SUMMARY JUDGMENTS IN TEXAS

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

State Bar of Texas

Advanced Civil Trial Course
San Antonio July 19-21, 2017
Dallas August 16-18, 2017
Houston October 25-27, 2017

Chapter 4

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 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

AWARDS AND HONORS:

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CURRENT LEGAL EMPLOYMENT:

*Managing Shareholder of Winstead PC’s Fort Worth Office
-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 hundred and fifty (150) continuing
legal education courses.

4828-7582-4199v.2 999997-1340
I. INTRODUCTION are sufficiently specific. See Tomlinson v.
Estate of Theis, No. 03-07-00123-CV, 2008 Tex.
Summary judgment motions are App. LEXIS 372 (Tex. App.—Austin January
common place in almost any civil suit in Texas. 18, 2008, no pet.); Dear v. City of Irving, 902
Whether seeking dismissal of the entire case or S.W.2d 731, 734 (Tex. App.—Austin 1995, writ
seeking the dismissal of some (but not all) denied). "Summary judgments . . . may only be
claims or defenses, parties routinely file motions granted upon grounds expressly asserted in the
for summary judgment. Therefore, almost all summary judgment motion." G & H Towing Co.
attorneys will eventually find themselves asking v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per
an appellate court to either affirm or reverse a curiam) (citing Tex. R. Civ. P. 166a(c)).
summary judgment. When in that position, an
attorney needs to be aware of a multitude of In McConnell v. Southside Independent
issues that can drastically affect the fate of the School District, the Texas Supreme Court dealt
summary judgment. This article attempts to with the issue of whether a party properly raised
address some of the common issues that arise in summary judgment grounds. 858 S.W.2d 337,
summary judgment practice. 338 (Tex. 1993). The defendant filed the
summary judgment motion, which asserted only
II. SUMMARY JUDGMENT GROUNDS that "there were no genuine issues as to any
material facts . . . ." Id. at 339 n.1. In a separate
A summary judgment appeal will stand document the defendant filed a twelve-page
or fall on two main components: 1) the grounds brief in support of the motion. See id. The
asserted in the motion; and 2) whether the plaintiff filed an exception to the form of the
evidence was sufficient to create a fact issue in defendant's motion and argued that the motion
reference to the grounds. See Science Spectrum did not state the grounds for the summary
v. Martinez, 941 S.W.2d 910 (Tex. 1997). judgment. See id. at 344-45 (Hecht, J.,
Accordingly, whether the grounds were properly dissenting). The trial court overruled the
asserted and what grounds were asserted are plaintiff's exception and granted the summary
very important factors in appealing a summary judgment, which the plaintiff appealed. See id.
judgment. See id. at 339. The court of appeals affirmed the trial
court. See id. The Texas Supreme Court,
A. Traditional Motion For Summary relying on Texas Rule of Civil Procedure
Judgment 166a(c), reversed the judgments of both lower
courts. See id. at 343-44. Rule 166a(c) states,
The movant must expressly state the "the motion for summary judgment shall state
specific grounds for summary judgment in the the specific grounds therefor." TEX. R. CIV. P.
motion. See id; McLendon v. Detoto, No. 14- 166a(c).
06-00658-CV, 2007 Tex. App. LEXIS 5173
(Tex. App.—Houston [14th Dist.] July 3, 2007, Taking a literal view of the rule, the
pet. denied). The purpose of this requirement is Texas Supreme Court held that a "motion for
to provide the nonmovant with adequate summary judgment must itself expressly present
information to oppose the motion and to define the grounds on which it is made." McConnell,
the issues for the purpose of summary judgment. 858 S.W.2d at 341. Further, the court held that a
See FDIC v. Lenk, 361 S.W.3d 602, n.7 (Tex. trial court may not rely on briefs or summary
2012); Westchester Fire Ins. Co. v. Alvarez, 576 judgment evidence in determining whether
S.W.2d 771, 772 (Tex. 1978). The specificity grounds are expressly presented. See id.; see
requirement of Rule 166a(c) echoes the "fair also Science Spectrum, Inc. v. Martinez, 941
notice" pleading requirements of Texas Rules of S.W.2d 910, 912 (Tex. 1997); RR Publication &
Civil Procedure 45(b) and 47(a). Id. at 773. If Prod. Co. v. Lewisville Indep. Sch. Dist., 917
the motion contains a concise statement that S.W.2d 472, 473 (Tex. App.—Fort Worth 1996,
provides fair notice of the claim involved to the no writ).
nonmovant, the grounds for summary judgment

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 A court of appeals cannot review a appeals erred by reversing the trial court's
ground that was not contained in the summary judgment. See id. The Court reviewed the
judgment motion to affirm that order. See briefing and arguments in the motion to give
ExxonMobil Corp. v. Lazy R. Ranch, LP, No. flesh to the rather broad issue statement.
15-0270, 2017 Tex. LEXIS 210 (Tex. February
24, 2017); Paragon General Contractors, Inc. v. When a plaintiff amends her pleadings
Larco Constr., Inc., 227 S.W.3d 876 fn. 9 (Tex. after a defendant has moved for summary
App.—Dallas 2007, no pet.). A trial court can judgment, the defendant must ordinarily file an
only grant summary judgment on the grounds amended motion for summary judgment to be
addressed in the motion for summary judgment. entitled to prevail on the entirety of the
See Blancett v. Lagniappe Ventures, Inc., 177 plaintiff's case. See Smith v. Atl. Richfield Co.,
S.W.3d 584, 592 (Tex. App.—Houston [1st 927 S.W.2d 85, 88 (Tex. App.—Houston [1st
Dist.] 2005, no pet.); Positive Feed, Inc. v. Dist.] 1996, writ denied). The portion of a final
Guthmann, 4 S.W.3d 879, 881 (Tex. App.— summary judgment that is rendered on the
Houston [1st Dist.] 1999, no pet.) ("When, as plaintiff's entire case under these circumstances
here, a trial court grants more relief by summary must be reversed because the judgment grants
judgment than requested, by disposing of issues more relief that requested. See Lehmann v. Har-
never presented to it, the interests of judicial Con Corp., 39 S.W.3d 191, 200 (Tex. 2000);
economy demand that we reverse and remand as Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879,
to those issues, but address the merits of the 881 (Tex. App.—Houston [1st Dist.] 1999, no
properly presented claims."). pet.). However, an exception applies when the
grounds initially asserted in the motion for
The Texas Supreme Court issued an summary judgment conclusively negate an
opinion affirming a trial court’s summary element that is common to the allegation
judgment where the issue on appeal was whether asserted in the amended pleadings. See Judwin
a ground was raised in the underlying motion. Props., Inc. v. Griggs & Harrison, 911 S.W.2d
See Nall v. Plunkett, No. 12-0627, 2013 Tex. 498, 502-03 (Tex. App.—Houston [1st Dist.]
LEXIS 518 (Tex. June 28, 2013). In Nall, the 1995, no writ). See Fraud-Tech, Inc. v.
plaintiff sued the defendants based on an Choicepoint, Inc., 102 S.W.3d 366, 387 (Tex.
accident that occurred after a third party left a App.—Fort Worth 2003, pet. denied).
party being hosted by the defendant. See id.
The plaintiff raised a negligence claim based on The party who wants to complain of the
the defendants’ alleged failure to exercise due form of the motion must "properly" except to it.
care in their undertaking. See id. The summary But what is a "proper exception"? Must the non-
judgment motion stated the issue as: "Whether movant except to the trial court, or can he raise
the defendants have any duty to plaintiff in the the defect for the first time in his appellate brief?
factual scenario pled by the plaintiff." See id. The Texas Supreme Court set forth some
The defendants "short answer" was that "Texas guidelines for deciding this issue. See
does not recognize social host liability, and McConnell, 858 S.W.2d at 342-43. When the
defendants do not have any duty to the plaintiff motion does not present any grounds in support
in this case." See id. The court of appeals held of summary judgment, the non-movant is not
that the trial court erred by granting summary required to except to it in the trial court. See id.
judgment because the defendants failed to at 342; see also Mercantile Ventures, Inc. v.
address the plaintiff’s negligent-undertaking Dunkin' Donuts, Inc., 902 S.W.2d 49, 50 (Tex.
theory in their motion. See id. The Texas App.—El Paso 1995, no writ). The reasoning is
Supreme Court disagreed, holding that summary that the motion must stand or fall on its own
judgment motion specifically addressed the merits, and the non-movant's failure to respond
negligent-undertaking claim by arguing that a or except to the motion in the trial court should
prior opinion foreclosed the assumption of any not result in a judgment by default. See
duty (i.e., an undertaking) by a social host. McConnell, 858 S.W.2d at 342.
Therefore, the Court held that the court of

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 Where the summary judgment motion except to a motion for summary
presents some grounds, but not all, once again judgment when the grounds in
the non-movant is not required to except to the the motion are unclear or
trial court because to do so in this situation ambiguous. This case involves
would require the non-movant to alert the a motion that is itself ambiguous
movant to the additional grounds that he left out whether it is a motion for
of his summary judgment motion. See id. See summary judgment or a motion
also DeWoody v. Rippley, 951 S.W.2d 935, 944 for forum non conveniens.
n.7 (Tex. App.—Fort Worth 1997, writ dism'd
by agr.). Id. at 24 (footnote omitted). Thus, the non-
movant did not have to specially except to the
The Court noted that "[a]n exception is trial court to preserve error. If the non-movant
required should a non-movant wish to complain fails to file an exception to a motion with this
on appeal that the grounds relied on by the defect, the only harm the non-movant will incur
movant were unclear or ambiguous." is that, on appeal, he will lose the right to have
McConnell, 858 S.W.2d at 342; see also D.R. the grounds narrowly focused. See McConnell,
Horton-Tex., Ltd. v. Markel Int'l Ins. Co., 300 858 S.W.2d at 343. Thus, the appellate court
S.W.3d 740, 743 (Tex. 2009) ("A non-movant can affirm on any ground that was included in
must present its objections to a summary the ambiguous summary judgment motion. See
judgment motion expressly by written answer or id. at 342-43. Further, these rules apply to the
other written response to the motion in the trial non-movant's response and supporting brief
court or that objection is waived."). “However, because he must also expressly present to the
even when a non-movant fails to except, the trial court any issues that defeat the movant's
court of appeals cannot ‘read between the lines’ "entitlement." See id. at 343; see also
or infer from the pleadings any grounds for Cornerstones Mun. Util. Dist. v. Monsanto Co.,
granting the summary judgment other than those 889 S.W.2d 570, 574 (Tex. App.—Houston
grounds expressly set forth before the trial [14th Dist.] 1994, writ denied) ("Any issue that a
court.” Nall, 2013 Tex. LEXIS 518, at *5-6 non-movant contends avoids the movant's
(quoting McConnell, 858 S.W.2d at 343). entitlement to summary judgment must be
expressly presented by written answer to the
It is only when the grounds in the motion, and not in a brief.").
summary judgment motion are unclear or
ambiguous that the non-movant must file an There is one difference in the
exception to the motion with the trial court, thus consequences that attach to a movant's failure to
ensuring that the parties and the trial court are file his motion and supporting brief in the same
focused on the same grounds. See McConnell, document and those resulting from a non-
858 S.W.2d at 342-43. See also Porterfield v. movant's failure to file his response and
Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex. supporting brief in the same document. See
App.—San Antonio 1997, writ denied); cf. McConnell, 858 S.W.2d at 343. A non-movant's
Toubaniaris v. American Bureau of Shipping, failure to answer or respond cannot, by itself,
916 S.W.2d 21, 24 (Tex. App.—Houston [1st entitle the movant to a summary judgment
Dist.] 1995, no writ). because, even if the non-movant fails to respond,
the movant still has the obligation to carry his
The Toubaniaris court stated the initial burden. See id. at 343. However, this
following: choice is not the most advantageous position for
the non-movant because, on appeal, he may only
We hold the language in argue the legal sufficiency of the summary
McConnell inapplicable to this judgment motion. See id. Even if the party who
case because McConnell only is required to file an exception to the motion or
addressed the issue whether a response with the trial court does so, that party is
non-movant should specially still required to present the issue to the appellate

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court in his appellate brief, or he waives the no pet.) (citing Binur v. Jacobo, 135 S.W.3d
issue. See Wilson v. General Motors Acceptance 646, 651 (Tex. 2004)).
Corp., 897 S.W.2d 818, 823 (Tex. App.—
Houston [1st Dist.] 1994, no writ). That the If an appellate court determines that the
motion or response contains the grounds is not motion did not adequately present the no-
the only requirement. The party need not evidence ground to the trial court, the movant
completely brief each ground or issue; he must could waive that ground because of the lack of
only notify the opposing party of what they are. notice to the non-movant. See Bean v. Reynolds
See Golden Harvest Co., Inc. v. City of Dallas, Realty Group, Inc., 192 S.W.3d 856, 859 (Tex.
942 S.W.2d 682, 691 (Tex. App.—Tyler 1997, App.—Texarkana 2006, no pet.) (holding that
writ denied) ("The motion for summary motion that stated only that "there is no evidence
judgment must state specific grounds on which it to support the plaintiff's causes of actions and
is made. The grounds in the motion are allegations" was ineffective); Thomas v.
sufficiently specific if the motion gives 'fair Clayton Williams Energy, Inc., 2 S.W.3d 734
notice' to the non-movant."); see also Harwell v. (Tex. App.—Houston [14th Dist.] 1999, no
State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, pet.). The Corpus Christi Court of Appeals has
175 (Tex. 1995). Furthermore, if the motion been especially quick to find waiver of
itself states legally sufficient grounds, the trial no-evidence grounds. See Richard v. Reynolds
court does not err in considering a separately Metal Co., 108 S.W.3d 908 (Tex. App.—Corpus
filed brief in deciding a summary judgment Christi 2003, no pet.) (where a summary
motion. See Golden Harvest Co., 942 S.W.2d at judgment motion does not unambiguously state
692. that it is filed under Rule 166a(i) and does not
strictly comply with the requirements of that
B. No-Evidence Motion for Summary Rule, then court will construe it as a traditional
Judgment motion); Michael v. Dyke, 41 S.W.3d 746, 750
(Tex. App.—Corpus Christi 2001, no pet.).
Just as a traditional summary judgment Further, issues not expressly presented to the
movant must present its grounds in the motion, a trial court may not be considered at the appellate
no evidence movant must similarly raise any no level, either as grounds for reversal or as other
evidence grounds clearly in the motion. The no grounds in support of a summary judgment. See
evidence motion should be specific as to the generally TEX. R. CIV. P. 166a(c); Stiles v.
challenged elements to give fair notice to the Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.
non-movant as to the evidence it must present. 1993); W.R. Grace Co. v. Scotch Corp., 753
See Timpte Indus. Inc. v. Gish, 286 S.W.3d 306, S.W.2d 743 (Tex. App.—Austin 1988, writ
310 (Tex. 2009). A party can contest every denied); Dickey v. Jansen, 731 S.W.2d 581, 583
element of its opponent’s case so long as each (Tex. App.—Houston [1st Dist.] 1987, writ ref'd
element is distinctly and explicitly challenged. n.r.e.).
See Martin v. McDonald, 247 S.W.3d 224, 233
(Tex. App.—El Paso 2006, no pet.). If the no-evidence point is hidden, the
appellate court may simply waive that ground
A party can assert both traditional and and reverse the summary judgment unless one of
no-evidence grounds in the same motion. See the movant's traditional grounds can support the
Merriman v. XTO Energy, Inc., No. 11-0494, summary judgment. See Shaw v. Maddox Metal
2013 Tex. LEXIS 492, *5 (Tex. 2013); Binur v. Works, 73 S.W.3d 472 n.2 (Tex. App.—Dallas
Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). And 2002, no pet.); Hunt v. Killeen Imports, No.
a no evidence summary judgment motion that 03-99-00093-CV, 1999 Tex. App. LEXIS 9278
attaches evidence should not be disregarded or (Tex. App.—Austin December 16, 1999, pet.
treated as a traditional summary judgment denied) (not design. for pub.); Thomas v.
motion. See Rankin v. Union Pac. R. Co., 319 Clayton Williams Energy, Inc., 2 S.W.3d 734
S.W.3d 58, 63 (Tex. App.—San Antonio 2010, (Tex. App.—Houston [14th Dist.] 1999, no
pet.). For example, in Tello v. Bank One, N.A.,

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the court of appeals found that that the movant does not require it. We will
waived its no-evidence grounds: therefore treat the Albins'
motion as a hybrid motion
The Bank did not specify where, on the issue of
whether the part of its motion testamentary capacity, they met
opposing Tello's counterclaims the higher summary-judgment
was a traditional motion or a burden under 166a by
"no-evidence" motion. At conclusively establishing that
times, the Bank used language there existed no genuine issue of
applicable to a traditional material fact.
motion; but at other times, the
Bank generally asserted that Id. (internal citation omitted).
Tello has "no evidence" to
support his various claims or Courts have held that when a party files
factual allegations. However, a dual motion but only argues on appeal “matter
the motion did not "state the of law” points, it waives its “no-evidence”
elements as to which there is no points on appeal. See Brown v. Blum, 9 S.W.3d
evidence" as required by Rule 840(Tex. App.—Houston [14th Dist.] 1999,
166a(i). Because the motion did review dismissed w.o.j.); but see Young
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.). In Tomlinson, the the standard of review
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

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raise an objection, or more properly a special v. Killam, 53 S.W.3d 1, 3 (Tex. App.—San
exception, to the motion. If the non-movant Antonio 2000, pet. denied). For example, in
fails to raise this special exception or objection, Rodriguez v. Gulf Coast & Builders Supply Inc.,
some courts have held that the non-movant will the court held that if a no-evidence motion does
waive the complaint on appeal. See Quesada v. not state an element, the complaint about that
American Garment Finishers Corp., No. failure can be raised for the first time on appeal;
08-02-00092-CV, 2003 Tex. App. LEXIS 3338 however, the court noted that other complaints
(Tex. App.—El Paso April 17, 2003, no pet.) about the motion, e.g., vague, ambiguous, etc.,
(memorandum opinion); Zwank v. Kemper, No. require a special exception to preserve error.
07-01-0400-CV, 2002 Tex. App. LEXIS 6508 No. 14-05-00430-CV, 2006 Tex. App. LEXIS
(Tex. App.—Amarillo August 29, 2002, no pet.) 11073 (Tex. App.—Houston [14th Dist.]
(not desig. for pub.); Barnes v. Sulack, No. December 28, 2006, no pet).
03-01-00159-CV, 2002 Tex. App. LEXIS 5727
(Tex. App.—Austin August 8, 2002, pet. denied) A party relying on an affirmative
(not desig. for pub.); Miller v. Elliott, 94 defense may not file a no-evidence motion on
S.W.3d 38 (Tex. App.—Tyler July 24, 2002, that defense as it would have the burden to prove
pet. denied); Walton v. Phillips Petroleum, Co., that matter. See Forney 921 Lot Dev. Partners I,
65 S.W.3d 262 (Tex. App.—El Paso 2000, pet. L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d
denied); Williams v. Bank One Texas, N.A., 15 258, 268 (Tex. App.—Dallas 2011, no pet.). If a
S.W.3d 110, 117 (Tex. App.—Waco 1999, no movant files a no-evidence motion based on an
pet.); Roth v. FFP Operating Partners, L.P., affirmative defense, the non-movant should
994 S.W.2d 190, 194-95 (Tex. App.—Amarillo object or specially except to that impermissible
1999, pet. denied). See also Leifester v. Dodge ground. See Hermann v. Lindsey, 136 S.W.3d
Country, Ltd., No. 03-06-00044-CV, 2008 Tex. 286, 290 (Tex. App.—San Antonio 2003, no
App. LEXIS 790 (Tex. App.—Austin February pet.) (movant filed no-evidence ground on its
1, 2008, no pet.). own counterclaim, court found that non-movant
waived error by not filing a special exception
Other courts have held that a but reviewed motion under a traditional
no-evidence motion that does not properly summary judgment standard of review);
challenge an element of the non-movant's claim Flameout Design & Fabrication v. Pennzoil
or defense is legally insufficient and that Caspian Corp., 994 S.W.2d 830, 834 (Tex.
complaint can be raised for the first time on App.—Houston [1st Dist.] 1999, no pet.); but
appeal. See In re Estate of Swanson, 130 see Kesyler v. Menil Med. Ctr. of E. Tex., 105
S.W.3d 144, 147 (Tex. App.—El Paso 2003, no S.W.3d 122 (Tex. App.—Corpus Christi 2003,
pet.); Kesyler v. Menil Med. Ctr. of E. Tex., 105 no pet.). Therefore, it is important for a non-
S.W.3d 122 (Tex. App.—Corpus Christi 2003, movant to point out to the trial court any
no pet.); Dentler v. Helm-Perry, No. improper burden-shifting by an objection or
04-02-00034-CV, 2002 Tex. App. LEXIS 8167 special exception.
(Tex. App.—San Antonio November 20, 2002,
no pet.) (not desig. for pub.); Crocker v. C. Pleadings To Support Ground For
Paulyne's Nursing Home, Inc., 95 S.W.3d 416 Summary Judgment
(Tex. App.—Dallas November 8, 2002, no pet.);
Gross v. Methodist Hosp. Of Dallas, No. A party cannot not rely upon unpled
05-00-02124-CV, 2002 Tex. App. LEXIS 4590 claims or defenses as a ground for summary
(Tex. App.—Dallas June 27, 2002, no pet.) (not judgment. See FDIC v. Lenk, 361 S.W.3d 602,
desig. for pub.); Laparade v. Rivera, No. 609 (Tex. 2012) (A party must plead an
01-99-0723-CV, 2002 Tex. App. LEXIS 3487 affirmative defense to be able to rely on it in a
(Tex. App.—Houston [1st Dist.] May 16, 2002, summary judgment proceeding); Roark v.
no pet.) (not desig. for pub.); Cuyler v. Minns, Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495
60 S.W.3d 209 (Tex. App.—Houston [14th (Tex. 1991); DeBord v. Muller, 446 S.W.2d
Dist.] 2001, pet. denied); Callaghan Ranch, Ltd. 299, 301 (Tex. 1969) (an unpled affirmative

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defense may not serve as the basis for a of action, i.e., different ways that the movant
summary judgment). However, such a claim or was negligent, then the original motion for
defense may be raised in a summary judgment summary judgment will be sufficiently broad to
motion where the opposing party does not object cover the added grounds and an amended motion
to a lack of pleading. See Roark, 813 S.W.2d at for summary judgment will not be necessary.
495; TPAS, Inc. v. Engel, 350 S.W.3d 602, 609 See Logsdon v. Logsdon, No. 02-16-00063-CV,
(Tex. App.—Houston [14th Dist. 2011, no pet.). 2017 Tex. App. LEXIS 1370 (Tex. App.—Fort
This is based on the waiver theory of trial by Worth February 16, 2017, no pet.); Am. Zurich
consent. See TPAS, Inc. v. Engel, 350 S.W.3d at Ins. Co. v. Barker Roofing, L.P., 387 S.W.3d 54,
609. However, a nonmovent is not required to 67 (Tex. App.—Amarillo 2012, no pet.)
anticipate and respond to ground that were not (holding summary judgment could be granted as
raised in the motion. See id. to new claims added before the motion was
decided); Ritter v. Las Colonitas Condo. Ass'n,
D. Newly Plead Claims 319 S.W.3d 884, 891 (Tex. App.—Dallas 2010,
no pet.) (upholding summary judgment on
After a party files a motion for summary claims added after the motion was filed but
judgment, it is not uncommon for the responding before the motion was disposed); O'Kane v.
party to file an amended petition that raises new Coleman, 2008 Tex. App. LEXIS 4908 (Tex.
claims. A party may not be granted judgment as App.—Houston [14th Dist.] July 1, 2008, no
a matter of law on a cause of action not pet.); Dubose v. Worker's Med., P.A., 117
addressed in a summary judgment proceeding. S.W.3d 916, 922 (Tex. App.—Houston [14th
See Blancett v. Lagniappe Ventures, Inc., 177 Dist.] 2003, no pet.); Gulf Coast Radiology
S.W.3d 584, 592 (Tex. App.—Houston [1st Assocs. v. Malek, No. 14-02-01126-CV, 2003
Dist.] 2005, no pet.) (reversed summary Tex. App. LEXIS 3750 (Tex. App.—Houston
judgment where it failed to address claim added [14th Dist.] May 1, 2003, no pet.); Garza v.
in supplemental petition); Espeche v. Ritzell, 123 Minyard Food Stores, Inc., No.
S.W.3d 657, 664 (Tex. App.—Houston [14th] 05-98-02134-CV, 2001 Tex. App. LEXIS 4123
Dist. 2003, pet. denied) (citing Chessher v. Sw. (Tex. App.—Dallas June 22, 2001, no pet.) (not
Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)). desig. for pub.); Lampasis v. Spring Center, Inc.,
In order to get a final appealable summary 988 S.W.2d at 436. See also Hoskins v. Hoskins,
judgment, the movant will have to amend its 497 S.W.3d 490, 497 (Tex. 2016); G&H Towing
motion for summary judgment to address this Co. v. Magee, 347 S.W.3d 293 (Tex. 2011).
new cause of action. See Avary v. Bank of Am.,
N.A., 72 S.W.3d 779, 791 (Tex. App.—Dallas In Lampasis v. Spring Center, Inc., the
2002, pet. denied). "In order to be a final, movant filed a no-evidence motion for summary
appealable summary judgment, the order judgment against the non-movant's negligence
granting the motion must dispose of all the claim. 988 S.W.2d at 436. The non-movant
parties and all the issues before the court." filed an amended petition alleging new facts and
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199 new ways that the movant was negligent. The
(Tex. 2001). If a summary judgment order trial court granted the movant a final summary
grants more relief that was requested in the judgment, and the non-movant appealed this
motion, it must be reversed and remanded. Id. judgment arguing that the movant's motion did
not cover his newly pleaded grounds. The
But if a motion for summary judgment appellate court affirmed the summary judgment
is sufficiently broad to encompass later-filed and stated:
claims or defenses, the movant need not amend
its motion. See Lampasis v. Spring Center, Inc., The new no evidence summary
988 S.W.2d 428, 436 (Tex. App.—Houston judgment shifts the focus of the
[14th Dist.] 1999, no pet.). If the amended summary judgment from the
petition only sets forth new facts or new grounds pleadings to the actual evidence.
that are totally encompassed by the prior cause . . . The thrust of the new rule is

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 to require evidence. A no any issues defeating the movant's entitlement to
evidence summary judgment summary judgment. See McConnell, 858 S.W.2d
prevents the nonmovant from at 343 (citing City of Houston v. Clear Creek
standing solely on his pleadings, Basin Auth., 589 S.W.2d 671, 678 (Tex.1979));
but instead requires him to bring Dubose v. Worker's Medical, P.A., 117 S.W.3d
forward sufficient evidence to at 916, 920 (Tex. App.—Houston [14th Dist.]
withstand a motion for 2003, no pet.); see TEX. R. CIV. P. 166a(c).
instructed verdict. . . . Here, the "Issues not expressly presented to the trial court
no evidence motion for by written motion, answer or other response
summary judgment stated that shall not be considered on appeal as grounds for
there was no evidence of any reversal." TEX. R. CIV. P. 166a(c); see
duty, breach, or causation. . . . McConnell, 858 S.W.2d at 343; Dubose, 117
Instead of bringing forward S.W.3d at 920; Querner Truck Lines, Inc. v.
evidence on these challenged Alta Verde Indus., Inc., 747 S.W.2d 464, 469
elements, [appellant] amended (Tex. App.—San Antonio 1988, no writ)
his petition to include variations (finding non-movant waived argument on appeal
of other negligence claims. that it was entitled to additional offset against
However, all these new movant's damages than offset allowed by trial
variations in his second court because non-movant did not raise issue of
amended petition sound in additional offset in its summary judgment
negligence and are composed of response).
the same essential elements,
duty, breach, and causation, To "expressly" present issues pursuant
which were already challenged to Rule 166a(c), "[t]he written answer or
in appellees' motion. . . . . response to the motion must fairly apprise the
Therefore, [the trial court] movant and the court of the issues the non-
correctly granted the no movant contends should defeat the motion."
evidence summary judgment. Clear Creek, 589 S.W.2d at 678; see Engel v.
We do not hold that newly filed Pettit, 713 S.W.2d 770, 771-72 (Tex. App.—
pleadings may not ever raise Houston [14th Dist.] 1986, no pet.). The term
entirely new distinct elements of "issues" in Rule 166a(c) means "legal theories
a cause of action not addressed (i.e., grounds of recovery and defenses) and
in a no evidence motion for factual theories." Atl. Richfield Co. v. Exxon
summary judgment. However, Corp., 663 S.W.2d 858, 863 (Tex. App.—
based on the facts before us, the Houston [14th Dist.] 1983), rev'd on other
amended petition merely grounds, 678 S.W.2d 944 (Tex. 1984); see also
reiterates the same essential Lee v. Rogers Agency, No. 06-15-00037-CV,
elements in another fashion, and 2017 Tex. App. LEXIS 1069 (Tex. App.—
the motion for summary Texarkana February 8, 2017, pet. filed).
judgment adequately covers
these new variations. Issues are not expressly presented by
mere reference to summary judgment evidence.
Id. Therefore, a non-movant will have to plead a See McConnell, 858 S.W.2d at 341; see Dubose,
totally new cause of action with new and 117 S.W.3d at 920; D.M. Diamond Corp. v.
different elements to be an effective delay to a Dunbar Armored, Inc., 124 S.W.3d 655, 659-60
movant's motion for summary judgment. (Tex. App.—Houston [14th Dist.] 2003, no
pet.). In addition, the requirement that issues be
III. SUMMARY JUDGMENT RESPONSE expressly presented by written answer or
response refers to an answer or response to the
The non-movant must expressly present motion for summary judgment, not to the
to the trial court, by written answer or response, pleadings. See Wheeler v. Security State Bank,

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4828-7582-4199v.2 999997-1340
N.A., 159 S.W.3d 754, 756 n.2 (Tex. App.— movant); Modelist v. Deutsche Bank Nat'l Trust
Texarkana 2005, no pet.) (citing Clear Creek, Co., No. 14-10-00249-CV, 2011 Tex. App.
589 S.W.2d at 673). LEXIS 6789, 2011 WL 3717010, at *1, *3 (Tex.
App.—Houston [14th Dist.] Aug. 25, 2011, no
As shown below, however, where a pet.) (summarily affirming summary judgment
traditional summary judgment movant fails to on no-evidence grounds when movant filed
show that there is no genuine issue of material combined motion but non-movant failed to
fact, the nonmovant can argue that failure on respond); Burns v. Canales, No. 14-04-00786-
appeal even without a response on file in the CV, 2006 Tex. App. LEXIS 1551, 2006 WL
trial court. See M.D. Anderson Hosp. & Tumor 461518, at *3-6 (Tex. App.—Houston [14th
Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Dist.] Feb. 28, 2006, pet. denied) (affirming no-
As one court stated: “A motion for summary evidence summary judgment when non-movant
judgment must stand on its own merits, and the filed one-half-inch-thick stack of evidence but
nonmovant may argue on appeal that the page-and-a-half response which generally stated
movant's summary judgment proof is the attached evidence raised a fact issue but
insufficient as a matter of law, even if the failed to cite argument or specific evidence
nonmovant filed no response to the motion.” supporting challenged causes of action; "trial
Circle Ridge Prod. v. Kittrell Family Minerals, court is not required, sua sponte, to assume the
LLC, No. 06-13-00009-CV, 2013 Tex. App. role of [non-movant's] advocate and supply his
LEXIS 8790 (Tex. App.—Texarkana July 17, arguments for him").
2013, no pet. hist.).
IV. SUMMARY JUDGMENT REPLY
When a movant files a proper no-
evidence motion for summary judgment, the A summary judgment movant can file a
burden shifts to the respondent and unless the reply brief and argue why the non-movant did
respondent produces summary-judgment not raise a genuine issue of material fact. The
evidence raising a genuine issue of material fact, movant, however, cannot raise new summary
the trial court must grant the motion for judgment grounds in the reply brief. Ashton v.
summary judgment. TEX. R. CIV. P. 166a(i). To Koonsfuller, No. 05-16-00130-CV, 2017 Tex.
defeat a no-evidence motion for summary App. LEXIS 4293 (Tex. App.—Dallas May 10,
judgment, the non-movant need not marshal her 2017, no pet. history). A trial court should
evidence but must point out in her response ignore any new grounds asserted in a reply brief.
evidence raising a genuine issue of fact as to the Id. Further, an appellate court cannot affirm a
challenged elements. See cmt. TEX. R. CIV. P. summary judgment on a new ground asserted in
166a(i); Johnson v. Brewer & Pritchard, P.C., a reply brief. Id.
73 S.W.3d 193, 207 (Tex. 2002); see also
Transcon. Ins. Co. v. Briggs Equip. Trust, 321 The basis for this rule is that a motion
S.W.3d 685, 692 (Tex. App.—Houston [14th for summary judgment must "stand or fall on the
Dist.] 2010, no pet.) (holding non-movant's grounds expressly presented in the motion."
failure to respond to no-evidence motion was McConnell v. Southside Indep. Sch. Dist., 858
"fatal" to ability to successfully attack summary S.W.2d 337, 341 (Tex. 1993). A reply is not a
judgment on appeal); Dyer v. Accredited Home motion for summary judgment, and a movant "is
Lenders, Inc., No. 02-11-00046-CV, 2012 Tex. not entitled to use its reply to amend its motion
App. LEXIS 877, 2012 WL 335858, at *2-5. for summary judgment or to raise new and
(Tex. App.—Fort Worth Feb. 2, 2012, pet. independent summary-judgment grounds."
denied) (holding that trial court is not required to Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364,
review evidence presented by movant to support 378 (Tex. App.—Houston [14th Dist.] 2011, pet.
traditional portion of a combined motion for denied) (op. on reh'g).
summary judgment to determine whether that
evidence raises a fact issue on the no-evidence One court concluded that to permit new
ground, absent a timely response by non- grounds to be asserted in a reply would undercut

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the requirements of Texas Rule of Civil in whole. If the original ruling was a final
Procedure 166a(c): judgment, then the non-movant should be
careful to comply with the appellate deadlines
The purpose of the time and seek such relief while the trial court has
requirements in rule 166a(c), to plenary power. Otherwise, the trial court will
give the nonmovant notice of all lose its power to rescind its earlier ruling.
claims that may be summarily
disposed of and the specific One issue that arises is whether a party
grounds on which the movant can raise new arguments in a motion for
relies, would be severely reconsideration or motion for new trial. The
undercut if a movant's "reply" in Texas Supreme Court held that raising an
which new independent grounds argument or objection in a motion for new trial
were presented could be treated or reconsideration for the first time is not
as an amended motion for sufficient because all issues must be raised in the
summary judgment . . . . We response. Kelley-Coppedge, Inc. v. Highlands
believe . . . that allowing Ins., 980 S.W.2d 462, 467 (Tex. 1998) (party
arguments made in the movant's waived argument by asserting it in a motion for
reply to be considered, after the new trial after summary judgment); Tesoro
fact, as independent grounds for Petroleum Corp. v. Nabors Drilling United
summary judgment would States, 106 S.W.3d 118, n. 6 (Tex. App.—
subvert the orderly process Houston [1st Dist.] 2002, pet. denied)
contemplated by rule 166a and (arguments first raised in a motion for
put the nonmovant to an unfair reconsideration are waived).
burden.
Texas law also does not allow parties to
Sanders v. Capitol Area Council, 930 S.W.2d create fact issues in a motion for new trial or
905, 911 (Tex. App.—Austin 1996, no writ) (in reconsideration that should have been raised in
absence of nonmovant's consent, movant may response to a motion for summary judgment.
not raise a new ground for summary judgment in Denman v. Citgo Pipeline Co., 123 S.W.3d 728,
a reply to nonmovant's response). 734 (Tex. App.—Texarkana 2003, no pet.)
(appellate court could not consider evidence that
Authority would support a movant was attached to motion for reconsideration of
asserting new grounds in a reply brief where the summary judgment order, which had not been
nonmovant consents to same. Sanders, 930 previously filed, because there was no indication
S.W.2d at 911. in record that trial court had considered it);
Risner v. McDonald's Corp., 18 S.W.3d 903,
V. MOTION FOR NEW 909 (Tex. App.—Beaumont 2000, pet. denied)
TRIAL/RECONSIDERATION (party may not present additional evidence in a
motion for new trial unless such evidence is
A party may file a motion for new trial newly discovered); Priesmeyer v. Pacific Sw.
or reconsideration regarding a trial court’s ruling Bank, F.S.B., 917 S.W.2d 937, 939 (Tex. App.—
on a summary judgment. Of course, if the trial Austin 1996, no writ) (evidence attached for first
court originally denies the motion, such a ruling time to motion for new trial was not proper
is interlocutory and the movant can reurge its summary judgment evidence).
motion again at a later date. In that case, the trial
court can change its mind and later grant the It should be noted that a motion for new
motion. trial after a summary judgment is really just a
motion for reconsideration. Indeed, the party
If the trial court grants the motion, then never had a trial to begin with and could not be
the non-movant can request that the court awarded a “new trial.”
change its mind and deny the motion in part or

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VI. STANDARDS OF TRIAL COURT movant's right" to judgment. McConnell v.
REVIEW Southside Indep. Sch. Dist., 858 S.W.2d 337,
343 (Tex. 1993). Thus, a non-movant who fails
The parties must consider the trial to raise any issues in response to a summary
court’s standard of review in ruling on the judgment motion may still challenge, on appeal,
motion and response. "the legal sufficiency of the grounds presented
by the movant." Id.
A. Traditional Summary Judgment
A trial court may not grant a traditional
The traditional summary judgment summary judgment by default against the
movant moves for summary judgment as a nonmovant for failing to respond to the motion
matter of law under Texas Rule of Civil if the movant's summary judgment proof is
Procedure 166a(a) and (b). A party moving for legally insufficient to support the summary
traditional summary judgment meets its burden judgment; the movant must still establish his
by proving that there is no genuine issue of entitlement to judgment by conclusive summary
material fact and it is entitled to judgment as a judgment proof. See Rhone-Poulenc, Inc. v.
matter of law. First United Pentecostal Church Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); City
of Beaumont v. Parker, No. 15-0708, 2017 Tex. of Houston v. Clear Creek Basin Auth., 589
LEXIS 295 (Tex. March 17, 2017). It has the S.W.2d 671, 678 (Tex. 1979). See also Ellert v.
burden of production and persuasion in a Lutz, 930 S.W.2d 152, 155 (Tex. App.—Dallas
summary judgment proceeding, and the court 1996, no writ).
must resolve against the movant all doubts as to
the existence of a genuine issue of fact so that all If the movant does not meet his burden
evidence favorable to the nonmovant will be of proof, there is no burden on the nonmovant.
taken as true. See Provident Life Ins. Co. v. See Clear Creek Basin Auth., 589 S.W.2d at
Knott, 128 S.W.3d 211, 215-16 (Tex. 2003); 678-79. However, if the movant has established
Park Place Hosp. v. Estate of Milo, 909 S.W.2d a right to a summary judgment, the burden shifts
508, 510 (Tex. 1995); see also Kassen v. Hatley, to the nonmovant. See Katy Venture, Ltd. v.
887 S.W.2d 4, 8 n.2 (Tex. 1994). Further, the Cremona Bistro Corp., 469 S.W.3d 160, 163
court must indulge every reasonable inference in (Tex. 2015); Clarendon Nat'l Ins. Co. v.
favor of the nonmovant and resolve doubts in his Thompson, 199 S.W.3d 482, 486-487 (Tex.
favor. See Park Place Hosp., 909 S.W.2d at App.—Houston [1st Dist.] 2006, no pet.). The
510. nonmovant must then respond to the summary
judgment motion and present to the trial court
The nonmovant is not required to summary judgment evidence raising a fact issue
respond to the movant's motion if the movant that would preclude summary judgment. Id. If
fails to carry his or her burden. Amedisys, Inc. v. the non-movant does so, summary judgment is
Kingwood Home Health Care, LLC, 437 S.W.3d precluded. See Clarendon Nat'l Ins. Co. v.
507, 511-12 (Tex. 2014) (“[I]f the movant does Thompson, 199 S.W.3d at 486-487. If he does
not satisfy its initial burden, the burden does not not do so, then the trial court should grant
shift and the non-movant need not respond or summary judgment. Amedisys, Inc. v. Kingwood
present any evidence.”); State v. Ninety Home Health Care, LLC, 437 S.W.3d 507, 517
Thousand Two Hundred Thirty-Five Dollars and (Tex. 2014)
No Cents in U.S. Currency ($90,235), 390
S.W.3d 289, 292 (Tex. 2013); M.D. Anderson In Yancy v. United Surgical Partners
Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, International, Inc., the Texas Supreme Court
23 (Tex. 2000). This is because "summary stated that once the non-movant files evidence,
judgments must stand or fall on their own the reviewing court must consider all of the
merits, and the non-movant's failure to answer or evidence to determine if a reasonable juror could
respond cannot supply by default the summary find a fact issue: "When reviewing a summary
judgment proof necessary to establish the judgment, we 'must examine the entire record in

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4828-7582-4199v.2 999997-1340
the light most favorable to the nonmovant, when they are unliquidated. See TEX. R. CIV. P.
indulging every reasonable inference and 166a(a).
resolving any doubts against the motion.'" 236
S.W.3d 778, 782 (Tex. 2007). If the defendant asserts a counterclaim,
the trial court can grant a final summary
When both parties move for summary judgment for the plaintiff only if the plaintiff
judgment, each party must carry its own burden disproves at least one of the elements of the
as the movant. See Moayedi v. Interstate defendant's counterclaim in addition to
35/Chisam Rd., L.P., 438 S.W.3d 1, 4 (Tex. conclusively proving every element of his own
2014); Dallas County Cmty. College Dist. v. cause of action. See Schafer v. Federal Servs.
Bolton, 185 S.W.3d 868, 871 (Tex. 2005); Corp., 875 S.W.2d 455, 456 (Tex. App.—
Mead v. RLMC, Inc., No. 02-06-092-CV, 2007 Houston [1st Dist.] 1994, no writ). See also
Tex. App. LEXIS 2823 (Tex. App.—Fort Worth Adams v. Tri-Continental Leasing Corp., 713
April 12, 2007, pet. denied); James v. Hitchcock S.W.2d 152, 153 (Tex. App.—Dallas 1986, no
Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex. writ). Alternatively, the plaintiff may move for
App.—Houston [1st Dist.] 1987, writ denied). a partial summary judgment solely on the
Also, to win, each party must bear the burden of defendant's counterclaims. See Adams, 713
establishing that it is entitled to judgment as a S.W.2d at 153. If the plaintiff carries his burden
matter of law. See Guynes v. Galveston County, with respect to his motion for summary
861 S.W.2d 861, 862 (Tex. 1993). Each party judgment, the defendant, in order to defeat a
must also carry its own burden as the nonmovant summary judgment for the plaintiff, must either
in response to the other party's motion. See raise a fact issue about one of the elements of
James, 742 S.W.2d at 703. Further, when both the plaintiff's cause of action, create a fact
parties file motions for summary judgment, the question about each element of his affirmative
court may consider all of the summary judgment defense, or agree to the facts and show that the
evidence filed by either party. See law does not allow the plaintiff a recovery. See
Commissioners Court v. Agan, 940 S.W.2d 77, Brownlee v. Brownlee, 665 S.W.2d 111, 112
81 (Tex. 1997). See also Rose v. Baker & Botts, (Tex. 1984); Dillard v. NCNB Texas Nat'l Bank,
816 S.W.2d 805, 810 (Tex. App.—Houston [1st 815 S.W.2d 356, 360-61 (Tex. App.—Austin
Dist.] 1991, writ denied). 1991, no writ). See Hanssen v. Our Redeemer
Lutheran Church, 938 S.W.2d 85, 90-91 (Tex.
“When both parties move for summary App.—Dallas 1996, writ denied); Estate of
judgment and the trial court grants one motion Devitt, 758 S.W.2d 601, 603 (Tex. App.—
and denies the other, as in this case, we Amarillo 1988, writ denied).
determine all issues presented and render the
judgment the trial court should have rendered.” When the defendant moves for summary
Colo. Cnty. v. Staff, No. 15-0912, 2017 Tex. judgment, he must either disprove at least one
LEXIS 124, *16-17 (Tex. February 3, 2017). essential element of each theory of recovery
pleaded by the plaintiff, or he must plead and
When the plaintiff moves for summary conclusively prove each essential element of an
judgment on his own cause of action, he must affirmative defense. See Cantey Hanger, LLP v.
present competent summary judgment evidence Byrd, 467 S.W.3d 477, 481 (Tex. 2015); KCM
proving each element of his cause of action as a Fin. LLC v. Bradshaw, 457 S.W.3d 70 (Tex.
matter of law. See MMP Ltd. v. Jones, 710 2015); Friendswood Dev. Co. v. McDade & Co,
S.W.2d 59, 60 (Tex. 1986); see also Geiselman 926 S.W.2d 280, 282 (Tex. 1996); Doe v. Boys
v. Cramer Fin. Group, Inc., 965 S.W.2d 532, Club of Greater Dallas, Inc., 907 S.W.2d 472,
535 (Tex. App.—Houston [14th Dist.] 1997, no 476-77 (Tex. 1995).
writ). If the plaintiff meets his burden, the trial
court may grant a final summary judgment or In Roark v. Stallworth Oil & Gas, Inc.,
may grant a partial summary judgment on the Texas Supreme Court held that a plaintiff
liability alone, and hold a hearing on damages must except to the defendant's summary

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4828-7582-4199v.2 999997-1340
judgment motion to the trial court if he wants to See Fort Worth Osteopathic Hosp., Inc. v.
complain on appeal that the defendant's pleading Reese, 148 S.W.3d 94, 99 (Tex. 2004); Walmart
did not support the affirmative defense upon Stores v. Rodriguez, 92 S.W.3d 502 (Tex.
which the summary judgment was based. 813 2002); Robinson v. Warner-Lambert & Old
S.W.2d 492, 494-95 (Tex. 1991). The court Corner Drug, 998 S.W.2d 407 (Tex. App.—
stated, "if the non-movant does not object to a Waco 1999, no pet.); Lampasas v. Spring
variance between the motion for summary Center, Inc., 988 S.W.2d 428, 432 (Tex. App.—
judgment and the movant's pleadings, it would Houston [14th Dist.] 1999, no pet.). When a
advance no compelling interest of the parties or sufficient no-evidence motion is filed and
of our legal system to reverse a summary served, the various burdens are split – the burden
judgment simply because of a pleading defect." of production (burden to produce evidence) is
Id. at 495. placed on the non-movant, however, the burden
of persuasion (burden to persuade the court that
If the plaintiff does except to the no genuine issue of fact exists) is on the movant.
defendant's answer to the trial court, then the See David F. Johnson, Can A Party File a
defendant must only amend his answer and add No-Evidence Motion for Summary Judgment
the affirmative defense. If the defendant moves Based Upon an Inferential Rebuttal Defense? 53
for summary judgment on his own counterclaim BAYLOR L. REV. 762, 767-68 (2001). Under
rather than on a defensive claim, then he has the this standard, as the Supreme Court stated:
same burden as a plaintiff moving for a
summary judgment on his cause of action. See A motion for summary
Daniell v. Citizens Bank, 754 S.W.2d 407, 409 judgment must be granted if,
(Tex. 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 evidence creating a fact of one or more specified
question on those elements of the plaintiff's case elements of a claim or defense
under attack by the defendant, creating a fact on which the adverse party
question on at least one element of each would have the burden of proof
affirmative defense advanced by the defendant, at trial and the respondent
or conceding the material facts and showing that produces no summary judgment
the defendant's legal position is unsound. See evidence raising a genuine issue
Torres v. Western Cas. & Sur. Co., 457 S.W.2d of material fact on those
50, 52 (Tex. 1970). Maranatha Temple, Inc. v. elements.
Enter. Prods. Co., 893 S.W.2d 92, 97 (Tex.
App.—Houston [1st Dist.] 1994, writ denied). LMB, Ltd. v. Moreno, 201 S.W.3d 686, 687
(Tex. 2006). See also Sudan v. Sudan, 199
B. No-Evidence Motion S.W.3d 291 (Tex. 2006). A court must review
the summary judgment evidence in the light
The trial court's review of a no-evidence most favorable to the non-movant, disregarding
summary judgment filed under Texas Rule of all contrary evidence and inferences. See Timpte
Civil Procedure 166a(i) differs from that of a Indus. Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
traditional summary judgment. 2009); Walmart Stores v. Rodriguez, 92 S.W.3d
502 (Tex. 2002); Morgan v. Anthony, 27
1. Historical Standard S.W.3d 928, 929 (Tex. 2000). The inferences
that are in favor of the non-movant trump all
Under the no-evidence motion, the other inferences that may exist. See Orangefield
movant does not have the burden to produce I.S.D. v. Callahan & Assocs., No.
evidence; the burden is on the non-movant. The 09-00-171-CV, 2001 Tex. App. LEXIS 5066
no-evidence non-movant has the initial burden (Tex. App.—Beaumont July 26, 2001, no pet.)
to present sufficient evidence to warrant a trial. (not design. for pub.); Tucco Inc. v. Burlington

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4828-7582-4199v.2 999997-1340
Northern R.R. Co., 912 S.W.2d 311 (Tex. 166a(i), Texas courts have turned to federal law.
App.—Amarillo 1995), aff'd as modified, 960 See Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex.
S.W.2d 629 (Tex. 1997). App.—Houston [14th Dist.] 1998, no pet.).
Materiality is a criterion for categorizing factual
A no-evidence motion for summary disputes in relation to the legal elements of the
judgment must be granted if the respondent fails claim. The materiality determination rests on
to bring forth evidence to raise a genuine issue the substantive law and those facts that are
of material fact on the challenged element. First identified by the substantive law as critical are
United Pentecostal Church of Beaumont v. considered material. Stated differently, "[o]nly
Parker, No. 15-0708, 2017 Tex. LEXIS 295 disputes over facts that might affect the outcome
(Tex. March 17, 2017); KCM Fin. LLC v. of the suit under the governing law will properly
Bradshaw, 457 S.W.3d 70 (Tex. 2015); Fort preclude the entry of summary judgment."
Worth Osteopathic Hosp., Inc. v. Reese, 148 Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
S.W.3d at 99. If the nonmovant presents more 248, 91 L.Ed.2d 232, 106 S.Ct. 2595 (1986). A
than a scintilla of evidence to support the material fact issue is genuine if the evidence is
challenged ground, the court should deny the such that a reasonable jury could find the fact in
motion. See Forbes, Inc. v. Granada favor of the non-moving party. If the evidence
Biosciences, 124 S.W.3d 167, 172 (Tex. 2003); simply shows that some metaphysical doubt
King Ranch v. Chapman, 118 S.W.3d 742, 750 exists as to a challenged fact, or if the evidence
(Tex. 2003); Wal-Mart Stores, Inc. v. is not significantly probative, the material fact
Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A issue is not genuine.
genuine issue of material fact exists if the
nonmovant produces more than a scintilla of Both direct and circumstantial evidence
evidence establishing the existence of the may be used to establish any material fact. See
challenged element. See Ford Motor Co. v. Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex.
Ridgway, 135 S.W.3d 598 (Tex. 2004); Morgan 2001); Ford Motor Co. v. Ridgway, 135 S.W.3d
v. Anthony, 27 S.W.3d 928 (Tex. 2000). Less at 598. To raise a genuine issue of material fact,
than a scintilla of evidence exists when the however, the evidence must transcend mere
evidence is so weak as to do no more than create suspicion. See Ford Motor Co. v. Ridgway, 135
a mere surmise or suspicion of fact. See Special S.W.3d at 598. Evidence that is so slight as to
Car Servs. v. AAA Texas, Inc., No. 14-98-00628- make any inference a guess is in legal effect no
CV, 1999 Tex. App. LEXIS 4200 (Tex. App.— evidence. See id.
Houston [14th Dist.] June 3, 1999, no pet.) (not
design. for pub.); Medrano v. City of Pearsall, 2. City of Keller's Reasonable
989 S.W.2d 141, 143 (Tex. App.—San Antonio Juror Standard
1999, no pet.).
In 2005, the Texas Supreme Court
More than a scintilla of evidence exists revisited the no-evidence standard of review. In
when the evidence rises to a level that would City of Keller v. Wilson, the Court engaged in an
enable reasonable and fair minded people to extensive analysis of legal sufficiency
differ in their conclusions. See Ford Motor Co. principles. 168 S.W.3d 802 (Tex. 2005). The
v. Ridgway, 135 S.W.3d 598. On the other hand, Court found that the standard should remain the
if "the evidence offered to prove a vital fact is so same and does not change depending on the
weak as to do no more than create a mere motion in which it is asserted. See id. at 823.
surmise or suspicion of its existence, the "Accordingly, the test for legal sufficiency
evidence is no more than a scintilla and, in legal review should be the same for summary
effect, is no evidence." Ford Motor Co. v. judgments, directed verdicts, judgments
Ridgway, 135 S.W.3d at 598. notwithstanding the verdict, and appellate no-
evidence review." Id. That test is:
For clarification of the terms "genuine"
and "material fact," as they are used in Rule

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 The final test for legal as to what caused the plaintiff’s injury. See id.
sufficiency must always be
whether the evidence at trial Under the City of Keller, some of the
would enable reasonable and exceptions to the general rule, which requires
fair-minded people to reach the that evidence contrary to the non-movant's
verdict under review. Whether position be disregarded, are:
a reviewing court begins by
considering all the evidence or (1) contextual evidence –
only the evidence supporting the "The lack of supporting
verdict, legal-sufficiency review evidence may not
in the proper light must credit appear until all the
favorable evidence if reasonable evidence is reviewed in
jurors could, and disregard context;" Id. at 811.
contrary evidence unless
reasonable jurors could not. (2) competency evidence –
"Evidence that might be
Id. at 827. First United Pentecostal Church of 'some evidence' when
Beaumont v. Parker, No. 15-0708, 2017 Tex. considered in isolation
LEXIS 295 (Tex. March 17, 2017) (“A genuine is nevertheless rendered
issue of material fact exists if the evidence ‘rises 'no evidence' when
to a level that would enable reasonable and fair- contrary evidence
minded people to differ in their conclusions.’”). shows it to be
The evidence does not create an issue of incompetent;" Id. at
material fact if it is “so weak as to do no more 813.
than create a mere surmise or suspicion” that the
fact exists. Kia Motors Corp. v. Ruiz, 432 (3) circumstantial equal
S.W.3d 865, 875 (Tex. 2014). evidence – "When the
circumstances are
This standard shifts the review from a traditional equally consistent with
legal sufficiency review to a "reasonable juror" either of two facts,
standard. William V. Dorsaneo III, Evolving neither fact may be
Standards of Evidentiary Review: Revising the inferred.' In such cases,
Scope of Review, 47 S. TEX. L. REV. 225, 233-43 we must 'view each
(2005). For example, in Wal-Mart Stores, Inc. v. piece of circumstantial
Spates, the court set forth the standard of review evidence, not in
as: "We review a summary judgment for isolation, but in light of
evidence that would enable reasonable and fair all the known
minded jurors to differ in their conclusions." circumstances.'" Id. at
186 S.W.3d 566 (Tex. 2006); see also 813-14. ; and
Merriman v. XTO Energy, Inc., No. 11-0494,
2013 Tex. LEXIS 492 (Tex. 2013); Timpte (4) consciousness evidence
Indus. Inc. v. Gish, 286 S.W.3d at 310. – when reviewing
"consciousness
For example, in Hamilton v. Wilson, the evidence," a no
Texas Supreme Court reversed a no-evidence evidence review must
motion for summary judgment in a health care encompass "all of the
liability case where an expert’s opinion raised a surrounding facts,
material issue of genuine fact as to causation. circumstances, and
249 S.W.3d 425, 427 (Tex. 2008). The Court conditions, not just
held that the evidence could allow reasonable individual elements or
and impartial jurors to differ in their conclusions facts."

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Id. at 817-18. Accordingly, a court may not movant should be disregarded for all purposes.
disregard certain types of evidence when a There is language in opinions from the Eastland
reasonable juror could not do so – the scope of Court of Appeals that may support this view.
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-
movant, and that any evidence offered by the

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 Following Jacobo, several courts of therefore, we need not address
appeals similarly stated that they would ignore Space Place's second issue on
evidence that a movant attached or referred to in the merits.
its no-evidence motion for summary judgment
unless the evidence created a fact issue. See, SP Midtown, Ltd v. Urban Storage, L.P., 2008
e.g., Hernandez v. Select Med. Corp., 2013 Tex. Tex. App. LEXIS 3364 (Tex. App.—Houston
App. LEXIS 8930 (Tex. App.—Eastland July 14th Dist. May 8, 2008, no pet. hist.).
18, 2013, no pet. hist.); Davis v. Dillard's Dep't
Store, Inc., No. 11-06-00027-CV, 2008 Tex. A case from the Fourteenth Court of
App. LEXIS 3201 (Tex. App.—Eastland May 1, Appeals frames this exact issue. See Gallien v.
2008, no pet. hist.); Poteet v. Kaiser, 2007 Tex. Goose Creek Consol. Indep. Sch. Dist., 2013
App. LEXIS 9749, fn. 6 (Tex. App.—Fort Tex. App. LEXIS 2790 (Tex. App.—Houston
Worth Dec. 13, 2007, pet. filed); Southtex 66 [14th Dist.] Mar. 19, 2013, pet. dism.). The
Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. movant filed a dual traditional and no-evidence
App.—Houston [14th Dist.] 2007, pet. denied); motion that had evidence attached. See id. The
Dunlap-Tarrant v. Association Cas. Ins. Co., majority affirmed the no evidence summary
213 S.W.3d 452, 453 (Tex. App.—Eastland judgment because the nonmovant did not file a
2006, no pet.); DeLeon v. DSD Devel. Inc., response, and the court refused to review the
2006 Tex. App. LEXIS 7799 (Tex. App.— evidence attached to the motion. See id. A
Houston [1st Dist] August 31, 2006, pet. concurring justice disagreed with this approach
denied); Green v. Lowe's Home Centers, Inc., and argued that the court should have reviewed
199 S.W.3d 514, 518 (Tex. App.—Houston [1st the evidence attached to the motion to see if it
Dist.] 2006, pet denied); Seaway Prods. created a fact issue. See id.
Pipeline Co. v. Hanley, 153 S.W.3d 643, 650 n.7
(Tex. App.—Fort Worth 2004, no pet.). One Another case posits that a nonmovant
court stated thusly: can rely on the movants evidence to create a fact
issue only where the nonmovant files a response
In a no-evidence motion for and directs the trial court to the evidence. See
summary judgment, the non- Dyer v. Accredited Home Lenders, Inc., No. 02-
movant bears the burden of 11-0046-CV, 2012 Tex. App. LEXIS 877, 2012
producing competent summary WL 335858, at *3 (Tex. App.—Fort Worth Feb.
judgment evidence; therefore in 2, 2012, pet. denied). It held that a nonmovant
this case, Space Place bore the cannot rely on a movant’s evidence to create a
burden of producing proper fact issue where it did not file a response. See
summary judgment evidence, id. ("Although it appears to be a triumph of
not Midtown. See TEX. R. CIV. procedure over substance, we cannot create a
P. 166a(i). Pursuant to this rule, rule that the trial court disposing of a combined
we have not considered the motion has a duty to look at the traditional
evidence attached by Midtown summary judgment evidence to see if it defeats
in conjunction with its motion. the movant's right to no-evidence summary
See Southtex 66 Pipeline Co., judgment when the rules of procedure place the
Ltd. v. Spoor, 238 S.W.3d 538, burden on the nonmovant to produce
542 n.1 (Tex. App.—Houston evidence.").
[14th Dist.] pet. denied) (stating
even though the movant in a no- After the City of Keller opinion, one
evidence summary judgment commentator has argued that the scope of review
attached evidence, the appellate for a no-evidence motion has been expanded.
court did not consider the See Tim Patton, Standard and Scope of Review
evidence). As a result, Space Spotlight: "No-Evidence" Summary Judgment,
Place's objections to Midtown's 17th Annual Conference on State and Federal
evidence were irrelevant; Appeals, University of Texas School of Law,

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4828-7582-4199v.2 999997-1340
(June 1, 2007). In City of Keller, as shown although a reviewing court must
above, the Texas Supreme Court included a consider all the summary
lengthy discussion of the "contrary evidence that judgment evidence on file, in
cannot be disregarded" by the jury when some cases that review will
rendering verdict or by the appellate court when effectively be restricted to the
reviewing that verdict on no-evidence grounds. evidence contrary to the motion.
City of Keller, 168 S.W.3d at 810-18. Id.
Accordingly, the Court's categories concern not
only evidence that jurors must consider but also Courts of appeals have found that the
evidence a reviewing court should not disregard City of Keller opinion stands for the proposition
in conducting a legal sufficiency review. The that a party may not attach evidence to a no-
issue is whether a trial court can review evidence motion, and that if attached, it should
evidence filed by a no-evidence movant in not be considered. For example, in AIG Life
determining that the non-movant has no Insurance v. Federated Mutual Insurance Co.,
evidence to support a challenged element of its 200 S.W.3d 280, 283 (Tex. App.—Dallas 2006,
claim or defense. pet. denied) the court of appeals addressed
whether a vague motion was a traditional motion
In discussing the standards for a no or a no-evidence motion – or both. The court
evidence motion for summary judgment, one stated:
court cited City of Keller and stated: "We view
the evidence in the light most favorable to the The motions do not include a
non-movant, disregarding all contrary evidence standard of review and do not
and inferences, unless there is no favorable clearly delineate whether they
evidence or contrary evidence renders are traditional motions for
supporting evidence incompetent or conclusively summary judgment under Texas
establishes the opposite." Brent v. Daneshjou, Rule of Civil Procedure 166a(c)
No. 03-04-00225-CV, 2005 Tex. App. LEXIS or no-evidence motions for
9249 (Tex. App.—Austin Nov. 4, 2005, no pet.). summary judgment under Texas
This language would support the position that a Rule of Civil Procedure 166a(i).
court could look to "contrary evidence" to Attached to each motion was a
determine that the non-movant's evidence was substantial amount of summary
incompetent. See id. judgment evidence, indicating
the motions sought a traditional
In the City of Keller, however, the Court summary judgment. See City of
acknowledged that a party moving for summary Keller v. Wilson, 168 S.W.3d
judgment may not be able to take advantage of 802, 825, 48 Tex. Sup. Ct. J.
the expanded scope of review. 168 S.W.3d at 848 (Tex. 2005) (evidence
825. In a section of the opinion discussing how supporting motion not allowed
the no-evidence standard is the same no matter under rule 166a(i)).
how it is raised, the Court specifically excepted
summary judgment motions: The court concluded that the motion solely
sought traditional grounds.
In practice, however, a different
scope of review applies when a Similarly, in Mathis v. Restoration
summary judgment motion is Builders, Inc., the Fourteenth Court of Appeals
filed without supporting found that a reviewing court should only review
evidence. In such cases, the evidence attached to the non-movant's
evidence supporting the motion response:
is effectively disregarded
because there is none; under the However, per City of Keller,
rule, it is not allowed. Thus, although we "must consider all

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4828-7582-4199v.2 999997-1340
 the summary judgment evidence Id. at 581-82. In a per curiam opinion, the Court
on file, in some cases, that has reaffirmed that: "An appellate court
review will effectively be reviewing a summary judgment must consider
restricted to the evidence all the evidence…." Goodyear Tire & Rubber
contrary to the motion." Thus, Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007)
in this case, our review is (emphasis added). In Goodyear, the Court
limited to the evidence favoring reversed a court of appeals that disregarded
Mathis that was attached to the uncontroverted evidence in reversing a
Response to the Motions for traditional and no-evidence motion for summary
Summary Judgment, even judgment. See id. See also Gonzalez v.
though the body of Restoration's Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) “We
Motion for Summary Judgment, review the evidence presented by a no-evidence
which was both a traditional and motion for summary judgment and response "in
no-evidence motion, contained the light most favorable to the party against
testimony on which Restoration whom the summary judgment was rendered,
relied. crediting evidence favorable to that party if
reasonable jurors could, and disregarding
231 S.W.3d 47, 52 (Tex. App.—Houston [14th contrary evidence unless reasonable jurors could
Dist.] 2007, no pet.). not." (emphasis added); Boerjan v. Rodriguez,
436 S.W.3d 307, 311-12 (Tex. 2014).
However, the Texas Supreme Court
indicated that the enlarged scope of review may Generally, courts of appeals have cited
apply to no-evidence summary judgment to Mack Trucks and found that under the review
proceedings. In Mack Trucks, Inc. v. Tamez, of a no-evidence motion that the court of appeals
206 S.W.3d 572 (Tex. 2006) the Court held that must review the evidence attached to the motion
the plaintiff's expert testimony had been and response in the light most favorable to the
properly excluded, and therefore, a no-evidence non-movant. See, e.g., Anderson v. Limestone
motion for summary judgment was correctly County, No. 10-07-00174-CV, 2008 Tex. App.
granted on causation grounds. The Court LEXIS 5041 (Tex. App.—Waco July 2, 2008,
stated: no pet. hist.); Acad. of Skills & Knowledge, Inc.
v. Charter Sch., USA, Inc., No. 12-07-00027-
A summary judgment motion CV, 2008 Tex. App. LEXIS 4691 (Tex. App.—
pursuant to Tex. R. Civ. P. Tyler June 25, 2008, no pet. hist.); Abendschein
166a(i) is essentially a motion v. GE Capital Mortg. Servs., No. 10-06-00247-
for a pretrial directed verdict. CV, 2007 Tex. App. LEXIS 9761 (Tex. App.—
Once such a motion is filed, the Waco December 12, 2007, no pet.); Packwood
burden shifts to the nonmoving v. Touchstone Cmtys, No. 06-07-00020-CV,
party to present evidence raising 2007 Tex. App. LEXIS 7935 (Tex. App.—
an issue of material fact as to Texarkana October 5, 2007, no pet.); State v.
the elements specified in the Beeson, 232 S.W.3d 265 (Tex. App.—Eastland
motion. We review the 2007, pet. abated); Paragon General
evidence presented by the Contractors, Inc. v. Larco Constr., Inc., 227
motion and response in the light S.W.3d 876, 2007 Tex. App. LEXIS 4949 (Tex.
most favorable to the party App.—Dallas 2007, no pet.). These opinions,
against whom the summary however, merely state the rule as described in
judgment was rendered, Mack Trucks, and do not discuss the issue in any
crediting evidence favorable to depth.
that party if reasonable jurors
could, and disregarding contrary One exception is the Dallas Court of
evidence unless reasonable Appeals, which stated that with regards to a no-
jurors could not. evidence motion the "scope of our review

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includes both the evidence presented by the evidence. No. 15-0613, 2017 Tex. LEXIS 466
movant and the evidence presented by the (Tex. May 17, 2017). In this case, the plaintiffs
respondent." Highland Crusader Offshore asserted nuisance and trespass claims against the
Partners., L.P. v. Andrews & Kurth, L.L.P., 248 defendants due to a grouping of compressor
S.W.3d 887 (Tex. App.—Dallas 2008, no pet. stations. One defendant did not have a
hist.). Therefore, that court is using the compressor station; it had a metering station.
expanded City of Keller standard with regards to That defendant filed a dual motion, asserting
a no-evidence motion review. both traditional and no-evidence grounds, on the
issue that it was not the same as the other
Once again, in Mack Trucks, Inc. v. defendants and did not contribute to any of the
Tamez, the Texas Supreme Court stated "We complained-of activities. The Court referred to
review the evidence presented by the motion and evidence filed by the defendant showing that it
response in the light most favorable to the party solely had a metering station, it was a closed-in
against whom the summary judgment was system, and that it did not have any emissions or
rendered, crediting evidence favorable to that noise, and showed that the plaintiffs did not
party if reasonable jurors could, and present any evidence to establish that the
disregarding contrary evidence unless pipeline company (as opposed to the other
reasonable jurors could not." 206 S.W.3d 572, defendants) did anything wrong. Though there
582 (Tex. 2006). Therefore, it is clear under this was no express discussion by the Court
standard that if the non-movant attaches regarding the use of evidence filed by the
evidence that hurts its position to the point that a movant to support a no-evidence motion, the
reasonable juror could not disregard it, a Court did just that.
reviewing court can use that evidence to show
that there is no evidence. The issue is whether VII. TIMING ISSUES REGARDING
the reviewing court can also look to evidence MOTION, RESPONSE, REPLY AND
filed by the movant and use the same standard. HEARING
One commentator has noted that to enlarge the
scope of review to include both the movant's Timing issues are very important to
evidence and the nonmovant's evidence would consider in appealing a summary judgment.
be consistent with the practice in the federal Parties to a summary judgment are not entitled
court system. See Tim Patton, Standard and to a hearing. In re Am. Media Consol., 121
Scope of Review Spotlight: "No-Evidence" S.W.3d 70, 74 (Tex. App.—San Antonio 2003,
Summary Judgment, 17th Annual Conference on orig. proceeding). See also Martin v. Martin,
State and Federal Appeals, University of Texas Martin & Richards, Inc., 989 S.W.2d 357, 359
School of Law, (June 1, 2007) (citing Celotex (Tex. 1998). If there is no hearing, then the non-
Corp v. Catrett, 477 U.S. 317, 323 (1986); movant must be given notice of a submission
BRUNER & REDISH, SUMMARY JUDGMENT: date. The summary judgment motion must be
FEDERAL LAW & PRACTICE, § 5:7 (3d ed. served on the opposing party at least twenty-one
2006)). days before the hearing if a hearing is granted.
See TEX. R. CIV. P. 166a(c). Similarly, the
The Texas Supreme Court has never nonmovant must have twenty-one days notice of
really discussed this issue in depth. the hearing. See Lewis v. Blake, 876 S.W.2d
Accordingly, the issue of whether a court may 314, 315-16 (Tex. 1994). However, if the
review evidence attached to a no-evidence hearing is reset, the non-movant is not entitled to
motion in determining whether the non-movant's an additional twenty-one days notice before the
evidence raises a fact question for a reasonable reset date. See Birdwell v. Texins Credit Un.,
juror is still unresolved. Very recently, in City of 843 S.W.2d 246, 250 (Tex. App.—Texarkana
Dish v. Atmos Energy, the Court did not 1992, no writ). The notice must include the fact
expressly discuss the scope of review issue but that the hearing has been set, the date, and the
seemingly used evidence attached to a dual time for the hearing. See Mosser v. Plano Three
motion to show that the plaintiff had no Venture, 893 S.W.2d 8, 11 (Tex. App.—Dallas

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4828-7582-4199v.2 999997-1340
1994, no writ). Furthermore, one court has held 259 (Tex. App.—Texarkana 1995, no writ). The
that if the movant provides notice in a document party relying on the mail box rule has the burden
other than the motion itself, that the notice has to to establish its application. See Landers v. State
contain a certificate of service. See Tanksley v. Farm Lloyds, 257 S.W.3d 740, 745 (Tex.
CitiCapital Commercial Corp., 145 S.W.3d 760, App.—Houston [1st Dist.] 2008, no pet.)
763 (Tex. App.—Dallas 2004, pet. denied). (summary judgment was affirmed where
response was filed via the mail and did not
The day of service is not included in the establish the application of the mailbox rule).
twenty-one day period, but the day of the
hearing is included. See Lewis v. Blake, 876 The non-movant who uses the mail to
S.W.2d 314, 315-16 (Tex. 1994); Lee v. Palo file and serve his response does not have to add
Pinto County, 966 S.W.2d 83 (Tex. App.— three days to the seven day period pursuant to
Eastland 1998, pet. denied). Therefore, the Texas Rule of Civil Procedure 21a. See Lee v.
movant starts counting on the day after he files Palo Pinto County, 966 S.W.2d 83 (Tex. App.—
his no-evidence motion, and the hearing can be Eastland 1998, pet. denied); Holmes v. Ottawa
on the twenty-first day thereafter. Further, if Truck, Inc., 960 S.W.2d 866, 869 (Tex. App.—
service is completed by mail pursuant to Texas El Paso 1997, pet. denied). In essence, the
Rule of Civil Procedure 21a, the movant will timing sequence implemented by Rule 166a is
have to add three additional days to the twenty- designed to provide the non-movant with
one day period, which makes it a twenty-four fourteen days to review the summary judgment
day period. See Id. at 315. Therefore, if the motion and to serve a response. See Wilhite v.
movant serves the motion by use of the mail, the H.E. Butt Co., 812 S.W.2d 1, 3 (Tex. App.—
day after it is mailed is day one, and the hearing Corpus Christi 1991, no writ).
can be held on day twenty-four or later.
If the non-movant files its response late
The non-movant must file and serve the (within seven days of the hearing), it must
response, accompanying evidence or special receive written permission from the trial court or
exceptions or objections to the movant's no- else the response will not be before the court.
evidence motion not later than seven days before See INA of Texas v. Bryant, 686 S.W.2d 614,
the hearing. See McConnell v. Southside Indep. 615 (Tex. 1985); Lazaro v. University of Tex.
Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Health Science Ctr., 830 S.W.2d 330, 331-32
Crews v. Plainsman Trading Co., 827 S.W.2d (Tex. App.—Houston [14th Dist.] 1992, writ
455 (Tex. App.—San Antonio 1992, writ denied). If the record does not contain some
denied). The non-movant can file the response indication that the trial court granted leave to file
on the seventh day before the hearing – there the late response, the appellate court will assume
does not have to be seven full days. See Thomas that it was not before the trial court, and the non-
v. Medical Arts Hosp., 920 S.W.2d 815, 817-18 movant will waive all of his issues. See
(Tex. App.—Texarkana 1996, writ denied); Goswami v. Metropolitan S.&L. Ass'n, 751
Wright v. Lewis, 777 S.W.2d 520, 521 (Tex. S.W.2d 487, 490 n.1 (Tex. 1988); Waddy v. City
App.—Corpus Christi 1989, no writ); Benger of Houston, 834 S.W.2d 97, 101 (Tex. App.—
Builders, Inc. v. Business Credit Leasing, Inc., Houston [1st Dist.] 1992, writ denied).
764 S.W.2d 336, 338 (Tex. App.—Houston [1st Similarly, the non-movant must get the court's
Dist.] 1988, writ denied). Pursuant to Texas leave to file evidence within seven days of the
Rule of Civil Procedure 5, the non-movant can hearing, and if no written order appears in the
also use the mail to file his response, and if he record, the late-filed evidence will not be
does, it is considered timely filed on the day it is considered as being before the court. See
deposited in the mail so long as it reaches the Benchmark Bank v. Crowder, 919 S.W.2d 657,
clerk no more than ten days after it is due. See 663 (Tex. 1996). The best practice is for a non-
Geiselman v. Cramer Fin. Group, 965 S.W.2d movant to file a motion requesting leave to file
532 (Tex. App.—Houston [14th Dist.] 1997, no late-filed evidence with the evidence itself.
writ); Clendennen v. Williams, 896 S.W.2d 257, Further, the non-movant must be careful to have

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4828-7582-4199v.2 999997-1340
the trial court either sign a separate order Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.
allowing the requested leave, or have the order 1993).
granting or denying the no-evidence motion
state that the trial court allowed leave to file the Some courts have extended this three
evidence. See Daniell v. Citizens Bank, 754 day rule to objections to summary judgment
S.W.2d 407, 409 (Tex. App.—Corpus Christi evidence. However, other courts have not done
1988, no writ). so. For example in Grotjohn Precise
Connexiones Int'l v. JEM Fin. Inc., the court
If one of the parties desires to rely upon held that objections made for the first time at a
the mail box rule, it should be very careful to hearing were timely and that the trial court erred
make sure the record indicates how it served and in striking those objections due to timeliness:
filed the motion or response, and when it did so. "Because Grotjohn et al. filed their objections to
For example, in Derouen v. Wal-Mart Stores, the affidavits before the trial court rendered the
Inc., the record showed that the response was partial summary judgment, the objections were
filed six days before the summary judgment timely and the trial court erred in overruling
hearing and there was no indication of any leave them on the basis that they were not timely." 12
being granted for late filing. No. 06-06-00087- S.W.3d 859, 866 (Tex. App.—Texarkana 1999,
CV, 2007 Tex. App. LEXIS 569 (Tex. App.— no pet.). See also Reynolds v. Murphy, 188
Texarkana January 26, 2007, no pet.). The court S.W.3d 252, 259 (Tex. App.—Fort Worth 2005,
of appeals presumed that the non-movant filed pet. denied).
the response late due to the file date stamp on
the response and there being no other evidence Courts have held that an order granting
in the record indicating otherwise. See id. The summary judgment objections after the summary
court affirmed the summary judgment after not judgment order was signed did not preserve
finding any indication that the trial court granted error. See Choctaw Props. L.L.C. v. Aledo Ind.
the non-movant leave to late-file its response. Sch. Dist., 127 S.W.3d 235, 241 (Tex. App.—
See id. Accordingly, the author suggests that Waco 2003, no pet.). However, other courts
parties to a summary judgment proceeding have held that an order on objections can be
include a "Certificate of Filing and Service" and signed after a summary judgment order is
indicate in that certificate all facts necessary to signed. See Crocker v. Paulyne's Nursing
establish the applicability of the mail box rule Home, Inc., 95 S.W.3d 416, 421 (Tex. App.—
for the purposes of filing. Dallas 2002, no pet.). See also Dolcefino v.
Randolph, 19 S.W.3d 906, 926 (Tex. App.—
Lastly, the movant is entitled to file a Houston [14th Dist.] 2000, pet. denied). In
reply to the non-movant's response. However, Crocker v. Paulyne's Nursing Home, Inc., the
Rule 166a does not set forth any time party appealing a summary judgment argued that
requirements for filing a movant's reply based the movant waived its evidence objections by
solely upon legal arguments. See TEX. R. CIV. failing to obtain an express ruling until eighty-
P. 166A; Knapp v. Eppright, 783 S.W.2d 293, nine days after the court granted the summary
296 (Tex. App.—Houston [14th Dist. 1989, no judgment. 95 S.W.3d at 420-21. The court of
writ). The movant could file this reply the very appeals stated:
day of the hearing on his motion. See Knapp v.
Eppright, 783 S.W.2d at 296; Wright v. Lewis, In doing so, appellants confuse
777 S.W.2d 520, 522 (Tex. App.—Corpus a party's duty to preserve error
Christi 1980, no writ). However, if the movant with a trial court's authority to
raises any special exceptions to the non- rule on objections. The issue in
movant's response, it must file and serve those this case is not whether the
special exceptions not less than three days Rembrandt Center (which
before the hearing on his motion for summary obtained a favorable ruling in
judgment. See McConnell v. Southside Indep. the trial court) preserved its
complaint for appellate review.

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4828-7582-4199v.2 999997-1340
 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
days after the summary judgment, then later sua sponte grants it without
judgment was signed, was any notice, that is fine.
effective.
Finally, after the hearing, trial courts are
Id. at 421. The court held that so long as the widely recognized to have "considerable
ruling was made within the trial court's plenary discretion" in the time they take to issue a
period, the ruling was effective. Further, the summary judgment decision. See Bayou City
court in Dolcefino v. Randolph, held that there is Fish Co. v. S. Tex. Shrimp Processors, Inc.,
a presumption that a trial court rules on timely 2007 Tex. App. LEXIS 9148 (Tex. App.—
filed summary judgment objections before ruling Corpus Christi Nov. 20, 2007, no pet. h.); Zalta
on the motion, and that a party only has to have v. Tennant, 789 S.W.2d 432, 433 (Tex. App.—
these rulings expressed "near the time" that the Houston [1st Dist.] 1990, orig. proceeding)
trial court grants the motion or risk waiver. Id. (refusing to grant mandamus relief to relator
at 925, 926 n. 15. because the trial court's over one-year-long wait
to decide on a motion for summary judgment
A court can grant a motion for summary was not an abuse of discretion). However, one
judgment after initially denying it without court of appeals issued mandamus relief and
allowing the non-movant the further opportunity ordered a trial court to rule on a motion where a
to argue or present evidence. The general rule is no-evidence motion had been on file for eight
"[a] trial court may, in the exercise of discretion, months with no response and trial court refused
properly grant summary judgment after having to rule. See In re Mission Consolidated Indep.
previously denied summary judgment without a Sch. Dist., 990 S.W.2d 459, 461 (Tex. App.—
motion by or prior notice to the parties, as long Corpus Christi 1999, orig. proceeding).
as the court retains jurisdiction over the case."
H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d VIII. PRESERVATION OF ERROR
872, 877 (Tex. App.—Corpus Christi 1996, writ
denied). See also Roberts v. E. Lawn Mem. Park A party can win or lose an appeal
Cemetery, 2006 Tex. App. LEXIS 3183 (Tex. depending on whether an issue has been
App.—Fort Worth Apr. 20, 2006, no pet.). preserved for appellate review. Whether the
Citing this rule, one court stated: "a trial court's party is appealing an objection to summary
action when it considers a party's motion to judgment evidence, motion for continuance, or
reconsider the court's prior ruling on a motion motion for leave to file new evidence, the issue
for summary judgment is within the court's must be preserved.
discretion." Mendez v. San Benito/Cameron
County Drainage Dist. No. 3, 45 S.W.3d 746 A. Preserving Error On Grounds Asserted
(Tex. App.—Corpus Christi 2001, no pet.) In Denied Summary Judgment Motion
(affirmed trial court's granting of second
summary judgment on reconsideration). The denial of a motion for summary
judgment does not preserve any points raised in
For example, in Lindale Auto Supply v. that motion, thus the movant must re-urge those
Ford Motor Co., the court of appeals affirmed a issues at a latter point in the proceedings, i.e.,
trial court that granted a partial summary objections to the charge, motion for a directed
judgment (by a visiting judge), but then later verdict, or a motion for judgment
(without notice) withdrew that order and entered notwithstanding the verdict. See Wackenhut
the same summary judgment (by the active Corp. v. Gutierrez, 453 S.W.3d 917, 920 n. 3
judge). 1998 Tex. App. LEXIS 1564 (Tex. (Tex. 2015) (denied no-evidence motion for
App.—Houston [14th Dist.] March 12, 1998, no summary judgment did not preserve no-evidence
pet.). The nonmovant complained that he did objection to charge at trial); Fling v. Steed, No.

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4828-7582-4199v.2 999997-1340
07-99-0450-CV, 2001 Tex. App. LEXIS 1585 prepared and sent to the court of appeals if the
(Tex. App.—Amarillo March 12, 2001, pet. trial court made oral rulings on objections to
denied) (not desig. for pub.); Hines v. summary judgment evidence that are in the
Commission for Lawyer Discipline, 28 S.W.3d party's favor. A careful practitioner, however,
697, 700 (Tex. App.—Corpus Christi 2000, no should still have the trial court reduce all rulings
pet.); United Parcel Serv. Inc. v. Tasdemiroglu, on summary judgment evidence objections to
25 S.W.3d 914 (Tex. App.—Houston [14th writing as some courts are still citing old
Dist.] 2000, pet. denied). See also, Ackermann authority and requiring written rulings. See
v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. Crocker v. Paulyne's Nursing Home, Inc., 95
1966); Motor 9, Inc., v. World Tire Corp., 651 S.W.3d 416 (Tex. App.—Dallas 2002, no pet.).
S.W.2d 296, 299 (Tex. App.—Amarillo 1983,
writ ref'd n.r.e.). Additionally, Rule 33.1(a) states that in
order to preserve a complaint for appellate
B. 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
objection to the non-movant's evidence, the summary judgment evidence where trial court
movant must have obtained an express ruling on grants summary judgment motion); Trusty v.
his objections in a written order. See Utilities Strayhorn, 87 S.W.3d 756 (Tex. App.—
Pipeline Co. v. American Petrofina Mktg, 760 Texarkana September 13, 2002, no pet.);
S.W.2d 719, 723 (Tex. App.—Dallas 1988, no Clement v. City of Plano, 26 S.W.3d 544, 550
writ). Texas Rule of Appellate Procedure 33.1, n.5 (Tex. App.—Dallas 2000, no pet.),
however, now provides that a separate, signed disapproved on other grounds by Telthorster v.
order is no longer required to preserve an issue Tennell, 92 S.W.3d 457 (Tex. 2002); Dagley v.
for appellate review. Accordingly, a signed Haag Eng'g, 18 S.W.3d 787, 795 n.9 (Tex.
order should no longer be required to preserve App.—Houston 14th Dist.] 2000, no pet);
an objection to a non movant's evidence when Columbia Rio Grande Reg’l Hosp. v. Stover, 17
the trial court orally ruled on the objection and S.W.3d 387, 395-96 (Tex. App.—Corpus Christi
the ruling appears in the record. See Allen v. 2000, no pet); Williams v. Bank One, 5 S.W.3d
Albin, 97 S.W.3d 655 (Tex. App.—Waco 2002, 119, 114-15 (Tex. App.—Waco 1999, no pet);
no pet.); Columbia Rio Grande Regional Hosp. Frazier v. Yu, 987 S.W.2d 607, 609-10 (Tex.
v. Stover, 17 S.W.3d 387, 395 96 (Tex. App.— App.—Fort Worth 1999, no pet.); Blum v.
Corpus Christi 2000, no pet.) (error is preserved Julian, 977 S.W.2d 819, 823 (Tex. App.—Fort
if the reporter's record of the summary judgment Worth 1998, no pet.). Under this standard, in
hearing shows that the trial court announced an granting a summary judgment motion, a trial
oral ruling on the objection). Therefore, a party court implicitly sustains the movant's objections
should request that the reporter's record be to evidence that, if considered, would create a

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4828-7582-4199v.2 999997-1340
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
Med. Ctr., 109 S.W.3d 838, 842-43 (Tex. Judgments in Texas, 47 SOUTH TEXAS L. REV.
App.—Dallas 2003, no pet.); Sunshine Mining 409, 447-48 (2006) ("There is dispute among the
& Ref. Co. v. Ernst & Young, L.L.P., 114 courts of appeals concerning what constitutes an
S.W.3d 48 (Tex. App.—Eastland June 12, 2003, implicit holding, and even if an objection may
no pet.); Wilson v. Thomason Funeral Home, be preserved under Texas Rule of Civil
Inc., No. 03-02-00774-CV, 2003 Tex. App. Procedure 33.1(a)(2)(a) by an implicit ruling.");
LEXIS 6358 (Tex. App.—Austin July 24, 2003, Judge David Hittner & Lynee Liberato,
no. pet.); Allen v. Albin, 97 S.W.3d 655 (Tex. Summary Judgments in Texas, 54 BAYLOR L.
App.—Waco 2002, no pet.); Jones v. Ray Ins. REV. 1, n. 194 (2006); Omar Kilany & Prescott
Agency, 59 S.W.3d 739, 752-53 (Tex. App.— Scot, Implied Rulings on Summary Judgment
Corpus Christi 2001, pet. denied); Rogers v. Objections: Preservation of Error and Appellate
Continental Airlines, Inc., 41 S.W.3d 196, 200 Rule 33.1(a)(2)(A), 15 APPELLATE ADVOCATE
(Tex. App.—Houston [14th Dist.] 2001, no ST. B. TEX. APPELLATE SEC. REP. 4 (2002)
pet.); Ball v. Youngblood, 2001 Tex. App. (published online at www.tex-app.org); David
LEXIS 5660 (Tex. App.—Dallas 2001, no pet.) F. Johnson, The No-Evidence Summary
(not desig. for pub.); Chapman Children's Trust Judgment In Texas, 52 BAYLOR L. REV. 930,
v. Porter & Hedges, L.L.P., 32 S.W.2d 429, 966 (2000); Charles Frazier, et. al., Recent
435-36 (Tex. App.—Houston [14th Dist.] 2000, Development: Celotex Comes To Texas: No-
pet. denied); Well Solutions, Inc. v. Stafford, 32 Evidence Summary Judgments And Other Recent
S.W.3d 313, 316-17 (Tex. App.—San Antonio Developments In Summary Judgment Practice,
2000, pet. denied); Hou-Tex., Inc. v. Landmark 32 TEX. TECH. L. REV. 111, 132 (2000). See

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4828-7582-4199v.2 999997-1340
also WILLIAM V. DORSANEO, TEXAS objection was meritorious and whether the
LITIGATION GUIDE: APPELLATE REVIEW, § evidence should be considered.
145.03[2][a] (2007); MCDONALD & CARLSON,
TEXAS CIVIL PRACTICE, § 18.20 (2nd Ed. Supp. Notwithstanding, until the Texas
2007); MICHOL O'CONNOR, O'CONNOR'S Supreme Court clears this confusion, a cautious
TEXAS RULES, CIVIL TRIAL, 499-500 (2007) party will request express rulings, and submit
(five courts find that there can be implicit proposed rulings on summary judgment
rulings, eight courts find that there cannot be evidence in either a separate order or a the order
implicit rulings – some of the courts from both granting a summary judgment. Further, if the
groups are the same); Tim Patton, Selected trial court still refuses to rule, the party should
Unsettled Aspects of Summary Judgment object to the trial court’s failure to rule. See
Practice and Procedure, 2-5, ADVANCED CIVIL TEX. R. APP. P. 33.1(a)(2)(B); Allen v. Albin, 97
TRIAL COURSE, (State Bar of Texas 2003). S.W.3d 655 (Tex. App.—Waco 2002, no pet.).

Take the Fort Worth Court of Appeals C. Preserving Error Regarding Objections
for an example. In Blum v. Julian, the court held To The Non-Disclosure of Experts
that when a trial court granted a motion for
summary judgment, an inference was created There was a split in the intermediate
that the trial court implicitly overruled the non- courts of appeals regarding whether an
movant's objections to the movant's evidence. undesignated expert can provide evidence in a
977 S.W.2d 819, 823 (Tex. App.—Fort Worth summary judgment proceeding. Most of the
1998, no pet.). Similarly, in Frazier v. Yu, the appellate courts addressing whether the
court held an order granting a summary discovery rules apply in a summary judgment
judgment implicitly sustained the movant's case have applied the revised discovery rules to
objections to the non-movant's evidence. 987 summary judgments. See Thompson v. King,
S.W.2d 607, 610-11 (Tex. App.—Fort Worth No. 12-06-00059-CV, 2007 Tex. App. LEXIS
1999, no pet.). 2768 (Tex. App.—Tyler April 11, 2007, pet.
denied); F.W. Industries, Inc. v. McKeehan, 198
But, later, the court reversed course. In S.W.3d 217 (Tex. App.—Eastland 2005, no
Wrenn v. GATX Logistics, Inc., the court limited pet.); Cunnigham v. Columbia/St. David's
Frazier to the facts of that case because the trial Healthcare System, L.P., 185 S.W.3d 7,10 (Tex.
court stated that it reviewed the "competent" App.—Austin 2005, no pet.); Villegas v. Texas
evidence in the order, and held that when the Dept. of Transp., 102 S.W.3d 26 (Tex. App.—
record does not indicate that the trial court San Antonio 2003, pet. denied); Ersek v. Davis
expressly ruled on the objections, they are & Davis, P.C., 69 S.W.3d 268, 273 (Tex.
waived. 73 S.W.3d 489, 498 (Tex. App.—Fort App.—Austin 2002, pet denied).
Worth 2002, no pet.). Most recently, in Mead v.
RLMC, Inc., the court completely retreated from Other courts had found that the
Frazier, holding that even when the trial court's discovery rules do not apply to summary
summary judgment order expressly states that it judgment proceedings, and that a trial court
considered the "competent" evidence, the cannot strike an undesignated or
movant's objections are waived. 225 S.W.3d underdesignated expert. See, e.g., Alaniz v.
710 (Tex. App.—Fort Worth 2007, pet. denied). Hoyt, 105 S.W.3d 330, 340 (Tex. App.—Corpus
Christi 2003, no pet.); Johnson v. Fuselier, 83
It is judicially inefficient for an S.W.3d 892, 897 (Tex. App.—Texarkana 2002,
appellate court to reverse a trial court's summary no pet.).
judgment, which is otherwise correct, because
the trial court failed to expressly rule on proper In Chau v. Riddle, the court of appeals
objections to otherwise incompetent evidence. affirmed a trial court's striking of expert
A court of appeals should analyze whether the evidence. Chau v. Riddle, 2008 Tex. LEXIS
453 (Tex. 2008). Even though the Texas

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4828-7582-4199v.2 999997-1340
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
D. 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 S.W.2d 909, 912 (Tex. App.—Fort Worth 1992,
Tex. App. LEXIS 4813 (Tex. App.—Houston writ denied).
[1st Dist.] June 5, 2003, no pet.); Sparks v.
Butler Mfg. Co., No. 05-99-00115-CV, 1999 The motion for continuance must have
Tex. App. LEXIS 8731 (Tex. App.—Dallas affidavits or sworn testimony to prove up all
November 22, 1999, no pet.) (not desig. for factual allegations. See TEX. R. CIV. P. 166a(g);
pub.); Flores v. Snelling, No. 06-98-00046, Casey v. Interstate Building Maintenance, Inc.,
1999 Tex. App. LEXIS 7009 (Tex. App.— No. 03-99-00524-CV, 2000 Tex. App. LEXIS
Texarkana September 14, 1999, no pet.) (not 2555 (Tex. App.—Austin April 20, 2000, no
desig. for pub.); Hopkins v. Keuhm, No. 03-98- pet.) (not desig. for pub.); Crow v. Rockett
00514-CV, 1999 Tex. App. LEXIS 5923 (Tex. Special Util. Dist., 17 S.W.3d 320 (Tex. App.—
App.—Austin August 12, 1999, no pet.) (not Waco 2000, pet. denied). The safest practice is
desig. for pub.); Jamies v. Fiesta Mart, Inc., No. to request a hearing and present sworn proof as
01-98-00754-CV, 1999 Tex. App. LEXIS 4553 to the need for a continuance following the
(Tex. App.—Houston [1st Dist.] June 17, 1999, above listed requirements. See Roob v. Von
no pet.) (not desig. for pub.); but see Kesyler v. Bergshasy, 866 S.W.2d 765, 766 (Tex. App.—
Menil Med. Ctr. of E. Tex., 105 S.W.3d 122 n. Houston [1st Dist.] 1993, writ denied).
10 (Tex. App.—Corpus Christi 2003, no pet.).
When the non-movant files a motion for Lastly, courts have ruled differently on
continuance in order to collect more evidence, whether a non-movant has to get an express
the motion should meet the requirements for ruling by the court on a motion in order to

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4828-7582-4199v.2 999997-1340
preserve error. Compare Williams v. Bank One, F. Preserve Complaint Regarding Notice of
15 S.W.3d 110 (Tex. App.—Waco 1999, no Hearing
pet.) (Under new Texas Rule of Appellate
Procedure 33.1, a non-movant does not have to If the movant did not provide the non-
have an express ruling on the trial court's denial movant with twenty-one days notice of the
of his motion for continuance to preserve error, hearing, the non-movant should file an objection
and the trial court's granting of the summary and a motion for continuance based on the
judgment and holding of hearing is an implicit untimely notice. The non-movant will waive
overruling of the non-movant's motion); and any objection to the faulty notice if he fails to
Casey v. Interstate Building Maintenance, Inc., object to it in a timely fashion after he has
No. 03-99-00524-CV, 2000 Tex. App. LEXIS knowledge of the improper notice. See Ajibaou
2555 (Tex. App.—Austin April 20, 2000, no v. Edinburg Gen. Hosp., 22 S.W.3d 37 (Tex.
pet.) (not desig. for pub.) (party must object to App.—Corpus Christi 2000, pet. filed); Veal v.
the court's failure to rule or waive error); Veterans Life Ins. Co., 767 S.W.2d 892, 895
Washington v. Tyler ISD, 932 S.W.2d 686, 690 (Tex. App.—Texarkana 1989, no writ). This
(Tex. App.—Tyler 1996, no writ) (decided objection should be made before the hearing, but
under the former Texas Rule of Appellate the latest the non-movant can raise it is in a
Procedure 52(g), which required an 'express' motion for new trial. See Nickerson v. E.I.L.
ruling). However, the safest course is to always Instr., Inc., 817 S.W.2d 834, 835-36 (Tex.
get an express ruling or object to the court's App.—Houston [1st Dist. 1991, no writ). All
failure to rule. that is required is that the non-movant formally
object and present proof that he did not receive
E. Preserve Complaint Regarding proper notice. See Guinn v. Zarsky, 893 S.W.2d
Opponent's Failure to Produce Evidence 13, 17 (Tex. App.—Corpus Christi 1994, no
in Discovery writ). Once again, the safest practice is to
request a hearing and present sworn proof as to
If a non-movant needs discovery from the lack of notice. See Roob v. Von Bergshasy,
the movant in order to respond to the movant's 866 S.W.2d 765, 766 (Tex. App.—Houston [1st
motion for summary judgment, he should: (1) Dist.] 1993, writ denied).
file a motion to compel, (2) set a hearing, and
(3) get the trial court’s ruling before the hearing Whether error is preserved depends on
on the no-evidence motion. See Anderson v. the circumstances of when notice was actually
T.U. Elec., No. 05-99-01255-CV, 2000 Tex. received. If a party receives notice that is
App. LEXIS 2878 (Tex. App.—Dallas May 3, untimely but sufficient to enable the party to
2000, no pet.) (not desig. for pub.); Casey v. attend the summary judgment hearing, a party
Interstate Building Maintenance, Inc., No. 03- must file a motion for continuance and/or raise
99-00524-CV, 2000 Tex. App. LEXIS 2555 the complaint of late notice in writing, supported
(Tex. App.—Austin April 20, 2000, no pet.) (not by affidavit evidence. See Fertic v. Spencer,
desig. for pub.). But the non-movant can still 247 S.W.3d 242, 248 (Tex. App.—El Paso
file a motion for continuance because a trial 2007, pet. denied). However, if a party receives
court will not err in granting a properly filed, no notice of the summary judgment hearing or is
valid motion despite outstanding discovery deprived of its right to seek leave to file
issues. The filing of a motion to compel can additional affidavits or other written responses,
also be a factor in a court of appeals the error may be preserved in a post-trial motion.
determination of whether there was an adequate See id.
time for discovery. See Hayes v. Woods, No.
05-001121, 2001 Tex. App. LEXIS (Tex. G. Preserving Right To Correct Defects In
App.—Dallas June 29, 2001, no pet.) (not desig. Evidence
for pub.).
A trial court should give the non-movant
an opportunity to correct any defects that the

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4828-7582-4199v.2 999997-1340
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.). Moreover, a court does not need to
have the "opportunity" to allow a party the chance to amend evidence to
amend. A defect is substantive correct an error of substance. See Olsen v.
if the summary judgment proof Comm’n for Lawyer Discipline, 347 S.W.3d
is incompetent; it is formal if 876, 885 (Tex. App.—Dallas 2011, pet. denied).
the summary judgment proof is
competent, but inadmissible. IX. FINALITY OF SUMMARY
JUDGMENT ORDERS
Tri-Steel Structures, Inc. v. Baptist Foundation,
166 S.W.3d 443, 448 (Tex. App.—Fort Worth The first step in appealing a summary
2005, pet. denied). judgment is determining whether the order is a
final judgment that can be appealed. Generally,
For example, in Keeton v. Carrasco, the Texas appellate courts may review only final
defendant objected to the summary judgment judgments, and there can be only one final
use of an expert affidavit on the day of the judgment in any case. See Colquitt v. Brazoria
summary judgment hearing. 53 S.W.3d 13, 22 County, 324 S.W.3d 539 (Tex. 2010); Cherokee
(Tex. App.—San Antonio 2001, pet. denied). At Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.
the summary judgment hearing, the plaintiffs 1985). Further, an appellate court must
tendered an amended expert affidavit to the trial determine if it has jurisdiction to review an
court, but the trial court denied them leave to file appeal, even if it must be done sua sponte. See
the amended report. Id. The appellate court New York Underwriters Ins. Co. v. Sanchez, 799
reversed, holding that the trial court should have S.W.2d 677, 678 (Tex. 1990); see also Di
given the plaintiffs the opportunity to amend Ferrante v. Georgiades, No. 14 96-01199-CV,
their expert's affidavit. Id. at 23. See also 1997 WL 213844, at *6 (Tex. App.—Houston
Garcia v. Willman, 4 S.W.3d 307, 311 (Tex. [14th Dist.] May 1, 1997, writ denied) (not
App.—Corpus Christi 1999, no pet.); Wyatt v. designated for publication); Welch v. McDougal,
McGregor, 855 S.W.2d 5 (Tex. App.—Corpus 876 S.W.2d 218, 220 (Tex. App.—Amarillo
Christi 1993, writ denied). 1994, writ denied). If an appellate court rules
without jurisdiction to do so, then any judgment
The non-movant will need to ask for a entered by the appellate court is void and of no
continuance to get additional time to correct effect. See Di Ferrante, 1997 WL 213844, at *2
errors in his response or evidence. See Marty's n.2; see also Johnson v. State, 747 S.W.2d 568,
Food & Wine v. Starbuck Corp., No. 569 (Tex. App.—Houston [14th Dist.] 1988, no
05-01-00008-CV, 2002 Tex. App. LEXIS 7672 writ).
(Tex. App.—Dallas October 28, 2002, no pet.)
(not desig. for pub.); Brown v. Wong, No. 05- A judgment rendered after a trial on the
99-00706-CV, 2000 Tex. App. LEXIS 2632 merits is presumed final and appealable, even

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4828-7582-4199v.2 999997-1340
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.
S.W.3d 839, 840 (Tex. 2009) (per curiam). For
example, summary judgments are not afforded The Texas Supreme Court reversed the
the finality presumption; rather, they are judgment of the court of appeals. See id. at 590.
presumed to be interlocutory and not appealable. The court stated:
See Hood v. Amarillo Nat'l Bank, 815 S.W.2d
545, 547 (Tex. 1991). Ordinarily, the order If a summary judgment order
granting summary judgment must expressly appears to be final, as evidenced
dispose of all parties and all issues in the case in by the inclusion of language
order for it to be a final, appealable judgment. purporting to dispose of all
See Continental Airlines, Inc. v. Kiefer, 920 claims or parties, the judgment
S.W.2d 274, 27677 (Tex. 1996); Park Place should be treated as final for
Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 purposes of appeal. If the
(Tex. 1995); Mafrige v. Ross, 866 S.W.2d 590, judgment grants more relief
591 (Tex. 1994). If the order does not dispose than requested, it should be
of all issues and all parties, it normally will be reversed and remanded, but not
considered interlocutory and not appealable. See dismissed. . . . Litigants should
Park Place Hosp., 909 S.W.2d at 510; see also be able to recognize a judgment
Mafrige, 866 S.W.2d at 591. which on its face purports to be
final, and courts should be able
A. Mafrige v. Ross, 866 S.W.2d 590 (Tex. to treat such a judgment as final
1993). for purposes of appeal.

A problem arises when a trial court's Id. at 592.

order does not expressly dispose of all issues
and parties but includes a Mother Hubbard The Court reversed and remanded the
clause. "A Mother Hubbard clause generally case for further proceedings on the merits
recites that all relief not expressly granted is because the trial court's order was final and the
denied." Mafrige, 866 S.W.2d at 590 n.1. Is the plaintiffs correctly appealed it. See id. Further,
order final and appealable, which starts the the court held that if the Mother Hubbard
appellate timetable running, or is the order language in a summary judgment order has the
interlocutory? effect of granting more relief than was
requested, the appellate court should reverse and
In Mafrige v. Ross, the trial court remand the summary judgment, but not dismiss
granted several of the defendant's summary the appeal. See id. If the plaintiffs had failed to
judgment motions. 866 S.W.2d at 590-91. In timely appeal the apparently interlocutory
each of the orders, the trial court used essentially summary judgment order, they would have lost
the following language, "It is . . . therefore, their appeal. The Mother Hubbard language
ORDERED, ADJUDGED and DECREED that turned what clearly appeared to be an
the Motion for Summary Judgment of Defendant interlocutory judgment into a final, appealable
. . . should in all things be granted and that one.
Plaintiff . . . take nothing against Defendant." Id.
(alteration in original). The plaintiffs appealed The Texas Supreme Court reinforced
the summary judgments and argued that they Mafrige and its bright line rule in Inglish v.

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4828-7582-4199v.2 999997-1340
Union State Bank, 945 S.W.2d 810, 811 (Tex. or essentially those words –
1997). The court ruled that a summary judgment does not indicate that a
was final because it included Mother Hubbard- judgment without a
type language, which purported to be final. See conventional trial is final for
id. The court stated, "to avoid waiver, [the purposes of appeal. We
plaintiff] was required either to ask the trial overrule Mafrige to the extent is
court to correct the first summary judgment states otherwise.
while the court retained plenary power or to
perfect a timely appeal of that judgment." Id. at 203-04. Accordingly, Mother Hubbard
Inglish, 945 S.W.2d at 811. Since the plaintiff language like "all relief not expressly granted is
did neither, the court of appeals had no denied" no longer makes an otherwise
jurisdiction to decide the merits of the appeal. interlocutory order final and appealable. See id.
See Inglish, 945 S.W.2d at 811. The Court See also Parking Company of America, Fort
dismissed the plaintiff's appeal, reversed the Worth, Inc. v. Wilson, 58 S.W.3d 742 (Tex.
judgment of the court of appeals, and rendered 2001); Bobbitt v. Strain, 52 S.W.3d 734 (Tex.
judgment dismissing the appeal for want of 2001); Clark v. Pimienta, 47 S.W.3d 485 (Tex.
jurisdiction. See Inglish, 945 S.W.2d at 811. 2001); Guajardo v. Conwell, 46 S.W.3d 862
(Tex. 2001). The Court stated that language
B. Reversal of Mafrige such as "this judgment finally disposes of all
parties and all claims and is appealable" is
In 2001, the Texas Supreme Court unmistakably clear and does make an order final
reversed Mafrige and held that Mother Hubbard and appealable even if the order does not
language did not make an otherwise dispose of all parties and all claims. Lehmann,
interlocutory judgment a final appealable 39 S.W.3d at 206. But where the order does not
judgment. See Lehmann v. HarCon Corp., 39 contain finality language, state that it is a final
S.W.3d 191, 195 (Tex. 2001). The Court stated: order, or dispose of all claims and parties, then it
is not final and appealable. See Bison Bldg.
[I]n cases in which only one Materials, Ltd v. Aldridge, 2012 Tex. LEXIS
final appealable judgment can 642 (Tex. 2012).
be rendered, a judgment issued
without a conventional trial is Since Lehman, the Texas Supreme
final for purposes of appeal if Court has continued to discuss finality of
and only if either it actually summary judgment orders. In Farm Bureau
disposes of all claims and County Mutual Insurance Company v. Rogers,
parties then before the court, the Texas Supreme Court held that a summary
regardless of its language, or it judgment was not final because it did not resolve
states with unmistakable clarity a claim for attorney’s fees. 455 S.W.3d 161
that it is a final judgment as to (Tex. 2015). “[W]e agree with Rogers that the
all claims and all parties. order at issue here did not dispose of all parties
and claims, because neither the language taxing
Id. at 192-93. Apparently, the Court found that court costs nor the Mother Hubbard clause
Mother Hubbard language, in general, did not disposed of the parties' claims for attorney's
state "with unmistakable clarity" that the fees.” Id. The Court went on to state:
judgment was final:
Mother Hubbard clauses do not,
Much confusion can be on their face, implicitly dispose
dispelled by holding, as we now of claims not expressly
do, that the inclusion of a mentioned in the order,
Mother Hubbard clause – by including claims for attorney's
which we mean the statement, fees. Instead, there must be
"all relief not granted is denied," evidence in the record to prove

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4828-7582-4199v.2 999997-1340
 the trial court's intent to dispose American Express complains
of any remaining issues when it that the judgment, if not
includes a Mother Hubbard corrected, will give Daredia a
clause in an order denying windfall, but being given the
summary judgment. To hold relief an opponent requests can
otherwise would simply hardly be considered a windfall.
resurrect the issues we put to Further, had American Express
rest in Lehmann and McNally, acted promptly in pursuing its
albeit in a slightly different claim against Daredia, before
form. and after suit, counsel's error in
allowing the claim to be
Id. at 164. dismissed could have been
rectified, either by timely
In In re Daredia, a plaintiff obtained a moving to reinstate the case, or
default judgment against one defendant that perhaps by refiling the lawsuit.
contained a statement that it disposed of all We conclude that the trial court
parties and all claims and was final. 317 S.W.3d clearly abused its discretion in
247 (Tex. 2009). The judgment was not final, setting aside a judgment after its
however, because there was another defendant in plenary power expired. Daredia
the suit. More than fifteen months after the has no adequate remedy at law.
default, the plaintiff attempted to file a motion
for judgment nunc pro tunc to correct Id. at 249. Compare Crites v. Collins, 284
“typographical errors” and clarify that it was S.W.3d 839, 840 (Tex. 2009) (per curiam) (order
interlocutory. After the trial court granted the from nonsuit was not final where no statement
motion, the defendant filed a petition for writ of of finality and where sanctions claim was still
mandamus, arguing that the judgment was final pending).
and ended the litigation. The Texas Supreme
Court agreed with the defendant, stating: In Ford v. Exxon Mobil Chemical
Company, the Court found that a summary
But the lack of any basis for judgment order was final even though it awarded
rendering judgment against a lump sum and did not itemize every element of
Daredia did not preclude damages:
dismissing him from the case.
Even if dismissal was ExxonMobil argues that the
inadvertent, as American undisputed summary judgment
Express insists, it was evidence established attorney's
nonetheless unequivocal, and fees of $36,167 and expert fees
therefore effective. American of $1,500, and that the trial
Express complains that the trial court's award of precisely
court never made a substantive $36,167 means it adjudicated
disposition of its claims against only the former. But the award
Daredia, but dismissal is not a was a lump sum that did not
ruling on the merits. We specify what it was for; that it
conclude that the judgment by may have been incorrect if it did
its clear terms disposed of all not include both fees does not
claims and parties and was mean it was interlocutory. We
therefore final. have never held that an order
disposing of all claims can be
.... final only if it itemizes each and
every element of damages
pleaded. Similarly, a summary

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4828-7582-4199v.2 999997-1340
 judgment order clearly Sabre Oil & Gas Corp. v. Gibson, 72 S.W.3d
disposing of a suit is final even 812 (Tex. App.—Eastland 2002, pet. denied).
if it does not break down that
ruling as to each element of In McNally, the defendants filed a
duty, breach, and causation. motion for summary judgment but failed to
Accordingly, we hold this order request summary judgment on their
granting a lump sum for all counterclaim for attorney's fees. McNally v.
Ford's claims is final. Guevara, 52 S.W.3d 195, 196 (Tex. 2001).
Although the trial court's order granted the
235 S.W.3d 615 (Tex. 2007). motion and taxed court costs against the
plaintiff, the Texas Supreme Court concluded
In In re Burlington Coat Factory that "[n]othing in the trial court's judgment,
Warehouse of McAllen, Inc., the Court found other than its award of costs to the defendants,
that a default judgment was interlocutory suggests that it intended to deny the defendants'
because it did not address the plaintiff's claim claim for attorney fees. The award of costs, by
for punitive damages. 167 S.W.3d 827 (Tex. itself, does not make the judgment final." Id.
2005). Interestingly, the default judgment had The Court held that the resolution of a claim for
statements about issuing writs and executing on court costs did not dispose of a claim for
the judgment that would indicate it was intended attorney's fees and did not serve as an indicium
to be a final judgment. But the Court found that of finality. See id.
this was not sufficient to make it final: "We
cannot conclude that language permitting The following provisions are sufficient
execution 'unequivocally expresses' finality in to be unmistakably clear that the order is
the absence of a judgment that actually disposes intended to be final and appealable:
of all parties and all claims." Id. at 830.
1) judgment stated, in part, “that
In M.O. Dental Lab v. Rape, the Court plaintiff take nothing against defendants by its
found that a summary judgment order was final suit” and taxed costs against the parties; Texas
where it stated only that "[n]o dangerous Integrated Conveyor Syhs. Inc. v. Innovative
condition existed" and defendant "committed no Conveyor Concepts, Inc., 300 S.W.3d 348,
acts of negligence." 139 S.W.3d 671, 674-75 375076 (Tex. App.—Dallas 2009, pet. denied);
(Tex. 2004). In Ritzell v. Espeche, the Court
concluded that the summary judgment order was 2) judgment that stated that “This is a
final where it stated that the plaintiff take Final Judgment of the court disposing of all
nothing, and found that the order was incorrectly parties and claims,” was final; Rehab 2112,
granted but final. 87 S.W.3d 536 (Tex. 2002). L.L.C. v. Audio Images Int’l Inc., 168 SW.3d
See also Jacobs v. Satterwhite, 65 S.W.3d 653 308, 311 (Tex. App.—Dallas 2005, no pet.);
(Tex. 2001).
3) judgment disposes of "all claims"
The courts of appeals have taken heed of between the only existing parties; Lopez v.
Lehmann and have held that Mother Hubbard Yates, No. 14-01-00649-CV, 2002 Tex. App.
language, alone, is not sufficient to make an LEXIS 8229 (Tex. App.—Houston [14th Dist.]
order final and appealable. See Phillips v. November 21, 2002, no pet.) (not designated for
Baker, No. 14-02-01099-CV, 2002 Tex. App. publication);
LEXIS 8568 (Tex. App.—Houston [14th Dist.]
December 5, 2002, no pet.) (not designated for 4) judgment disposes of all of the
publication); Yazdchi v. Bennett Law Firm, No. plaintiff's claims and the defendant's "various
14-01-00928, 2002 Tex. App. LEXIS 3973 counterclaims”; Clark v. Bula, No. 05-01-
(Tex. App.—Houston [14th Dist.] May 30, 00887-CV, 2002 Tex. App. LEXIS 4548 (Tex.
2002, no pet.) (not designated for publication); App.—Dallas June 26, 2002, no pet.) (not
designated for publication);

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4828-7582-4199v.2 999997-1340
 5) judgment stated "all issues and S.W.3d 862 (Tex. 2001), but see Lopez v. Sulak,
matters between [the parties] have been decided, 76 S.W.3d 597 (Tex. App.—Corpus Christi
and that this Order constitutes a final judgment;" 2002, no pet). The fact that an order awards
Arredondo v. City of Dallas, 79 S.W.3d 657 n.7 costs does not, in and of itself, make the order
(Tex. App.—Dallas 2002, pet denied); final and appealable. See Lehmann v. HarCon
Corp., 39 S.W.3d at 205; City of Houston v.
6) judgment stated "[the court] is of the Houston Firemen's Relief & Ret. Fund, No. 01-
opinion that the Motions for Summary Judgment 02-00739, 2002 Tex. App.—LEXIS 2119 (Tex.
should be granted as to all claims asserted by App.—Houston [1st Dist.] March 21, 2002, no
Plaintiff;" Alashmawi v. IBP, Inc., 65 S.W.3d pet.) (not designated for publication). If the
162 (Tex. App.—Amarillo 2001, pet. denied); court of appeals is still uncertain as to the
finality of the judgment, it can abate the appeal
7) judgment stated that the "Judgment and remand the case to the trial court for
on all claims is entered in favor of Defendant;" clarification. See Lehmann v. HarCon Corp., 39
Murphy v. Gulf States Toyota, Inc., No. 01-00- S.W.3d at 205-06; see e.g., Vansteen Marine
00740-CV, 2001 Tex. App. LEXIS 3774 (Tex. Supply, Inc. v. Twin City Fire Ins. Co., No. 14-
App.—Houston [1st Dist.] June 7, 2001, no pet) 01-00901-CV, 2002 Tex. App. LEXIS 7612
(not designated for publication); and (Tex. App.—Houston [14th Dist.] October 24,
2002, pet. denied) (not designated for
8) judgment stated that "[a]s a result of publication) (court of appeals reviewed
the other orders signed on this date, this is a final reporter's record to determine finality); Walker
judgment." Capstead Mortgage Corp. v. Sun v. City of Georgetown, 86 S.W.3d 249 (Tex.
America Mortgage Corp., 45 S.W.3d 233 (Tex. App.—Austin 2002, pet denied).
App.—Amarillo 2001, no pet.).
Most importantly, if a judgment does
But courts of appeals have also held that not dispose of all claims or parties, but it
language that is very similar to, or is, Mother erroneously states that it does, it starts the
Hubbard language is also unmistakably clear appellate deadlines anyway. See Lehmann v.
under the facts and circumstances of those cases. HarCon Corp., 39 S.W.3d at 204, see also
See Hodde v. Portanova, No. 14-99-00656-CV, Ritzell v. Espeche, 87 S.W.3d 536 (Tex. 2002);
2001 Tex. App. LEXIS 1505 (Tex. App.— Kleven v. Texas Dept. of Crim. Justice –
Houston [14th Dist.] 2001, no pet. ) (not Institutional Div., 69 S.W.3d 341, 343-44 (Tex.
designated for publication) ("[plaintiffs] take App.—Texarkana 2002, no pet.); Haas v.
nothing by their action,"); Morales v. Craig, George, 71 S.W.3d 904 (Tex. App.—Texarkana
No. 03-99-00553-CV, 2001 Tex. App. LEXIS 2002, no pet). For example, if a defendant files
3724 (Tex. App.—Austin June 7, 2001, no pet.) a motion for summary judgment on one of four
(not designated for publication) (take nothing claims raised by the plaintiff, and the trial court
language and Mother Hubbard language was grants the motion and signs a judgment that
sufficient to constitute final judgment). states that it is final and that the plaintiff takes
nothing, the judgment is erroneous but final and
In determining whether a judgment is appealable. See Lehmann v. HarCon Corp., 39
final, an appellate court should look to the four S.W.3d at 204.
corners of the judgment and also to the appellate
record to determine the claims asserted, the If the appellant does not file a notice of
claims addressed by the judgment, and the appeal from a judgment that purports to be final,
claims intended to be addressed. See Lehmann though it is actually not, the judgment still
v. HarCon Corp., 39 S.W.3d at 205-06. But a becomes final and un-appealable. But if that
trial court cannot make an order final by signing purportedly final judgment is appealed, and after
a subsequent order (a clarification order) that reviewing the record the appellate court
states that the prior order was final and determines that it is not a final judgment, then
appealable. See Guajardo v. Conwell, 46 the appellate court will either dismiss the appeal

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4828-7582-4199v.2 999997-1340
or abate the appeal and remand the case to the Ford Motor Co., 135 S.W.3d at 600. If the non-
trial court to determine whether to render a final movant fails to meet its burden under the no-
judgment. See, e.g., Bobbitt v. Stran, 52 S.W.3d evidence motion, there is no need to address the
734, 735 (Tex. 2001) (affirmed dismissal of challenge to the traditional motion as it
appeal); McNally v. Guevara, 52 S.W.3d 195, necessarily fails. Merriman v. XTO Energy, Inc.,
196 (Tex. 2001) (remanded to court of appeals 407 S.W.3d 244, 248 (Tex. 2013). “Any claims
to determine whether to abate appeal). that survive the no-evidence review will then be
reviewed under the traditional standard.” First
If a summary judgment is not final, a United Pentecostal Church of Beaumont v.
trial court may make it final by severing the Parker, 2017 Tex. LEXIS 295at *9.
claims or parties resolved by the order from
other pending claims or parties. See Doe I v. B. Traditional Summary Judgment
Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82
(Tex. 2007). It should be noted, however, that if Appellate review of a trial court's
the severance is contingent on some future summary judgment ruling is de novo. See
event, it may not create a final order. See id. Laverie v. Wetherbe, No. 15-0217, 2017 Tex.
LEXIS 359 (Tex. April 7, 2017); Cantey
X. STANDARDS OF APPELLATE Hanger, LLP v. Byrd, 467 S.W.3d 477, 481
REVIEW (Tex. 2015); Merriman v. XTO Energy, Inc., 407
S.W.3d at 248; Shivers v. Texaco Exploration &
A. Order Of Review Prod., 965 S.W.2d 727, 730 (Tex. App.—
Texarkana 1998, pet. denied). The appellate
When a party moves for both traditional court may look only to evidence that was
and no-evidence summary judgments, an presented to the trial court. See H.S.M.
appellate court should first consider the no- Acquisitions, Inc. v. West, 917 S.W.2d 872, 877-
evidence motion. First United Pentecostal 78 (Tex. App.—Corpus Christi 1996, writ
Church of Beaumont v. Parker, No. 15-0708, denied); see also E.B. Smith Co. v. United States
2017 Tex. LEXIS 295 (Tex. March 17, 2017); Fidelity & Guar. Co., 850 S.W.2d 621, 624
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, (Tex. App.—Corpus Christi 1993, writ denied);
600 (Tex. 2004). The Texas Supreme Court Totman v. Control Data Corp., 707 S.W.2d 739,
stated as follows regarding review of a dual 742-43 (Tex. App.—Fort Worth 1986, no writ).
motion for summary judgment: The Totman court stated:

The non-movants, here the The question on appeal is not

plaintiffs, must produce whether the summary judgment
summary judgment evidence proof presented raises material
raising a genuine issue of fact issues with regard to the
material fact to defeat the essential elements of a cause of
summary judgment under that action or defense, but whether
provision. A genuine issue of the evidence presented to the
material fact exists if more than trial court establishes, as a
a scintilla of evidence matter of law, no genuine
establishing the existence of the material fact issue exists as to
challenged element is produced. one or more of the essential
If the plaintiffs fail to produce elements of plaintiff's cause of
more than a scintilla of evidence action.
under that burden, then there is
no need to analyze whether Id. at 742. The question on appeal, as well as in
Ford's proof satisfied the Rule the trial court, is whether the movant has
166a(c) burden. established that there is no genuine issue of
material fact and that the movant is entitled to

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4828-7582-4199v.2 999997-1340
judgment as a matter of law. See TEX. R. CIV. P. (Tex. App.—San Antonio 2002, no pet.); Hight
166a(c); see also Randall's Food Mkts., Inc. v. v. Dublin Veterinary Clinic, 22 S.W.3d 614
Johnson, 891 S.W.2d 640, 644 (Tex. 1995); (Tex. App.—Eastland 2000, pet denied); Shull
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 v. UPS, 4 S.W.3d 46 (Tex. App.—San Antonio
(Tex. 1991); Nixon v. Mr. Property 1999, pet. denied); see also, Sarah B. Duncan,
Management Co., 690 S.W.2d 546, 548 (Tex. No-Evidence Motion for Summary Judgment:
1985). Harmonizing Rule 166a(i) and its Comments, 41
S. TEX. L. REV. 873, 907 (2000).
C. No-Evidence Summary Judgment
Other courts, however, have determined
There has been some confusion and that a no-evidence motion should have a legal
disagreement about the appropriate standard of sufficiency standard of review — the same as
review over a no-evidence motion for summary the review over a directed verdict motion. See
judgment. Some appellate courts hold that a See Merriman v. XTO Energy, Inc., No. 11-
no-evidence motion should have a de novo 0494, 2013 Tex. LEXIS 492, *5 (Tex. 2013);
standard of review just like a traditional motion King Ranch v. Chapman, 118 S.W.3d 742, 750
for summary judgment. See Valence Operating (Tex. 2003); Texas Integrated Conveyor Syhs.
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. Inc. v. Innovative Conveyor Concepts, Inc., 300
2005); Joe v. Two Thirty Nine J.V., 145 S.W.3d S.W.3d 348, 375076 (Tex. App.—Dallas 2009,
150 (Tex. 2004); DTND Sierra Invs., LLC v. pet. denied); Butler v. McDonald’s Corp., No.
Deutsche Bank Nat'l Trust Co., 2013 Tex. App. 11-05-00323-CV, 2007 Tex. App. LEXIS 64
LEXIS 10460 (Tex. App.—San Antonio Aug. (Tex. App.—Eastland January 5, 2007, no pet.);
21, 2013, no pet. hist.); Simulis, L.L.C. v. GE Ross v. Womack, No. 13-04-571-CV, 2006 Tex.
Capital Corp., 2008 Tex. App. LEXIS 2731 App. LEXIS 10656 (Tex. App.—Corpus Christi
(Tex. App.—Houston [14th Dist.] Apr. 17, December 14, 2006, no pet.); Entravision
2008, no pet.); Baize v. Scott & White Clinic, Communs. Corp. v. Belalcazar, 99 S.W.3d 393
No. 03-05-00780-CV, 2007 Tex. App. LEXIS (Tex. App.—Corpus Christi 2003, pet. denied);
366 (Tex. App.—Austin January 22, 2007, pet. Diversified Fin. Sys. v. Hill, 99 S.W.3d 349
denied); Diaz v. Goodman Manf. Co., L.P., 214 (Tex. App.—Fort Worth 2003, no pet.); DRC
S.W.3d 672 (Tex. App.—Houston [14th Dist.] Parts & Accessories, L.L.C v. VM Mortori,
2007, pet. denied); In re Estate of Wallace, No. S.P.A., No. 14-01-00507-CV, 2002 Tex. App.
04-05-00567-CV, 2006 Tex. App. LEXIS 10603 LEXIS 7431 (Tex. App.—Houston [14th Dist.]
(Tex. App.—San Antonio December 13, 2006, October 17, 2002, no pet.); Trevino v. Goss, No.
no pet.); Aiken v. Hancock, 115 S.W.3d 26 03-01-0521-CV, 2002 Tex. App. LEXIS 4462
(Tex. App.—San Antonio 2003, pet. denied); (Tex. App.—Austin June 21, 2002, pet. denied)
Leonard v. Coastal States Crude Gathering Co., (not desig. for pub.); Lattrell v. Chrysler Corp.,
No. 04-02-00238, 2003 Tex. App. LEXIS 4094 79 S.W.3d 141 (Tex. App.—Texarkana 2002,
(Tex. App.—San Antonio May 14, 2003, pet. pet. denied); Morris v. JTM Materials, Inc., 78
denied); Jones v. City of Hitchcock, No. S.W.3d 28 (Tex. App.—Fort Worth 2002, no
01-02-00676-CV, 2003 Tex. App. LEXIS 3353 pet.); Two Thirty Nine Joint Venture v. Joe, 60
(Tex. App.—Houston [1st Dist.] April 17, 2003, S.W.3d 896, 904 (Tex. App.—Dallas 2001, pet
pet. denied); Kesyler v. Menil Med. Ctr. of E. denied); Vargas v. KKB Inc., 52 S.W.3d 250,
Tex., 105 S.W.3d 122 (Tex. App.—Corpus 254 (Tex. App.—Corpus Christi 2001, pet
Christi 2003, no pet.); Taub v. Aquila Southwest denied); General Mills Rest., Inc. v. Texas
Pipeline Corp., 93 S.W.3d 451 (Tex. App.— Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.
Houston [14th Dist.] October 17, 2002, no pet.); App.—Dallas 2000, no pet.); Gomez v. Tri-City
United Plaza-Midland v. Chase Bank of Tex. County Hosp., Ltd., 4 S.W.3d 281, 283 (Tex.
N.A., No. 14-01-0210-CV, 2002 Tex. App. App.—San Antonio 1999, no pet.); Zapata v.
LEXIS 6030 (Tex. App.—Houston [14th Dist.] Children's Clinic, 997 S.W.2d 745, 747 (Tex.
June 6, 2002, no pet.) (not desig. for pub.); App.—Corpus Christi 1999, pet. denied); Roth
Delgado v. Jim Wells County, 82 S.W.3d 640 v. FFP Operating Partners, 994 S.W.2d 190,

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4828-7582-4199v.2 999997-1340
195 (Tex. App.—Amarillo 1999, pet. denied); prove a vital fact is no more than a mere
Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex. scintilla, or (d) the evidence conclusively
App. —Austin 1998, no pet.); see also Mack establishes the opposite of the vital fact.’”
Trucks v. Tamez, 206 S.W.3d 572 (Tex. 2006). Southwestern Bell Tel., L.P. v. Emmett, 459
S.W.3d 578, 589 (Tex. 2015) (quoting King
One court has even held in the same Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
case that the standard of review over a (Tex. 2003)).
no-evidence motion is the same as a directed
verdict (legal insufficiency) and that the Accordingly, the distinction between
standard is de novo. See Allen v. Albin, 97 standards is really without a difference because
S.W.3d 655 (Tex. App.—Waco 2002, no pet.); both standards provide that a court should
Dodd v. City of Beverly Hills, 78 S.W.3d 509, review the evidence in the light most favorable
512 (Tex. App.—Waco 2002, pet. denied). And to the non-movant and that the motion should be
at least one court has acknowledged the differing granted only if no more than a scintilla of
standards of review between a traditional and a evidence is produced to support the claim or
no-evidence motion. See Logsdon v. Miller, No. defense. See Ellis v. McKinney, No. 01-00-0198,
03-01-00575-CV, 2002 Tex. App.-LEXIS 2055 2001 Tex. App. LEXIS 7715 n. 2 (Tex. App.—
(Tex. App.—Austin March 21, 2002, pet. Houston [1st Dist.] November 15, 2001, pet.
denied) (not desig. for pub.). denied) (not desig. for pub.). In the Author’s
view, the courts that hold that the standard of
The courts that favor the de novo review is legal sufficiency are basically just
standard hold that the better approach is to skipping a step.
review no-evidence motions "in the same
manner as any other 166a summary judgment is D. Harmless Error Standard
reviewed," as there is "no reason to engage in
analogies [to directed verdict practice] when we Due to the requirement that a summary
already have in place a standard of review by judgment motion contain express grounds, an
which to review most summary judgments." appellate court cannot review other grounds to
Hight v. Dublin Veterinary Clinic, 22 S.W.3d at sustain a summary judgment. Ineos USA, LLC v.
614. The Authors agree that the standard of Elmgren, 505 S.W.3d 555, 566 (Tex. 2016). The
review over a no-evidence motion should be the Court stated:
same as a traditional motion — de novo. The
standard of review determines how much We decline the invitation to
deference a court of appeals gives to the trial expand the harmless-error rule
court's determination. In the no-evidence to summary-judgment appeals
summary judgment context, that deference is in the manner Pavlovsky
zero — the court of appeals looks at the motion, requests. "Summary judgments .
response, and evidence as if it were the first . . may only be granted upon
court reviewing them. grounds expressly asserted in
the summary judgment motion."
In exercising its de novo standard of Because Pavlovsky did not
review, the court of appeals sits in the same assert his no-duty argument as a
position as the trial court and reviews the ground for summary judgment,
evidence under a legal sufficiency standard. the trial court could not have
“Where a no-evidence motion for summary erred by not granting summary
judgment is granted, … a reviewing court will judgment on that ground.
sustain the summary judgment if ‘(a) there is a
complete absence of evidence of a vital fact, (b) Id. at 566.
the court is barred by rules of law or of evidence
from giving weight to the only evidence offered However, an appellate court may review
to prove a vital fact, (c) the evidence offered to other grounds asserted that may resolve an

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4828-7582-4199v.2 999997-1340
unaddressed claim. G&H Towing Co. v. Magee, 2007 Tex. App. LEXIS 5173 (Tex. App.—
347 S.W.3d 293 (Tex. 2011). The Court stated: Houston [14th Dist.] July 3, 2007, pet. denied);
First Select Corp. v. Grimes, No. 2-01-257-CV,
The harmless error rule states 2003 Tex. App. LEXIS 604 (Tex. App. —Fort
that before reversing a judgment Worth January 23, 2003, no pet.); Carter v.
because of an error of law, the MacFaddyen, 93 S.W.3d 307 (Tex. App. —
reviewing court must find that Houston [14th Dist.] August 8, 2002, pet.
the error amounted to such a denied); Restaurant Teams International, Inc. v.
denial of the appellant's rights MG Securities Corp., 93 S.W.3d 336 (Tex.
as was reasonably calculated to App.—Dallas June 18, 2002, no pet.); Dickson
cause and probably did cause Const. v. Fidelity & Deposit Co., 5 S.W.3d 353,
"the rendition of an improper 357 (Tex. App.-Texarkana 1999, pet. denied).
judgment," or that the error
"probably prevented the Trial court rulings concerning the
appellant from properly admission or exclusion of summary judgment
presenting the case [on appeal]." evidence are reviewed under an abuse of
The rule applies to all errors. discretion standard. See Sanders v. Shelton, 970
Although a trial court errs in S.W.2d 721 (Tex. App.—Austin 1998, writ
granting a summary judgment denied); Su Inn v. University of Texas at
on a cause of action not Arlington, 984 S.W.2d 672 (Tex. App.—
expressly presented by written Amarillo 1998, writ denied); Lergva v. Soltero,
motion, we agree that the error 966 S.W.2d 765, 768 (Tex. App.—El Paso
is harmless when the omitted 1998, no writ). Further, a trial court's ruling on
cause of action is precluded as a a motion for continuance is reviewed under an
matter of law by other grounds abuse of discretion standard. See State v. Crank,
raised in the case. 666 S.W.2d 91, 94 (Tex. 1984). In Joe v. Two
Thirty Nine J.V., the Texas Supreme Court
Id. at 297-98. See also Zarzosa v. Flynn, 266 provided the appellate standard of review for an
S.W.3d 614, 621 (Tex. App.—El Paso 2008, no order denying a motion for continuance from a
pet.) (holding reversal would be meaningless summary judgment hearing:
because questioned recovery precluded as a
matter of law); Withrow v. State Farm Lloyds, The trial court may order a
990 S.W.2d 432, 437-38 (Tex. App.— continuance of a summary
Texarkana 1999, pet. denied) (same); Vogel v. judgment hearing if it appears
Travelers Indem. Co., 966 S.W.2d 748, 754-55 "from the affidavits of a party
(Tex. App.—San Antonio 1998, no pet.) (same); opposing the motion that he
Cissne v. Robertson, 782 S.W.2d 912, 918 (Tex. cannot for reasons stated present
App.—Dallas 1989, writ denied) (same). by affidavit facts essential to
justify his opposition." When
E. Standards of Review Over Adequate reviewing a trial court's order
Time For Discovery, Evidence denying a motion for
Objections, And Motions For continuance, we consider
Continuance whether the trial court
committed a clear abuse of
A trial court's determination on whether discretion on a case-by-case
there has been an adequate time for discovery is basis. A trial court abuses its
reviewed under an abuse of discretion standard discretion when it reaches a
because that determination encompasses a decision so arbitrary and
balancing and weighing of factors that is best unreasonable as to amount to a
left in the discretion of the trial court. See clear and prejudicial error of
McLendon v. Detoto, No. 14-06-00658-CV, law. We have considered the

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4828-7582-4199v.2 999997-1340
 following nonexclusive factors in the opposing motions and to render the
when deciding whether a trial judgment the trial court should have rendered.
court abused its discretion in See Merriman v. XTO Energy, Inc., No. 11-
denying a motion for 0494, 2013 Tex. LEXIS 492, *5 (Tex. 2013);
continuance seeking additional Progressive Cnty. Mut. Ins. Co. v. Kelley, 284
time to conduct discovery: the S.W.3d 805, 806 (Tex. 2009) (per curiam).
length of time the case has been
on file, the materiality and It is important to note in this
purpose of the discovery sought, circumstance that if the party whose summary
and whether the party seeking judgment motion was denied appeals only the
the continuance has exercised trial court's granting of his opponent's motion,
due diligence to obtain the the appellate court can only reverse the summary
discovery sought. judgment and remand the case to the trial court.
See City of Denison v. Odle, 808 S.W.2d 153,
145 S.W.3d 150, 161 (Tex. 2004). A party 156-57 (Tex. App.—Dallas 1991), rev'd on
moving for a continuance from a summary other grounds, 833 S.W.2d 935 (Tex. 1992). If
judgment should keep this standard in mind. the appellant wants the appellate court to reverse
his opponent's summary judgment and at the
XI. APPEAL OF DENIAL OF SUMMARY same time render and grant appellant's summary
JUDGMENT MOTION judgment, he must appeal not only the trial
court's granting of the opponent's summary
Generally, a party cannot appeal a trial judgment, but also the denial of his summary
court's denial of a summary judgment motion judgment motion. See id. See also Grainger v.
because the order is interlocutory. See Lancer Western Cas. Life Ins. Co., 930 S.W.2d 609, 614
Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d (Tex. App.—Houston [1st Dist.] 1996, writ
50 (Tex. 2011); Novak v. Stevens, 596 S.W.2d denied).
848, 849 (Tex. 1980); Ackermann v.
Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Additionally, there are two special
United Parcel Serv. Inc. v. Tasdemiroglu, 25 statutes that allow a party to appeal the denial of
S.W.3d 914 (Tex. App.—Houston [14th Dist.] a summary judgment motion. When a trial court
2000, pet. denied); Amerivest, Inc. v. denies a summary judgment motion based on an
Bluebonnet Sav. Bank, 897 S.W.2d 513, 515 n.1 assertion of immunity by an officer or employee
(Tex. App.—Fort Worth 1995, writ denied); of the state, the movant may immediately appeal
Motor 9, Inc. v. World Tire Corp., 651 S.W.2d that decision. See TEX. CIV. PRAC. & REM.
296 (Tex. App.—Amarillo 1983, writ ref'd CODE ANN. § 51.014(5). When reviewing this
n.r.e.). denial, an appellate court uses the same standard
of review as it does for an order granting a
But if both parties file motions for summary judgment motion. See Bartlett v.
summary judgment and the trial court grants one Cinemark USA, Inc., 908 S.W.2d 229, 233 (Tex.
party's motion but denies the other's, the party App.—Dallas 1995, no writ). Also, if a trial
whose motion the court denied may appeal both court denies a summary judgment motion based
the granting of his opponent's motion and the on a claim against or defense by a member of
denial of his motion. See Lancer Ins. Co. v. the media, or a person whose communication the
Garcia Holiday Tours, 345 S.W.3d 50 (Tex. media published under the freedom of speech or
2011); Tobin v. Garcia, 159 Tex. 58, 316 free press guarantees, the movant may
S.W.2d 396, 400 (1958). See also Amerivest, immediately appeal that denial. See TEX. CIV.
Inc., 897 S.W.2d at 515 n.1. When opposing PRAC. & REM. CODE ANN. § 51.014(6); see also
parties file counter motions for summary Freedom Communications, Inc. v. Brand, 907
judgment and the trial court grants one motion S.W.2d 614, 617 (Tex. App.—Corpus Christi
and denies the other, the appellate court has 1995, no writ); H&C Communications, Inc. v.
jurisdiction to determine all questions presented

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4828-7582-4199v.2 999997-1340
Reed's Food Int'l, Inc., 887 S.W.2d 475, 476 particular legal duty or correct an abuse of
(Tex. App.—San Antonio 1994, no writ). discretion. Because mandamus is an
“extraordinary remedy,” it historically has only
The Texas Civil Practice and Remedies been available in limited circumstances when
Code also allows for a permissive appeal in necessary to “correct a clear abuse of discretion
Texas. See TEX. CIV. PRAC. & REM. CODE or the violation of a duty imposed by law when
ANN. §51.014(d). This device would allow a there is no other adequate remedy by law.” CSR
party to appeal a traditionally non-appealable Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996).
interlocutory ruling when it involves a Historically, Texas courts have not granted
controlling issue of law as to which there is a mandamus relief from a trial court’s denial of a
substantial ground for difference of opinion and summary judgment motion. In re McAllen
when an immediate appeal may materially Medical Center, Inc., 275 S.W.3d 458, 465
advance the ultimate termination of the (Tex. 2008); In re Mohawk Rubber Co., 982
litigation. See id. If all conditions are met for S.W.2d 494 (Tex. App.—Texarkana 1998,
its use, the permissive appeal is a method to original proceeding). But see State Bar of Texas
appeal a denial of a motion for summary v. Heard, 603 S.W.2d 829 (Tex. 1980).
judgment or the granting of a partial motion.
However, in 2004, the Texas Supreme
Further, under those limited Court changed the way that mandamus relief is
circumstances when a party can appeal the evaluated. In re Prudential Ins. Co., 148
denial of a summary judgment, the standard of S.W.3d 124, 135-38 (Tex. 2004) (orig.
review over a denial of a summary judgment is proceeding). In that case, the court held that
the same as the granting of a summary "adequate" is a "proxy for the careful balance of
judgment. See HBO v. Harrison, 983 S.W.2d jurisprudential considerations that determine
31, 35 (Tex. App.—Houston [14th Dist.] 1998, when appellate courts will use original
no pet.). mandamus proceedings to review the actions of
lower courts. These considerations implicate
It should be noted that even though an both public and private interests." Id. at 136.
appellate court cannot review the denial of a The Court stated:
motion for summary judgment, it can order a
trial court to rule on a properly filed motion. See Mandamus review of
In re Mission Consolidated Indep. Sch. Dist., incidental, interlocutory rulings
990 S.W.2d 459, 461 (Tex. App.—Corpus by the trial courts unduly
Christi 1999, orig. proceeding) (where motion interferes with trial court
had been filed for eight months with no response proceedings, distracts appellate
and trial court refused to rule, the movant was court attention to issues that are
entitled to a writ of mandamus ordering the trial unimportant both to the ultimate
court to rule on the motion). disposition of the case at hand
and to the uniform development
XII. MANDAMUS OF DENIAL OF of the law, and adds
SUMMARY JUDGMENT MOTION unproductively to the expense
and delay of civil litigation.
As stated previously, generally, courts Mandamus review of significant
do not allow mandamus relief to review the rulings in exceptional cases may
denial of a summary judgment motion. Recently, be essential to preserve
there has been some precedent that may allow a important substantive and
court of appeals to review a denial of summary procedural rights from
judgment via mandamus review. Mandamus is impairment or loss, allow the
an extraordinary writ, usually issued by a higher appellate courts to give needed
court to a lower court or to an individual, and helpful direction to the law
ordering the subject of the writ to perform a that would otherwise prove

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4828-7582-4199v.2 999997-1340
 elusive in appeals from final simply so that it can be reversed
judgments, and spare private and tried all over again creates
parties and the public the time the appearance not that the
and money utterly wasted courts are doing justice, but that
enduring eventual reversal of they don't know what they are
improperly conducted doing. Sitting on our hands
proceedings. An appellate while unnecessary costs mount
remedy is "adequate" when any up contributes to public
benefits to mandamus review complaints that the civil justice
are outweighed by the system is expensive and
detriments. When the benefits outmoded.
outweigh the detriments,
appellate courts must consider Id.
whether the appellate remedy is
adequate. Previously, the Court held that
mandamus was appropriate to order a trial court
Id. to enter summary judgment in Tilton v.
Marshall, 925 S.W.2d 672 (Tex. 1996). The
In In re McAllen Medical Center, Inc., Court held that mandamus relief was appropriate
the Texas Supreme Court discussed the use of in that case as “the trial itself, therefore, and not
mandamus relief in the context of summary merely the imposition of an adverse judgment,
judgment denials. 275 S.W.3d at 465. The would violate relator's constitutional rights.” Id.
Court stated: at 681.

Of course, mandamus is After the In re McAllen Medical Center,

generally unavailable when a Inc. opinion, the Court granted mandamus relief
trial court denies summary to order a trial court to grant summary judgment
judgment, no matter how based on a statute of limitations defense. In re
meritorious the motion. But USAA, 307 S.W.3d at 314. The extraordinary
parties are not "entitled" to circumstances in USAA that justified mandamus
summary judgment in the same relief were: (1) a previous trial by a trial court
way they are entitled to without jurisdiction, (2) an appeal to an
arbitration, their chosen appellate court and then to the supreme court to
attorney, or an expert report like get that error corrected, and (3) a proposed
those here. Summary judgments second trial on a claim barred by limitations. Id.
were unknown at common law, In granting mandamus relief, the Court noted:
and appeared in Texas cases
only with adoption of the rule in "Two wasted trials are
1949. Even if the merits could not '[t]he most efficient use of
be decided only one way, jury the state's judicial resources.'"
trials may still be important both Id. The Court concluded:
for justice and the appearance of “Denying mandamus relief here
doing justice. Moreover, trying would thwart the legislative
a case in which summary intent that non-tolled TCHRA
judgment would have been claims be brought within two
appropriate does not mean the years (as well as the tolling
case will have to be tried twice - provision's inapplicability to
- as it will if the first trial is suits filed with intentional
conducted in the wrong time, disregard of proper jurisdiction),
place, or manner. By contrast, and we should not "frustrate
insisting on a wasted trial th[at] purpose[] by a too-strict

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4828-7582-4199v.2 999997-1340
 application of our own not be immediately appealed, he lacks an
procedural devices." Because adequate appellate remedy. As the Texas
the extraordinary circumstances Supreme Court has repeatedly held, the cost or
presented here merit delay incident to pursuing an appeal does not
extraordinary relief, we make the remedy inadequate.”); In re Piper
conditionally grant the writ and Aircraft Inc., No. 13-12-00329-CV, 2012 Tex.
direct the trial court to grant App. LEXIS 4232 (Tex. App.—Corpus Christi
USAA's motion for summary May 23, 2012, original proceeding); In re
judgment. Johnson, No. 04-12-00220-CV, 2012 Tex. App.
LEXIS 3208 (Tex. App.—San Antonio April 25,
Id. 2012, original proceeding); In re AMF, Inc., No.
14-11-01011-CV, 2012 Tex. App. LEXIS 668
Since In re USAA, courts of appeals (Tex. App.—Houston [14th Dist.] January 26,
have not generally been receptive to mandamus 2012, original proceeding); In re Conocophillips
petitions from summary judgment denials absent Co., 405 S.W.3d 93 (Tex. App.—Houston [14th
the showing of some extraordinary issue. See In Dist.] January 24, 2012, original proceeding); In
re Ming Chu Chang, No. 13-15-00352-CV, re Kalathil, No. 14-10-00933-CV, 2010 Tex.
2015 Tex. App. LEXIS 10382 (Tex. App.— App. LEXIS 8051 (Tex. App.—Houston [14th
Corpus Christi October 8, 2015, original Dist.] October 5, 2010, original proceeding).
proceeding) (“Relators have not shown that But see In re S.T., 467 S.W.3d 720 (Tex. App.—
extraordinary circumstances justify granting Fort Worth 2015, original proceeding) (granting
mandamus relief on grounds that the trial court mandamus relief ordering the granting of
erroneously denied their motion for summary summary judgment where case involved child
judgment.”); In re OOIDA Risk Retention Grp., custody issues: “issues involving the rights of
Inc., No. 02-15-00238-CV, 2015 Tex. App. parents and children should be resolved
LEXIS 9449 (Tex. App.—Fort Worth expeditiously, and delay in such cases often
September 4, 2015, original proceeding) renders appellate remedies inadequate.”); In re
(“Relators have made no comparable showing of Robinson, 335 S.W.3d 776 (Tex. App.—
extraordinary circumstances. Expressing no Amarillo February 23, 2011, original
opinion on the merits of the trial court's order proceeding) (granted mandamus relief ordering
denying Relators' motion for summary grant of summary judgment on breach of
judgment, we hold that mandamus does not lie contract claim arising from unenforceable
to review such an order.”); In re TCPSP Corp., settlement agreement where doing so allowed a
No. 12-14-00159-CV, 2014 Tex. App. LEXIS four-year old tort case to continue).
3006 (Tex. App.—Corpus Christi March 18,
2014, original proceeding) (“The Court, having Accordingly, the courts of appeals have
examined and fully considered the petition for not seemed inclined to offer broad mandamus
writ of mandamus, is of the opinion that relator relief to parties who wish to challenge a trial
has not met its burden to show itself entitled to court’s denial of a summary judgment. But there
the relief sought.”); In re Crawford & Co., 453 is Texas Supreme Court precedent that would
S.W.3d 450 (Tex. App.—Amarillo 2014, support such relief depending on the factual and
original proceeding); In re Willie, No. 01-13- procedural posture of the case.
00263-CV, 2013 Tex. App. LEXIS 4822 (Tex.
App.—Houston [1st Dist.] April 18, 2013, XIII. STANDARD FOR CHALLENGING A
original proceeding); In re Thuesen, No. 14-13- DEFAULT SUMMARY JUDGMENT
00243-CV, 2013 Tex. App. LEXIS 4622 (Tex.
App.—Houston [14th Dist.] April 11, 2013, There has been some debate about
original proceeding) (“Relator has not presented whether a court of appeals should use the
such extraordinary circumstances. Relator Craddock/equitable motion for new trial
argues only that because an interlocutory order standard (not intentional, meritorious defense,
denying a motion for summary judgment may and delay not harmful) to review the denial of a

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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
result of an accident or mistake, and (2) that nonmovant met its burden in its motion for new
allowing the late response will occasion no trial without deciding whether Craddock or
undue delay or otherwise injure the party Carpenter governs. See Limestone Constr., Inc.
seeking summary judgment." Id. A court of v. Summit Commercial Indus. Props., Inc., 143
appeals should affirm a default summary S.W.3d 538, 542 (Tex. App.—Austin 2004, no
judgment if the party seeking to reverse it had pet.); Kern v. Spencer, No. 02-06-00199-CV,
notice of the hearing and did not file a motion 2008 Tex. App. LEXIS 5582, at *12-13 (Tex.
for continuance or a motion for leave to file a App.—Fort Worth July 24, 2008, no pet.) (mem.
late response, or if the party does file such a op.).
motion but does not prove up good cause as
described above. In subsequent cases, the Texas Supreme
Court has held in other contexts that Carpenter
Several courts of appeals have does not apply when the nonmovant was
concluded after Carpenter, that Craddock unaware of its need to file a response or take
applies when a default summary judgment other action but has not resolved the question of
nonmovant does not receive notice until after the its application in the context of a default
summary judgment hearing. See Harden v. East summary judgment. See Dolgencorp of Tex.,
Tex. Med. Ctr. Health Care Assocs., No. 14-08- Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009)
00627-CV, 2009 Tex. App. LEXIS 3409, at *4 (per curiam) (holding Carpenter does not apply
(Tex. App.—Houston [14th Dist.] May 19, to post-answer default judgment against
2009, no pet.) (mem. op.) ("Craddock applies defendant who was not aware of trial date);
when a summary-judgment non-movant does not Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005)
receive notice of the submission of the (declining to apply Carpenter to summary
summary-judgment motion until after the judgment nonmovant, acting pro se, who filed
submission date."); Cantu v. Valley Baptist Med. responses to requests for admission two days
Ctr., No. 13-02-00321-CV, 2003 Tex. App. late and did not realize need to move to
LEXIS 7379, at *3 n.2 (Tex. App.—Corpus withdraw deemed admissions but attended
Christi Aug. 28, 2003, no pet.) (mem. op.) summary judgment hearing).
(distinguishing Carpenter and applying

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XIV. SUMMARY JUDGMENT RECORD or motion for leave to file evidence late.
Accordingly, if a collateral issue impacts a trial
The record for a summary judgment court's summary judgment order, the appellant
appeal traditionally has only been the clerk's should request the preparation of a reporter's
record because there was no testimony at the record.
hearing and only written rulings would preserve
error. See TEX. R. CIV. P. 166a(c); McConnell XV. ADVERSE EFFECTS FROM
v. Southside ISD, 858 S.W.2d 337, 343 n.7 (Tex. MOTIONS, RESPONSES, OR
1993); Utilities Pipeline Co. v. American EVIDENCE MISSING FROM THE
Petrofina Mktg, 760 S.W.2d 719, 723 (Tex. RECORD
App.—Dallas 1988, no writ) (only written
rulings preserved error). Accordingly, One problem that has plagued many
historically, nothing in the reporter's record summary judgment appellants is an adverse
could have an impact on the appeal. presumption applied against them because of
motions, responses, or evidence missing from
However, that is currently not the case. the record. This presumption could act as a
A signed order should no longer be required to waiver by the appellant of entire points of error
preserve an objection to evidence when the trial or the appeal itself. Because oral testimony
court orally ruled on the objection and the ruling argument at a summary judgment hearing is not
appears in the record. See Allen v. Albin, 97 summary judgment evidence, the record on
S.W.3d 655 (Tex. App.—Waco 2002, no pet.); appeal consists solely of the papers on file with
Aguilar v. LVDVD, L.C., 70 S.W.3d 915, 917 the trial court, called the clerk's record. See
(Tex. App.—El Paso 2002, motion); Columbia TEX. R. APP. P. 34.1; see El Paso Assocs., Ltd. v.
Rio Grande Regional Hosp. v. Stover, 17 J.R. Thurman & Co., 786 S.W.2d 17, 19 (Tex.
S.W.3d 387, 395 96 (Tex. App.—Corpus Christi App.—El Paso 1990, no writ). An appellate
2000, no pet.) (error is preserved if the reporter's court cannot review any evidence or summary
record of the summary judgment hearing shows judgment grounds not on file with the trial court
that the trial court announced an oral ruling on at the time of the summary judgment hearing.
the objection). See Gandara v. Novasad, 752 S.W.2d 740, 743
(Tex. App.—Corpus Christi 1988, no writ). So,
Therefore, a party should request that if a motion, response, or evidentiary document is
the reporter's record be prepared and sent to the not on file at the time of the summary judgment
court of appeals if the trial court made oral hearing, an appellate court cannot consider that
rulings on objections to summary judgment document in its determination of the appeal.
evidence that are in the party's favor. However,
one court has held that a trial court does not err A. Historically
in refusing a written record during a summary
judgment hearing as live testimony is not In the former rules of appellate
allowed. See Olsen v. Comm’n for Lawyer procedure, rule 50(d) stated: "The burden is on
Discipline, 347 S.W.3d 876, 885 (Tex. App.— the appellant, or other party seeking review, to
Dallas 2011, pet. denied). see that a sufficient record is presented to show
error requiring reversal." TEX. R. APP. P. 50(d)
Moreover, there may be other collateral (Vernon 1996, repealed 1997). The party who
matters to the summary judgment proceeding perfects an appeal has historically had the
that may require a reporter's record. For burden to produce a complete record. See id.;
example, if there is an objection to expert DeSantis v. Wackenhut Corp., 793 S.W.2d 670,
testimony, there may be live testimony and 689 (Tex. 1990). Even when an appellant
evidence offered to support the expert: a requested that items be included in the appellate
Daubert/Robinson hearing. Further, there may record, "he still had the duty to be certain that all
be live testimony offered to support a motion for requested items are actually received by the
continuance of the summary judgment hearing appellate court." Worthy v. Collagen Corp., 921

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S.W.2d 711, 717 (Tex. App.—Dallas 1995) a notice of appeal has been
(Devany J., concurring), aff'd, 967 S.W.2d 360 filed; and
(Tex. 1998). When the appellant failed to
provide the appellate court with a complete the party responsible for paying
record, the appellate court presumed that any for the preparation of the clerk's
missing material supported the trial court's record has paid the clerk's fee,
judgment. See DeSantis, 793 S.W.2d at 689. has made satisfactory
Consequently, when the clerk's record did not arrangements with the clerk to
contain an affidavit or deposition filed in support pay the fee, or is entitled to
of a summary judgment motion, the appellate appeal without paying the fee.
court would presume that the omitted documents
supported the trial court's judgment. See Crown TEX. R. APP. P. 35.3(a). Thus, an appellant is no
Life Ins. Co. v. Gonzalez, 820 S.W.2d 121, 122 longer obligated to make a specific request for
(Tex. 1991); see also DeSantis, 793 S.W.2d at the clerk's record to be filed in the appellate
689. If an appellant failed to include the court. See John Hill Cayce, Jr. et al., Civil
appellee's summary judgment motion in the Appeals in Texas: Practicing Under the New
transcript, the motion was presumed to support Rules of Appellate Procedure, 49 BAYLOR L.
the trial court's judgment, and the appellate court REV. 867, 919-20 (1997). Under the new rule, if
would overrule the appellant's points of error. the appellant files a notice of appeal and makes
See Atchison, 916 S.W.2d at 77. However, arrangements to pay the clerk's fee, the trial
because a non-movant was not required to court clerk has the responsibility to file the
respond to a summary judgment motion at all, clerk's record with the appellate court. See id. at
the appellant did not automatically waive the 928-29. Further, Rule 34.5(a) defines what must
appeal by failing to include a response to the appear in the clerk's record. TEX. R. APP. P.
appellee's summary judgment motion. See 34.5(a). If a party's document does not fall into
Knapp v. Eppright, 783 S.W.2d 293, 295 (Tex. one of the categories that automatically will be
App.—Houston [14th Dist.] 1989, no writ). The sent to the appellate court, then the party only
only issue before the appellate court was has to designate the document in compliance
whether the summary judgment motion is with the new appellate rules, and the burden to
sufficient as a matter of law. However, if the send the designated document is on the trial
summary judgment could only be supported by a court clerk. See TEX. R. APP. P. 34.5(b). Under
point of law, and not factually, the missing the new rule and new burden, appellate courts
depositions or affidavits, although presumed to should no longer apply the presumption in favor
support the summary judgment, would not result of the judgment because of evidence or
in the appellant waiving the appeal. See Gupta documents missing from the appellate record
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?

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 This question should be answered by Rule 34.5(a) are included in the
determining who has the burden to produce the appellate record absent a request
document. The only provision that may impose from one of the parties). If the
on the trial court clerk the responsibility to pertinent summary judgment
include a summary judgment motion, response, evidence considered by the trial
or reply, if the appellant has not made a court is not included in the
designation, is the provision that the trial court appellate record, an appellate
clerk has the responsibility to include all court must presume that the
pleadings in the record on which the trial was omitted evidence supports the
held. See TEX. R. APP. P. 34.5(a)(1). Pleadings trial court's judgment.
are alternating formulations of the parties' DeSantis, 793 S.W.2d at 689;
contentions. The pleadings consist of the see also Crown Life Ins. Co. v.
original petition, the original answer, and each Gonzalez, 820 S.W.2d 121, 122
supplemental or amended petition or answer. A (Tex. 1991). Therefore, we
motion is not a pleading. Therefore, Rule 34.5 presume that Barrios's answers
does not specifically list motions for summary support the trial court's partial
judgment or supporting evidence as required summary judgment in favor of
contents of the clerk's record. See TEX. R. APP. Enterprise.
P. 34.5. If the appellant fails to request any
pertinent part of the summary judgment record, 156 S.W.3d 547, 549-50 (Tex. 2004) (per
the court of appeals will presume that the curiam).
omitted portion supported the judgment and
affirm. See Sparkman v. ReliaStar Life Ins. Co., Furthermore, in Pierson v. SMS
2008 Tex. App. LEXIS 3517 (Tex. App.— Financial II, L.L.C., the appellate court dealt
Corpus Christi May 15, 2008, no pet. hist.); with an appeal from a partial summary judgment
Mallios v. Standard Ins. Co., 237 S.W.3d 778, when the appellant's summary judgment
782 (Tex. App.—Houston [14th Dist.] 2007, pet. response was not in the appellate record. 959
denied). S.W.2d 343, 348 (Tex. App.—Texarkana 1998,
no pet.). Further, the appellant did not designate
For example, in Enter. Leasing Co. of his response for inclusion in the clerk's record.
Houston v. Barrios, the Texas Supreme Court See id. The appellate court concluded that,
found that the appellant had the burden to because a summary judgment response is not a
designate summary judgment materials and pleading, and because there was no other
applied the presumption for missing evidence: category that would have placed a burden on the
trial court clerk to include the response in the
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

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instances, but the new rules will make it much Zoya's issues on the record that
less likely that parties will forfeit grounds of was before us on the submission
error due to the failure to file a complete day.
record." Cayce, at 928.
No. 14-04-01158-CV, 2006 Tex. App. LEXIS
The obvious remedy for missing 4406 (Tex. App.—Houston [14th Dist.] May 23,
motions, responses, and evidence is to 2006, no pet.) (internal citation omitted).
supplement the record and include the missing Moreover, although appellate courts strive to
document. The new rule for supplementing the decide cases on the merits rather than on
record has greatly liberalized supplementation of procedural technicalities, supplementing the
the record. See id. at 935. Under the new rule, record after a case is decided and reconsidering
any party may supplement the record at any the prior decision does not serve judicial
time, and the adverse presumptions that economy and does not violate this general
previously resulted from motions, responses and policy. See Worthy v. Collagen Corp., 967
evidence omitted from the record may now be S.W.2d 360, 366 (Tex. 1998). See also Texas
avoided simply by supplementing the record. First Nat'l Bank v. Ng, 167 S.W.3d 842, 866
See id. For an excellent discussion of the former (Tex. App.—Houston [14th Dist.] 2005, pet.
and current supplementation rules. See Cayce, at granted, judgm't vacated w.r.m.) (refusing to
934. consider supplemental record filed more than a
month after court's opinion and judgment).
However, at least one court has not
taken such a liberal view of supplementation. In XVI. ADVERSE EFFECTS DUE TO
Zoya Enters. v. Sampri Invests., L.L.C., the court APPELLATE BRIEFING
of appeals refused to consider a supplemental INADEQUACIES
record filed after submission:
A. Duty To Appeal Claims
This is not a case of a simple
oversight of tangential or A party has a duty to appeal a summary
insignificant information that judgment and will waive any challenge to the
could be easily overlooked. judgment by failing to appeal. Ineos USA, LLC
This is a case of continued v. Elmgren, 505 S.W.3d 555, 560 n. 2 (Tex.
neglect of information crucial to 2016). Moreover, a party will waive a complaint
a proper appellate review. This about the dismissal of a claim where the party
neglect continued for over fails to seek review as to the claim. Id.; Guitar
eleven months. The burden was Holding Co., v. Hudspeth Cty. Underground
on Zoya (1) to ensure that all the Water Conservation Dist. No. 1, 263 S.W.3d
documents it needed for this 910, 918 (Tex. 2008) (citing Tex. R. App. P.
Court to fully review the 53.2(f)) (holding that all issues not raised on
correctness of the summary appeal to this Court are waived).
judgment were in the record,
and (2) to timely pay for the B. Appellate Court May Not Sua Sponte
supplemental record once it Raise Grounds To Reverse But Must
realized necessary documents Liberally Construe Briefs
were excluded. Zoya did not
carry its burden. "Parties are restricted on appeal to the
theory on which the case was tried." Davis v.
As a result, we refuse to Campbell, 572 S.W.2d 660, 662 (Tex. 1978).
consider the documents Appellate courts are similarly restricted and may
contained in the post- not overlook the parties' trial theories. See id.
submission supplemental Likewise, in the summary judgment context,
record. Instead, we will consider "[i]ssues not expressly presented to the trial

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court by written motion, answer or other not presented to the trial court,
response shall not be considered on appeal as and it may not resolve a case on
grounds for reversal." Tex. R. Civ. P. 166a(c). A an inadequately briefed point of
court of appeals commits reversible error when error, but under Rules 38.1(f),
it sua sponte raises grounds to reverse a 38.9, and 47.1 of the Rules of
summary judgment that were not briefed or Appellate Procedure, it must
argued in the appeal. Wells Fargo Bank, N.A. v. address every "subsidiary
Murphy, 458 S.W.3d 912, 916 (Tex. 2015); San question that is fairly included"
Jacinto River Auth. v. Duke, 783 S.W.2d 209, within those legal and factual
209-10 (Tex. 1990) (per curiam). If a court of theories which were presented
appeals were to reverse summary judgment to the trial court, which are fully
based on such a general response, it "would briefed on appeal, and which are
improperly become an advocate" for a "necessary to final disposition
nonmovant who inadequately briefed his point. of the appeal."
Tello v. Bank One, N.A., 218 S.W.3d 109, 116
(Tex. App.—Houston [14th Dist.] 2007, no Lee v. Rogers Agency, No. 06-15-00037-CV,
pet.); see also Feagins v. Tyler Lincoln-Mercury, 2017 Tex. App. LEXIS 1069 (Tex. App.—
Inc., 277 S.W.3d 450, 455 (Tex. App.— Texarkana February 8, 2017, pet. filed).
Texarkana 2009, no pet.).
C. Specific Judgments Versus General
One court has recently balanced this rule Judgments
with the concept that a court of appeals should
liberally construe briefs: 1. General Definitions

At the same time, under the If the order granting a summary

Rules of Appellate Procedure, judgment motion states the reasons why the trial
appellate "[b]riefs are to be court granted the summary judgment, it is a
construed liberally," Tully v. "specific judgment." See State Farm Fire &
Citibank (South Dakota) N.A., Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.
173 S.W.3d 212, 217 n.4 (Tex. 1993); see also Weiner v. Wasson, 900 S.W.2d
App.—Texarkana 2005, no pet.) 316, 317 n.2 (Tex. 1995); Shivers v. Texaco
(citing Tex. R. App. P. 38.9), Exploration & Prod., Inc., 965 S.W.2d 727, 732
and "[t]he statement of an issue (Tex. App.—Texarkana 1998, pet. denied). If
or point [in an appellant's brief] the trial court simply grants one party's summary
will be treated as covering every judgment motion but does not state any ground
subsidiary question that is fairly for doing so, then it is called a "general
included," Tex. R. App. P. judgment." See, e.g., Sumerlin v. Houston Title
38.1(f). Moreover, "[t]he court Co., 808 S.W.2d 724, 726 (Tex. App.—Houston
of appeals must hand down a [14th Dist.] 1991, writ denied).
written opinion that is as brief
as practicable but that addresses 2. A Party Should Look to the
every issue raised and necessary Actual Order Granting
to final disposition of the Summary Judgment
appeal." Tex. R. App. P. 47.1.
Therefore, under Rule 166a(c) There are occasions when the trial court
of the Rules of Civil Procedure, may inform the parties on what grounds it is
an appellate court may not granting a summary judgment, but the actual
reverse a summary judgment on order itself does not state the grounds. For
the basis of "legal theories (i.e., example, the trial court sometimes informs the
grounds of recovery and parties the grounds on which it is granting the
defenses) and factual theories" summary judgment after oral argument or in a

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letter sent to each party. See, e.g., Stevens v. judgment based on a ground that was not
State Farm Fire & Cas. Co., 929 S.W.2d 665, presented to it in writing. See Cincinnati Life
669 (Tex. App.—Texarkana 1996, writ denied); Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.
Richardson v. Johnson & Higgins of Texas, Inc., 1996); see also Toonen v. United Servs. Auto.
905 S.W.2d 9, 11 (Tex. App.—Houston [1st Ass'n, 935 S.W.2d 937, 942 (Tex. App.-San
Dist.] 1995, writ denied); Martin v. Antonio 1996, no writ). Indeed, the rule
Southwestern Elec. Power Co., 860 S.W.2d 197, provides:
199 (Tex. App.—Texarkana 1993, writ denied).
In these circumstances, where should the The motion for summary
appealing party look to determine if the judgment shall state the specific
judgment is specific or general? Texas grounds therefor. . . The
precedent requires that a party look only to the judgment sought shall be
judgment to determine the grounds, if any, rendered forthwith if . . . there is
identified by the court as the basis of its no genuine issue as to any
judgment. See Hailey v. KTBS, Inc., 935 S.W.2d material fact and the moving
857, 859 (Tex. App.—Texarkana 1996, no writ); party is entitled to judgment as a
see also Stevens, 929 S.W.2d at 669; Shannon v. matter of law on the issues
Texas Gen. Indem. Co., 889 S.W.2d 662, 664 expressly set out in the motion
(Tex. App.—Houston [14th Dist.] 1994, no or in an answer or any other
writ); Martin, 860 S.W.2d at 199; Taylor v. response.
Taylor, 747 S.W.2d 940, 944 (Tex. App.—
Amarillo 1988, writ denied); Frank v. TEX. R. CIV. P. 166a(c).
Kuhnreich, 546 S.W.2d 844, 847 (Tex. Civ.
App.—San Antonio 1977, writ ref'd n.r.e.); The Texas Supreme Court has expressly
Brazos River Auth. v. Gilliam, 429 S.W.2d 949, stated that a trial court may not grant a summary
951 (Tex. Civ. App.—Fort Worth 1968, writ judgment on a cause of action not addressed in a
ref'd n.r.e.). "It is the court's order that counts, summary judgment proceeding. See Mafrige v.
not the stated reason or oral qualifications." Ross, 866 S.W.2d 590, 591 (Tex. 1993). See
Richardson, 905 S.W.2d at 11. Even if the trial also Chessher v. Southwestern Bell Tel. Co., 658
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
D. 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,

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4828-7582-4199v.2 999997-1340
the appellant should raise this complaint to the Such a practice results in
appellate court in the brief by a point of error appellate courts rendering
and argument with citation to authority. decisions on issues not
considered by the trial court and
2. Appellate Courts May Affirm voiding the trial court's decision
On Any Ground In Motion without allowing it to first
consider the alternate grounds.
If the appellate court concludes that the Usurping the trial court's
trial court erred in granting summary judgment authority does not promote
on one ground, may it look to other grounds to judicial economy, but instead
affirm the judgment even though the trial court serves as an encouragement for
may not have considered them? In State Farm summary judgment movants to
Fire & Casualty Co. v. S.S., the Texas Supreme obtain a specific ruling from the
Court addressed this issue in a plurality opinion. trial judge on a single issue and
858 S.W.2d 374 (Tex. 1993). The trial court then try again with other
granted summary judgment for the defendant alternate theories at the court of
insurance company on the specific basis that, as appeals, then assert the same or
a matter of law, the homeowner's policy additional alternate theories
provided no coverage for any of the plaintiff's before this Court.
claims. See id. at 376. The plaintiff appealed,
and the appellate court held that the trial court Id.
erred in granting the motion for summary
judgment on the "no coverage" ground. See id. This issue, however, was not
The defendant appealed to the supreme court conclusively settled until three years later in
and argued that the court of appeals erred in Cincinnati Life Insurance Co. v. Cates. 927
failing to affirm the summary judgment on a S.W.2d 623, 624 (Tex. 1996). In Cincinnati Life
different and independent ground that was raised Insurance, the defendant insurance company
in the summary judgment motion. See id. at filed a motion for summary judgment alleging
380. The supreme court held that when a trial grounds A, B, C, and D. See id. The trial court
court's order expressly specifies the ground expressly granted the motion on grounds A and
relied on for the summary judgment, the B, but expressly denied grounds C and D. See
judgment can be affirmed only "if the theory id. The court of appeals held that the trial court
relied on by the trial court is meritorious, erred in granting the summary judgment on
otherwise the case must be remanded." Id. at grounds A and B, but refused to consider
380-81. The court based this result on two grounds C and D and remanded the case to the
policy considerations. First, if appellate courts trial court for further disposition. See id. In
could affirm a summary judgment on grounds overruling State Farm, the Texas Supreme Court
that were not relied on by the trial court, the held that appellate courts should consider all of
appellant would be required on appeal to the summary judgment grounds that the appellee
challenge every ground raised in the motion for preserves for appellate review and that are
summary judgment, even though many of the necessary for final disposition of the appeal,
grounds were not considered or ruled on by the whether or not the trial court actually ruled on
trial court. See State Farm, 858 S.W.2d at 381. those grounds. See id. at 627. See also Baker
Second, if an appellate court was to consider Hughes, Inc. v. Keco R. & D. Inc., 12 S.W.3d 1,
grounds that were never considered by the trial 5-6 (Tex. 1999); Romo v. Texas Department of
court, the appellate court would usurp the trial Transportation, 48 S.W.3d 265, 269 (Tex.
court's authority to consider and rule on all App.—San Antonio 2001, no pet.).
issues before it. See id. at 381-82. The court
stated: The Supreme Court has recently stated
the rule as follows: "In reviewing a summary
judgment, we consider all grounds presented to

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the trial court and preserved on appeal in the them in the summary judgment proceeding and
interest of judicial economy." Diversicare Gen. present them in an issue or cross-point on
Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 appeal." Westchester Fire Ins. Co. v. Admiral
(Tex. 2005). Notably, the Court did not Ins. Co., 152 S.W.3d 172, 178 (Tex. App.—Fort
articulate any different rule depending on the Worth 2004, no pet.). Two courts of appeals
type of summary judgment order being have dealt with whether an appellee preserved
appealed. In fact, in the appeal of a summary the ground for appellate review. In Valores
judgment, the appellate court may even review Corporativos, S.A. de C.V. v. McLane Co., Inc.,
grounds in earlier summary judgment motions the court noted that "courts of appeals should
that the trial court denied or did not rule on. consider not only all those grounds the trial
Baker Hughes, Inc. v. Keco R.& D., 12 S.W.3d court rules on but also those grounds the trial
1, 5 (Tex. 1999). In Baker Hughes, Inc. the court did not rule on but that are preserved for
Court stated: appellate review." 945 S.W.2d 160, 161 n.3
(Tex. App.—San Antonio 1997, writ denied)
The court of appeals refused to (citing Cincinnati Life Ins., 927 S.W.2d at 625-
consider whether Baker 26). The court found, however, that the appellee
Hughes's second motion for failed to preserve any of the unruled upon
summary judgment should have grounds for appellate review by not seeking to
been granted, citing the general affirm the summary judgment on those grounds
rule that a denial of summary in his brief. See id. In Bennett v. Computer
judgment is interlocutory and Associates International, Inc., the court held that
not appealable. But as we the appellee had preserved for appeal a ground
recognized in Cincinnati Life that was asserted in his summary judgment
Insurance Co. v. Cates, the rule motion but was not considered by the trial court.
does not apply when a movant 932 S.W.2d 197, 205 (Tex. App.—Amarillo
seeks summary judgment on 1996, writ denied). The appellee preserved error
multiple grounds and the trial by developing the ground in its appellate brief
court grants the motion on one after a general assertion that the trial court did
or more grounds but denies it, or not err in granting the summary judgment. See
fails to rule, on one or more id. Without requiring the appellee to reargue all
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

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ground asserted in the motion that has merit." to affirm and will reduce the chances that the
City of Houston Fire Fighters v. Morris, 949 summary judgment will be affirmed.
S.W.2d 474, 476 (Tex. App.—Houston [14th
Dist.] 1997, pet. denied). The Tyler court has E. General Judgments
stated:
When the trial court grants a general
The Supreme Court has held summary judgment and does not specify the
that appellate courts, in the ground on which it granted the judgment, the
interest of judicial economy, appellant must argue that every ground of the
may consider other grounds that summary judgment motion is erroneous. See
the movant has reserved for Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d
review and the trial court did 623, 625 (Tex. 1996); Boone R. Enters., Inc. v.
not rule on. We must be Fox Television Stations, Inc., 189 S.W.3d 795,
mindful, however, that a 796 (Tex. App.—Dallas 2005, no pet.). Further,
summary judgment cannot be the appellate court must affirm the summary
affirmed on any grounds not judgment if any one of the movant's theories has
presented in the motion for merit. B.C. v. Steak N Shake Operations, Inc.,
summary judgment. No. 15-0404, 2017 Tex. LEXIS 213, n.3 (Tex.
February 24, 2017); Merriman v. XTO Energy,
Robertson v. Church of God, Int'l, No. 12-96- Inc., No. 11-0494, 2013 Tex. LEXIS 492, *5
00083-CV, 1997 WL 555626, at *4 (Tex. (Tex. 2013); Western Invs., Inc. v. Urena, 162
App.-Tyler Aug. 29, 1997, pet. denied) (not S.W.3d 547 (Tex. 2005); Dow Chem. Co. v.
released for publication) (citation omitted). The Francis, 46 S.W.3d 237 (Tex. 2001); Cincinnati
Tyler court mentioned that the ground must be Life Ins. Co. v. Cates, 927 S.W.2d 623, 624
preserved, but seemed to suggest that the (Tex. 1996).
appellee does so by solely raising the ground in
his summary judgment motion. See id. Further, Where the Texas Supreme Court
the Tyler court did not discuss whether the reverses a court of appeals on one ground
appellee reargued the alternative ground in its contained in a summary judgment, the Supreme
appellate brief. See id. These interpretations Court can decide to remand the remainder of the
omit the important requirement that the appellee summary judgment back to the court of appeals
must preserve the ground for appellate argument for review of the other grounds. B.C. v. Steak N
by raising the ground in an appellate brief, Shake Operations, Inc., No. 15-0404, 2017 Tex.
thereby allowing appellate courts to review sua LEXIS 213, n.3 (Tex. February 24, 2017)
sponte the motion for summary judgment and (“Because we hold that the gravamen of B.C.'s
affirm on any ground that was meritorious. claim is assault and therefore the TCHRA is not
Therefore, a party defending a specific summary her exclusive remedy, infra at , and the court
judgment on appeal should argue both the of appeals declined to address the other issues
grounds on which the trial court based its that may have constituted the basis of the trial
judgment, and all other grounds that were court's summary judgment ruling, we remand
included in the summary judgment motion. This the case to the court of appeals to address the
action will afford the best chance of the specific issues in light of our disposition on TCHRA
summary judgment being affirmed on appeal. preemption.”).

Likewise, the safest procedure for the 1. Specific Points of Error Versus
party appealing the summary judgment is to General Points of Error
brief every ground that was raised in the motion
for summary judgment. This will provide the A party may use either specific points of
appellate court with both sides of the argument error/issues or general points of error/issues to
on any possible ground that the court could use attack a summary judgment. See Malooly Bros.,
Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.

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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.
Id. This single point of error allows the party to
challenge all of the grounds stated in the Thus, if the party challenging the
summary judgment motion. See id. The court summary judgment uses specific points of error,
also stated, however, that it is possible to he should be careful to include every possible
challenge the summary judgment by separate, ground raised by the summary judgment motion.
specific points of error. See id. An example of a The following are further examples of an
specific point of error is "The Trial Court Erred appellant waiving his appeal because he failed to
In Granting The Summary Judgment Because assign a specific point of error to a ground raised
The Movant Failed To Establish That There Is in the summary judgment motion: Clark v.
No Genuine Issue Of Material Fact As To When Compass Bank, 2008 Tex. App. LEXIS 3783
The Non-Movant Discovered His Injury So As (Tex. App.—Fort Worth May 22, 2008, no pet.
To Toll The Statute Of Limitations." hist.); Pena v. Je Matadi Dress Co., 2008 Tex.
App. LEXIS 678 (Tex. App.—Houston [1st
2. Specific Points of Error Dist.] Jan. 31, 2008, no pet.); Fluid Concepts,
Inc. v. DA Apartments Ltd. P'ship, 159 S.W.3d
Where an appellant uses specific points 226, 231 (Tex. App.—Dallas 2005, no pet.);
of error to attack a general summary judgment Evans v. First Nat'l Bank, 946 S.W.2d 367, 377
and fails to attack one of the possible grounds on (Tex. App.—Houston [14th Dist.] 1997, writ
which the judgment was granted, the appellate denied); Dubow v. Dragon, 746 S.W.2d 857,
court should affirm the judgment because the 859 (Tex. App.—Dallas 1988, no writ); King v.
appellant has waived the error. See id.. One Texas Employers' Ins. Ass'n., 716 S.W.2d 181,
court stated this waiver principle: 182-83 (Tex. App.—Fort Worth 1986, no writ);
Langston v. Eagle Publ'g Co., 719 S.W.2d 612,
The movant requesting 615 (Tex. App.—Waco 1986, writ ref'd n.r.e.);
judgment is free to assert as Rodriguez v. Morgan, 584 S.W.2d 558, 559
many grounds therefor as he (Tex. Civ. App.—Austin 1979, writ ref'd n.r.e.).
chooses. Should he raise several It is important that the rules discussed here are
and the court fail to state on general and only apply when a defendant attacks
which it relied in granting relief, a judgment for a plaintiff who asserts a single
an additional obstacle confronts cause of action. See Fetty v. Miller, 905 S.W.2d
the non-movant. It falls on the 296, 299 (Tex. App.—San Antonio 1995, writ
latter, on appeal, to address each denied).
ground asserted and establish
why it was deficient to support Further, this discussion must be put in
judgment. Failing to do this the context of the briefing rules of the 1997
entitles the reviewing court to version of the Texas Rules of Appellate
affirm on any unaddressed Procedure. Those rules provide that an
ground. appellant's brief "must state concisely all issues
or points presented for review," and the
Miller v. Galveston/Houston Diocese, 911 "statement of an issue or point will be treated as
S.W.2d 897, 899 (Tex. App.—Amarillo 1995, covering every subsidiary question that is fairly
no writ) (citation omitted). included." TEX. R. APP. P. 38.1(e). Courts of
appeals normally liberally construe "points of
The rationale for waiver in this instance error in order to obtain a just, fair and equitable
is that the summary judgment may have been adjudication of the rights of the litigants."
based on a ground that was available to the trial Sterner v. Marathon Oil Co., 767 S.W.2d 686,

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4828-7582-4199v.2 999997-1340
690 (Tex. 1989). See also TEX. R. APP. P. 38.9; an assertion on appeal that fact
Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d issues remain on that ground is
52, 54 (Tex. 1998) ("Courts should liberally sufficient under the Texas Rules
construe briefing rules."); Anderson v. Gilbert, of Appellate Procedure to raise
897 S.W.2d 783, 784 (Tex. 1995) ("Courts are to a challenge to the excess relief--
construe rules on briefing liberally."). without any request for
summary judgment on a claim,
3. General Points of Error nothing exists in the trial court
record to controvert an
"A general point of error stating that the appellant's contention on appeal
trial court erred in granting the motion for that facts exist to support it.
summary judgment will allow the non-movant to
dispute on appeal all possible grounds for the Id. at 819.
judgment." Shivers v. Texaco Exploration &
Prod., Inc., 965 S.W.2d 727, 732 (Tex. App.— In Plexchem International Inc. v. Harris
Texarkana 1998, pet. denied). See also County Appraisal District, the Texas Supreme
Plexchem Int'l, Inc. v. Harris County Appraisal Court noted that the appellant used a general
Dist., 922 S.W.2d 930, 930-31 (Tex. 1996); point of error and presented three pages of
Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, argument and authority to support the allegedly
121 (Tex. 1970); Gilbert v. Gilvin-Terrill, Ltd., waived ground, thus he preserved error as to that
2008 Tex. App. LEXIS 4348 (Tex. App.— ground. 922 S.W.2d at 931; Shivers, 965
Amarillo June 12, 2008, no pet. hist.). Thus, an S.W.2d at 733 (holding that the appellant did not
appellant may challenge "not only arguments waive his appeal when he used a general point of
focusing on whether a genuine issue of material error and presented four pages of argument on
fact was raised by the summary judgment the allegedly waived ground). Certainly, when
evidence, but also is allowed to contest an appellant uses a general point of error and
non-evidentiary issues such as the legal briefs every ground raised in the summary
interpretation of a statute." Moore v. Shoreline judgment motion, there is no waiver.
Ventures, Inc., 903 S.W.2d 900, 902 (Tex.
App.—Beaumont 1995, no writ). See also However, it is not clear whether an
Shivers, 965 S.W.2d at 732; Cassingham v. appellant who uses a general point of error but
Lutheran Sunburst Health Serv., 748 S.W.2d does not brief every ground raised in the
589, 590 (Tex. App.—San Antonio 1988, no summary judgment motion waives the unargued
writ). grounds on appeal. See Stevens v. State Farm
Fire & Cas. Co., 929 S.W.2d 665, 669-70 (Tex.
In Speck v. First Evangelical Lutheran App.—Texarkana 1996, writ denied). There are
Church of Houston, the appellant raised one two main situations when an appellant may face
general issue: "The Trial Court Erred In this issue. First, the appellant may have failed to
Granting Appellees' Motion For Summary challenge one of the movant's grounds either in
Judgment, As There Existed Evidence In The the trial court in the response or in the appellate
Court's File Supporting Appellant's Case." 235 court in the appellate brief. Second, the
S.W.3d 811 (Tex. App. Houston 1st Dist. 2007, appellees could have challenged all of the
no pet.). The court of appeals construed this movant's grounds to the trial court in the
issue broadly and found it was sufficient to response, but failed to challenge every ground in
challenge the trial court awarding relief that was the appellate brief.
not requested:
As to the first situation, courts have held
We hold that when a trial court that the appellant waived the appeal. In San
grants summary judgment on a Jacinto River Authority v. Duke, the Texas
ground not contained in the Supreme Court held that an appellate court may
motion for summary judgment, not reverse a summary judgment on issues that

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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
appeals in a brief. 711 S.W.2d 7, 8-9 (Tex. on appeal). See also Judson 88 Partners v.
1986); see also San Jacinto River Auth., 783 Plunkett & Gibson, Inc., 2000 Tex. App. LEXIS
S.W.2d at 210. 3308, No. 14-99-00287-CV, 2000 WL 977402,
*2 n.2 (Tex. App.—Houston [14th Dist.] May
In Morriss v. Enron Oil & Gas Co., the 18, 2000, no pet.) (not designated for
defendant based its motion for summary publication) (noting that Malooly holds that
judgment on the failure of one of the elements of "even a broad point of error must still be
the plaintiff's contract claim and on the supported by argument challenging each
affirmative defense of the statute of limitations. independent summary judgment ground. . . .
948 S.W.2d 858, 863 (Tex. App.—San Antonio Otherwise, the assertion of a broad point of error
1997, no writ). In his summary judgment would shift the burden to the appellate court to
response, the plaintiff only argued that the search the record for grounds on which to
statute of limitations was tolled by the discovery reverse the summary judgment.").
rule. See id. at 871. The trial court signed an
order granting the defendant's motion for There is limited guidance from Texas
summary judgment but failed to assign any courts as to the second situation. The Texas
particular basis for so doing. See id. On appeal, Supreme Court has authored a number of
the plaintiff used a general point of error and opinions that relate to this topic, but it has never
alleged that the trial court erred in granting the directly addressed the situation when a non-
summary judgment but only briefed and argued movant attacks every ground in his response to
that the statute of limitations was tolled by the the trial court and then only attacks a few of
discovery rule. See id. The court stated that by those grounds in his brief to the appellate court.
using a general point of error, the plaintiff In Inpetco, Inc. v. Texas American Bank, the
"could present argument on all grounds on non-movant appealed an adverse summary
which he contends that summary judgment was judgment to the appellate court using a general
inappropriate." Id. The court noted, however, point of error. 729 S.W.2d 300 (Tex. 1987) (per
that the plaintiff did not take advantage of this curiam). The appellate court held that the non-
opportunity; rather, he focused his briefing on movant had waived the appeal because the point
the issue of limitations. See id. Thus, the court of error was too broad and there was insufficient
ruled that "failure to take advantage of the argument and authorities under the point of
opportunity to present argument on the error. See Inpetco, Inc. v. Texas Am.
alternative ground results in waiver." Id. Bank/Houston, 722 S.W.2d 721, 721-22 (Tex.
App.—Houston [14th Dist.] 1986), writ ref'd
Other courts have similarly found that a n.r.e. per curiam, 729 S.W.2d 300 (Tex. 1987).
broad issue only allows an appellant the The supreme court reversed the appellate court
opportunity to brief and argue all grounds, it stating that it had erred in affirming the trial
does not relieve a party of the obligation to brief court's judgment on the basis of briefing
all grounds that the trial court could have used to inadequacies without first ordering the non-
support the order. See, e.g., McCoy v. Rogers, movant to rebrief. See Inpetco, 729 S.W.2d at
240 S.W.3d 267 (Tex. App.—Houston [1st 300.
Dist]. 2007, pet. denied); Cruikshank v.
Consumer Direct Mortgage, Inc., 138 S.W.3d The Texas Supreme Court's ruling in
497, 502-03 (Tex. App.—Houston [14th Dist.] this case was contrary to the historical
2004, pet. denied); Pena v. State Farm Lloyds, development of waiver in the context of

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briefing. See David M. Gunn, Unsupported In Bonham State Bank v. Beadle, the
Points of Error on Appeal, 32 S. TEX. L. REV. Texas Supreme Court held that when an
105, 120-21 (1990). Inpetco apparently required appellant had raised an issue challenging the
appellate courts to allow appellants to rebrief summary judgment on an independent ground
inadequately briefed points of error before the with the trial court but failed to raise it in the
court could find waiver. This case produced a appellate brief, he waived that issue. 907
wave of confusion in the courts of appeals. See S.W.2d 465, 470 (Tex. 1995). Beadle, however,
id. at 121-33. Some courts of appeals simply did not deal with a situation when the appellant
ignored Inpetco, some distinguished it, and lost the entire appeal due to the waiver. The
others seemingly refused to follow it. See id. appellate court simply chose not to consider the
Much of the confusion in this area occurred independent issue that the appellant raised to the
because the courts of appeals were trying to trial court but failed to raise in the appellate
apply Inpetco, which applied the waiver doctrine court. See id. See also General Servs. Comm'n
to a summary judgment appeal, to non-summary v. Little-Tex Insulation Co., 39 S.W.3d 591
judgment appeals without taking into account (Tex. 2001); Standard Fruit & Vegetable Co. v.
the inherent differences in the two types of Johnson, 985 S.W.2d 62 (Tex. 1998).
judgments. One court has attempted to limit
Inpetco because of the change in the Texas In Stevens v. State Farm Fire and
Rules of Appellate Procedure. See Svabic v. Casualty Co., the Texarkana Court of Appeals
Svabic, 1999 Tex. App. LEXIS 7829 (Tex. ruled that when an appellant advances a general
App.—Houston [1st Dist.] Oct. 21, 1999, no point of error in his appellate brief, but fails to
pet.) (not design. for pub.) ("Rule 74, on which argue all grounds that the movant advanced in
the court relied in Inpetco, has been repealed and support of his motion in the trial court, the
replaced. Rule 38.9 does not require the court to appellate court may in its discretion refuse to
allow rebriefing or supplementation as rule 74 consider the unargued bases for reversing the
did."). judgment. 929 S.W.2d 665, 670 (Tex. App.—
Texarkana 1996, writ denied); see also Shivers,
In Fredonia State Bank v. General 965 S.W.2d at 732. In Stevens, the court
American Life Insurance Co., the Texas declined to use that discretion and instead
Supreme Court revisited Inpetco and held that it considered that the appellant had simply limited
did not require the courts of appeals to order his argument to his strongest point, and
rebriefing. 881 S.W.2d 279, 284-85 (Tex. considered the other possible attacks against the
1994). Rather, the courts of appeals have judgment. Stevens, 929 S.W.2d at 670. In so
discretion to determine whether to deem a point holding the court stated:
waived or to order rebriefing. See id. at 284
("The principle underlying the opinion in Davis As a practical matter, even if an
is the settled rule that an appellate court has appellant fails to argue all
some discretion to choose between deeming a grounds after a general point of
point waived and allowing amendment or error, presumably it argued all
rebriefing, and that whether that discretion has those grounds in its summary
been properly exercised depends on the facts of judgment response at trial. If a
the case."). "Although Fredonia did not support general point of error simply is
its holding by distinguishing Inpetco on the a request for the appellate court
basis that it was a summary judgment appeal, it to conduct a de novo review of
seems to support [the proposition] that an the trial court's judgment, the
appellate court has discretion to look to the appellate court can, as a
appellant's response to supply any missing practical matter, step into the
argument under a general point of error." trial court's shoes and can, by
Shivers v. Texaco Exploration & Prod., 965 reviewing the pleadings and
S.W.2d 727, 733 (Tex. App.—Texarkana 1998, evidence as raised in the motion
pet. denied). and response, determine

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 whether the trial court properly affirm a summary judgment even if the trial
granted judgment. The appellee court erred in finding that the movant's summary
still must meet its appellate judgment grounds were legally sufficient, and
burden of showing that no the non-movant challenged the summary
genuine issue of material fact judgment in its entirety by a general point of
exists and that it is entitled to error. See Shivers, 965 S.W.2d at 732. See also
judgment as a matter of law. Bean v. Reynolds Realty Group, Inc., 192
S.W.3d 856 (Tex. App.—Texarkana 2006, no
Id. pet.).

"In essence, [the Texarkana court] ruled In Sadler v. Bank of Am., N.A., the court
that because the appellant used a general point of appeals held that it would not affirm a
of error, he challenged all the grounds on which summary judgment based solely on briefing
the summary judgment could have been based." errors:
Shivers, 965 S.W.2d at 732. Due to the de novo
standard of review on appeal, the appellate Sadler's failure to adequately
court, like the trial court, may consider the brief the reasons he believed the
clerk's record and the appellant's summary trial court's ruling on the
judgment response, "wherein he presumably objections was erroneous would
briefed and challenged every argument that the ordinarily result in a waiver of
appellee raised in his summary judgment the issue. However, the waiver
motion." Id. Further, there is no presumption of of this issue would require an
corrections in the summary judgment context. affirmance of the trial court's
After a trial on the merits, a trial court's judgment because Sadler would
judgment is presumed correct. But in summary not have produced any summary
judgment cases, no presumption of correctness judgment evidence in response
attaches to the trial court's judgment and the to BOA's no-evidence motion.
movant still must carry his burden at the This court is not permitted to
appellate court level. See Gillespie v. Fields, affirm a judgment on the basis
958 S.W.2d 228, 231 (Tex. App.—Tyler 1997, of briefing inadequacies without
pet. denied) ("The presumptions and burden of first ordering the party to re-
proof for an ordinary or conventional trial are brief. Inpetco, Inc. v. Texas
immaterial to the burden that a movant for American Bank/Houston N.A.,
summary judgment must bear.") (citing Missouri 729 S.W.2d 300, 30 Tex. Sup.
Kansas-Texas R.R. Co. v. City of Dallas, 623 Ct. J. 336 (Tex. 1987).
S.W.2d 296, 298 (Tex. 1981)). Because unlike a Accordingly, we do not rest our
judgment after a trial on the merits, there is no decision on Sadler's briefing
presumption applicable to a summary judgment. inadequacies.
Thus, the briefing standards should also be
different, with summary judgment appeals given 2004 Tex. App. LEXIS 5491 (Tex. App.—San
more liberal treatment. Compare King v. Antonio June 23, 2004, no pet.).
Graham Holding Co., 762 S.W.2d 296, 298-99
(Tex. App.—Houston [14th Dist.] 1988, no writ) In A.C. Collins Ford, Inc. v. Ford Motor
(noting that Inpetco dealt with a summary Co., the court found that the party appealing a
judgment appeal where the more liberal Malooly summary judgment waived appeal by not raising
briefing rules apply and that Inpetco did not in the appellate brief the issue of conspiracy.
create a general right to rebrief). 807 S.W.2d 755, 760 (Tex. App.—El Paso
1990, writ denied). The court did not state
Following the rule that the appellant whether the appellant had raised conspiracy in
waives appeal by not briefing every possible the summary judgment response in the trial
ground would require an appellate court to court.

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 The best practice for a party appealing 5. How to Raise and Brief a Proper
from a general summary judgment is to set out a Point of Error
general point of error and argue every ground
raised in the summary judgment motion. If A party appealing an adverse summary
he/she does not do so, they will risk waiving the judgment should brief the appeal as thoroughly
entire appeal. If the party fails to challenge every as possible. First, the general point of error
possible ground raised in the summary judgment should state, "The Trial Court Erred In Granting
motion in either the response to that motion, or The Motion For Summary Judgment." Malooly
in his appellate brief, the appellate court will Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.
certainly affirm the judgment on the 1970). As discussed above, this allows the
unchallenged grounds. On the other hand, if the appellant to attack every ground relied on by the
party challenges every ground raised in the motion for summary judgment. Because the
summary judgment motion in the response to appellate courts and their staffs will find sub-
that motion, the appellate court arguably may, points of error helpful, the appellant should also
like the court in Stevens, choose to review that raise a sub-point of error stating, "The trial court
response and not find a waiver of the appellant's erred in granting the summary judgment on
appeal. Most likely, however, the court will ground X because of Y." An example of such a
choose not to exercise that discretion because of brief is contained in Davis v. Pletcher, where the
docket concerns and, due to the supreme court's court states: By a plethora of points, appellant . .
recent and apparent fondness of summary . assails the action of the trial court in partially
judgments, it will not likely reverse the granting the summary judgment. In the first of
decisions of the courts of appeals affirming the 59 points of error, appellant complains
summary judgments. simply that the court erred in granting the
motion. The following 41 points elaborate on
4. Criticism of General Points of this first point in a multitude of ways and are
Error addressed by appellant in seven groups of from
one to thirteen points. 727 S.W.2d 29, 32 (Tex.
One court of appeals has complained of App.—San Antonio 1987, writ ref'd n.r.e.). This
the Malooly briefing rule, which allows language will act as a road map and insure that
argument as to all possible summary judgment the appellate court will not overlook any
grounds to be raised under a single point of argument or authorities that may be dispositive.
error. In A.C. Collins Ford Motor Co., the court The appellant should brief and argue every
urged the Texas Supreme Court to reconsider the ground raised in the summary judgment motion,
Malooly briefing rules. Id.; see also Natividad and should place these contentions in sub-points
v. Alexsis, Inc., 833 S.W.2d 545, 549 (Tex. of error. This should be done whether the appeal
App.—El Paso 1992), rev'd on other grounds, is from a general or specific summary judgment
875 S.W.2d 695 (Tex. 1994). The court stated order. If the order is specific, the appellate court
that "the time has come when attorneys should can still affirm the summary judgment on
be able to direct an appellate court to the error of grounds not considered by the trial court. It is
the trial court with such specificity that there is wise for an appellant to clearly set out
no question about the complaint on appeal." opposition to every possible ground on which
A.C. Collins Ford, Inc., 807 S.W.2d at 760. the appellate court can affirm a summary
Further, the court pointed out that when the judgment. If the summary judgment order is
appellate record consists of volumes of material, general, the appellant should assert as a sub-
"a single point of error saying the trial court point of error and brief every possible ground to
erred is little help" to the appellate court. Id. To avoid waiving his appeal.
date, however, the Texas Supreme Court has
refused to overrule Malooly. Indeed, it has F. Appellee’s Duty To File Brief
reaffirmed Malooly in Plexchem International,
Inc. v. Harris County Appraisal District. 922 Rule 38.8(a) of the Texas Rules of
S.W.2d 930, 931 (Tex. 1996). Appellate Procedure expressly guides courts as

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to what to do if an appellant fails to file a brief; may presume that factual statements made in the
however, there is no corresponding rule to guide appellant’s brief are accurate if the appellee does
courts when an appellee fails to file a brief. not file a brief and contradict those statements.
Dillard’s, Inc. v. Newman, 299 S..W.3d 144, Tex. R. App. P. 38. Landsdowne-Moody Co. v.
147 (Tex. App.—Amarillo 2008, pet. denied). A St. Clair, 613 S.W.2d 792 (Tex. App.—Houston
court has several options when an appellee fails [14th Dist.] 1981, no writ).
to file a brief: it can accept the appellant’s
arguments at face value and summarily reverse XVII. CONCLUSION
or advance arguments in order to affirm. Id.
“Neither option is acceptable.” Id. Rather, “the As we have seen, an attorney faces
appellate court should conduct an independent many issues in filing or responding to a
analysis of the merits of the appellant's claim of summary judgment in Texas. Whether the issue
error, limited to the arguments raised by the is the appropriate standard and scope of review;
appellant, to determine if there was error.” Id. the finality of the summary judgment order; the
effect of motions, responses, and evidence
So, appellees do not have to file an missing from the record; or the exactitude of
appellee’s brief; rather, whenever an appellee briefing to the appellate court, a party must be
fails to file a brief, an appellate court should aware of recent precedent and rule changes in
conduct an independent analysis of the merits of order to avoid the sometimes harsh consequence
the appellant's claim of error to determine if of waiver of an issue on appeal. Therefore, the
there was error. Sarno v. Marsaw & Assocs. author hopes that this article will help to inform
P.C., No. 05-10-01146-CV, 2012 Tex. App. attorneys who either need to appeal or respond
LEXIS 2741, n. 2 (Tex. App.—Dallas April 5, to an appeal of a summary judgment.
2012, no pet.); In re Bowman, No. 03-07-0418-
CR, 2007 Tex. App. LEXIS 9500, 2007 WL
4269842, at *2 (Tex. App.—Austin Dec. 5,
2007, no pet.) (not designated for publication);
Burns v. Rochon, 190 S.W.3d 263 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); San Antonio
Villa Del Sol Homeowners Ass'n v. Miller, 761
S.W.2d 460, 462 (Tex. App.—San Antonio
1988, no writ). Indeed, “An appellee's failure to
contradict issues presented does not lead to
concession of error through some sort of
appellate default judgment.” Spencer v. Gilbert,
No. 03-09-00207-CV, 2012 Tex. App. LEXIS
6353 (Tex. App.—Austin August 4, 2010, pet.
dism.). Accordingly, even if an appellee fails to
file an appellee’s brief, or its appellee’s brief
does not expressly mention a particular
argument, the court of appeals should undergo
an independent review to determine if that issue
would affirm the trial court’s judgment. This
independent review should be constrained by
what the appellee raised in the trial court. A
court cannot advance new arguments. Note also
that the appellee has no duty to raise any issue
statements. Tex. R. App. P. 38.2(a)(1)(B).

There is one negative consequence for

not filing an appellee’s brief: a court of appeals

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