal of
motion for summary judgment. Because the a summary judgment.
appellate courts and their staffs will find sub-
points of error helpful, the appellant should also
raise a sub-point of error stating, "The trial court
erred in granting the summary judgment on
ground X because of Y." An example of such a
brief is contained in Davis v. Pletcher, where the
court states: By a plethora of points, appellant . .
. assails the action of the trial court in partially
granting the summary judgment. In the first of
the 59 points of error, appellant complains
simply that the court erred in granting the
motion. The following 41 points elaborate on
this first point in a multitude of ways and are
addressed by appellant in seven groups of from
one to thirteen points. 727 S.W.2d 29, 32 (Tex.
App.—San Antonio 1987, writ ref'd n.r.e.). This
language will act as a road map and insure that
the appellate court will not overlook any
argument or authorities that may be dispositive.
The appellant should brief and argue every
ground raised in the summary judgment motion,
and should place these contentions in sub-points
of error. This should be done whether the appeal
is from a general or specific summary judgment
order. If the order is specific, the appellate court
can still affirm the summary judgment on
grounds not considered by the trial court. It is
wise for an appellant to clearly set out
opposition to every possible ground on which
the appellate court can affirm a summary
judgment. If the summary judgment order is
general, the appellant should assert as a sub-
point of error and brief every possible ground to
avoid waiving his appeal.

XII. CONCLUSION

As we have seen, an attorney faces

many issues in appealing a summary judgment

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