                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-328-CV


CURTIS R. FRANCIS                                               APPELLANT

                                       V.


DANNY HORTON                                                     APPELLEES
AND DEBORAH FORD

                                   ------------

           FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                 Introduction

     Appellant Curtis R. Francis appeals the trial court’s order granting the

summary judgment motion of appellees Danny Horton and Deborah Ford. In




     1
         … See Tex. R. App. P. 47.4.
two related issues,2 appellant asserts that the trial court erred by granting

appellees’ motion because the motion did not relate to the legal theories he had

pled at the time it was filed. We reverse and remand.

                                Background Facts

      This is the third appeal of this case to our court.          See Francis v.

TDCJ-CID, No. 02-06-00352-CV, 2007 WL 2460270, at *1 (Tex. App.—Fort

Worth Aug. 31, 2007, no pet.) (mem. op.); Francis v. TDCJ-CID, 188 S.W.3d

799, 800 (Tex. App.—Fort Worth 2006, no pet.).            Because the procedural

history of this case is well detailed by our previous opinions, we will only briefly

summarize the facts relevant to disposition of the issues in this appeal.

      In October 2004, appellant, an inmate, filed a pro se petition against

appellees and the Texas Department of Criminal Justice-Correctional Institutions

Division (TDCJ-CID) alleging common law torts and violations of the Texas

constitution and seeking relief through the Texas Tort Claims Act (TTCA). 3 See

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109 (Vernon 2005 & Supp.

2008). The three defendants filed motions to dismiss under chapter fourteen



      2
        … Appellant contends that summary judgment was improper and that the
trial court abused its discretion by denying his motion for new trial, which also
concerned the propriety of the summary judgment.
      3
      … The claims brought through the TTCA in appellant’s original petition
concerned the conditions of his confinement, which he alleged were unsanitary.

                                         2
of the civil practice and remedies code.      See id. §§ 14.001–.014 (Vernon

2002).     The trial court dismissed all of appellant’s claims.   On appeal, we

reversed the trial court’s dismissal order to the extent that it related to claims

based on a September 27, 2004 prison grievance decision.4            Francis, 188

S.W.3d at 805.

      After remand, the three defendants filed separate motions for summary

judgment.     However, the motions did not address appellant’s claims then

pending under the Texas constitution. The trial court granted all three motions,

and appellant again appealed. We affirmed the trial court’s grant of summary

judgment to TDCJ-CID in all respects, and we also affirmed the trial court’s

grant of summary judgment to appellees on appellant’s federal civil rights

claims, but we reversed the summary judgments in appellees’ favor as they

related to claims under the Texas constitution. Francis, 2007 WL 2460270,

at *3–6.

      Following the second remand, in September 2007, appellant amended his

petition to add a negligence claim related to his alleged denial of access to court

and to clarify that he sought only injunctive and declaratory relief on his claims

under the Texas constitution. After filing other various documents, appellant



      4
      … That grievance decision related to an alleged denial of access to books
from a law library.

                                        3
filed a second amended petition in January 2008. That petition reasserted

claims against TDCJ-CID 5 and maintained claims against appellees. However,

while the petition continued to focus on appellant’s alleged denial of access to

court (through deprivation of law books), it abandoned the theories previously

asserted under the Texas constitution and common law negligence. Instead,

it focused solely on claims of personal injuries caused by appellees’ alleged

misuse of tangible personal property (the law books and a law book request

form), which appellant claimed waived immunity under the TTCA. 6 See Tex.

Civ. Prac. & Rem. Code Ann. § 101.021(2).

      In March 2008, appellees filed another motion for summary judgment.

However, the motion addressed only appellant’s prior claims under the Texas




      5
        … Nothing in the record indicates that appellant served TDCJ-CID with
citation following his reassertion of claims against it after we affirmed summary
judgment in its favor on all grounds. See Scoggins v. Best Indus. Unif. Supply
Co., 899 S.W.2d 276, 278 (Tex. App.—Houston [14th Dist.] 1995, no writ);
Evans v. Hoag, 711 S.W.2d 744, 746 (Tex. App.—Houston [14th Dist.] 1986,
writ ref’d n.r.e.) (concluding that to be brought back into a suit after dismissal,
a party must be served again with citation).
      6
        … Appellant certified that he mailed the second amended petition to the
correct address of the assistant attorney general who represented appellees at
that time. While appellees’ new attorney (who first appeared in February 2008
after appellant filed the second amended petition) claims that she never
received the petition, appellant’s certification is “prima facie evidence of the
fact of service.” Tex. R. Civ. P. 21a; see Mathis v. Lockwood, 166 S.W.3d
743, 745 (Tex. 2005).

                                        4
constitution; it did not address his newly pled claims.7 In May 2008, the trial

court granted appellees’ summary judgment motion and dismissed all claims

against appellees with prejudice. 8 After filing a motion for new trial, appellant

timely filed his notice of this appeal.

                    The Summary Judgment Was Improper

      A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004); see Tex. R. Civ. P. 166a(b), (c).

      A trial court cannot grant summary judgment on grounds not presented

in the summary judgment motion; when the court does so, remand is proper.

See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002);

Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997); Francis,

2007 WL 2460270, at *2. When a plaintiff amends its petition to assert new

legal theories, the defendant’s motion for summary judgment must correspond


      7
      … Specifically, the motion stated that the “issue for consideration” was
whether appellant could “maintain an action against [appellees] under . . . the
Texas Constitution.”
      8
       … Although appellant sued TDCJ-CID in his second amended petition and
although the summary judgment concerned only appellees, the summary
judgment is still a final, appealable order because nothing in the record indicates
appellant’s intention to obtain new service of citation on TDCJ-CID. See M.O.
Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004).

                                          5
to those new claims. See Johnson v. Fuselier, 83 S.W.3d 892, 898 (Tex.

App.—Texarkana 2002, no pet.); Jones v. Ray Ins. Agency, 59 S.W.3d 739,

749 (Tex. App.—Corpus Christi 2001), (indicating that the movant must tailor

”the motion to negate the newly pled theories”), pet. denied, 92 S.W.3d 530

(Tex. 2002).

      Appellees’ summary judgment motion solely concerned claims under the

Texas constitution; these claims had been abandoned by appellant at the time

the motion was filed. 9   The trial court therefore erred by granting summary

judgment on appellant’s sole remaining personal injury claim brought through

the alleged waiver of immunity by the TTCA. See Johnson, 73 S.W.3d at 204;

Jones, 59 S.W.3d at 749. Thus, we sustain appellant’s first issue challenging

the propriety of the trial court’s grant of summary judgment, and we therefore

necessarily sustain appellant’s second issue concerning the trial court’s denial

of his motion for new trial.




      9
      … Appellees’ brief also concerns only the propriety of summary judgment
under appellant’s previously asserted Texas constitutional claims.

                                       6
                                 Conclusion

     Having sustained appellant’s issues, we reverse the trial court’s summary

judgment in favor of appellees, and we remand appellant’s remaining claim for

further proceedings.




                               PER CURIAM


PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DELIVERED: March 5, 2009




                                     7
