      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-01-00377-CV



                                   Edwin E. Alder, Appellant

                                                v.

              Sandra Laurel and Albertson, Snow & Laurel, L.L.P., Appellees



    FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
       NO. C98-575C, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING




               Appellant Edwin Alder appeals the district court’s order granting appellees’ summary

judgment and the court’s denial of his motion for new trial. Alder contends the trial court erred by

(1) improperly disposing of his claims, as they were not addressed in appellees’ motion for summary

judgment, (2) granting appellees’ no evidence motion for summary judgment despite Alder’s summary

judgment evidence in the form of seven interrogatory answers, and (3) granting summary judgment

on claims not challenged in the summary judgment motion. We will reverse the trial court’s judgment

and remand the cause for further proceedings.


                                        BACKGROUND

               In May 1997, Alder was involved in a car accident. In September, Alder hired

appellee Sandra Laurel, a lawyer in the firm of Albertson, Snow & Laurel, L.L.P., to represent him

in his personal injury action against the driver. Alder alleges the parties signed a contingency fee
agreement (the “agreement”) in return for Laurel’s oral promise to loan Alder $9000. A dispute

arose when Laurel refused to loan Alder the money, and they terminated the agreement.

               Alder filed suit against Laurel seeking a declaratory judgment that the contingent fee

arrangement was unenforceable. Alder claimed that Laurel breached the fee agreement by (1)

refusing to fund the loan; (2) failing to disclose her conflicts of interest, thereby invalidating the

agreement; (3) terminating the agreement voluntarily and for cause; and (4) performing inferior work

on his case. Alder also sought a declaratory judgment to prevent Laurel from collecting a fee from

the proceeds of his personal injury suit. Finally, Alder alleged that Laurel violated the Deceptive

Trade Practices Act (“DTPA”) through her misrepresentations and unconscionable actions regarding

the loan agreement, as well as her subsequent refusal to withdraw from representation. Alder did not

assert any cause of action against Laurel based upon negligence.

               In March 1999, the trial court signed an agreed order severing Alder’s claims against

Laurel from those against the defendant driver in the personal injury suit. In February 2001, Laurel

filed a no evidence motion for summary judgment as to Alder’s claims against her and the firm arising

out of negligence, which the trial court granted.


                                   STANDARD OF REVIEW

               Rule 166a(i) allows the party without the burden of proof to move for summary

judgment on the ground that the nonmovant lacks evidence to support an essential element of the

nonmovant’s claim. Tex. R. Civ. P. 166a(i). Under a no evidence motion, the movant can file for

summary judgment without tendering any proof. Id. The nonmovant then has the burden to present


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enough evidence to take the case to the jury. Id. If the nonmovant fails to present more than a

scintilla of evidence, the court must grant the motion for summary judgment. Jackson v. Fiesta Mart,

979 S.W.2d 68, 70-71 (Tex. App.—Austin 1998, no pet.). More than a scintilla of evidence exists

when the evidence rises to a level that would enable reasonable and fair-minded people to differ in

their conclusions. See id.; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997),

cert. denied, 525 U.S. 1017; Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37 S.W.3d 145,

149 (Tex. App.—Austin 2001, no pet.).

               A no evidence summary judgment is essentially a pretrial directed verdict, and we

apply the same legal sufficiency standard in reviewing a no evidence summary judgment as we apply

in reviewing a directed verdict. Jackson, 979 S.W.2d at 70. Like a directed verdict, then, the task

of the appellate court is to determine whether the plaintiff has produced any evidence of probative

force to raise fact issues on the material questions presented. Id. The appellate court must consider

all of the evidence in the light most favorable to the party against whom the no evidence summary

judgment was rendered; every reasonable inference must be indulged in favor of the nonmovant, and

any doubts resolved in its favor. Id.

               A motion for summary judgment must stand or fall on the grounds expressly presented

in the motion. Tex. R. Civ. P. 166a(i); see also McConnell v. Southside Indep. Sch. Dist., 858

S.W.2d 337, 341 (Tex. 1993). Granting a motion for summary judgment on a cause of action not

addressed in the motion constitutes reversible error. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.

1993).




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                                           DISCUSSION

               In his first issue, appellant contends that the trial court erred in granting Laurel’s

motion for summary judgment and in denying his motion for new trial because Laurel’s motion for

summary judgment was based on claims not alleged in appellant’s original pleadings. Alder’s petition

requests declaratory relief and alleges a violation of the DTPA. However, Laurel’s motion for

summary judgment does not challenge the claims alleged in his pleadings but instead addresses only

a negligence claim, a theory of recovery not alleged in Alder’s petition. The substance of the motion

states, “An essential element of plaintiff’s cause of action is that he must prove that he sustained an

injury and damages proximately caused by defendant’s negligence. In the instant case, plaintiff has

no evidence that plaintiff sustained an injury and/or damages on the occasion in question.” (Emphasis

added.) Alder asserts that as Laurel’s motion for summary judgment is limited to negligence, it does

not address his DTPA and declaratory judgment claims. Thus, Alder contends the trial court erred

in granting Laurel’s motion for summary judgment based only on a cause of action not pleaded in his

petition.

               In response, Laurel argues she “inadvertently use[d] the word negligence” in the

motion, but that she also stated in the motion that she was relying on all pleadings as summary

judgment evidence. Laurel maintains that Alder had notice of the grounds for summary judgment and

that Alder produced no evidence raising a genuine issue of material fact as to the elements of his

causes of action in order to defeat her no evidence motion for summary judgment.

               The Texas Supreme Court has held that judgment cannot be granted on grounds not

alleged in the motion for summary judgment. McConnell, 858 S.W.2d at 341; Mafrige, 866 S.W.2d

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at 591. Some courts of appeals have strictly interpreted this holding to mean that, even though a

cause of action may not be viable, a party may obtain summary judgment only on those causes of

action expressly addressed in the summary judgment motion. See, e.g., Smith v. Atlantic Richfield

Co., 927 S.W.2d 85, 88-89 (Tex. App.—Houston [1st Dist.] 1996, writ denied); Southwestern Clinic

of Bone & Joint Diseases v. Farmers Ins. Group, 850 S.W.2d 750, 754 (Tex. App.—Corpus Christi

1993, no writ); Weaver v. Stewart, 825 S.W.2d 183, 184-85 (Tex. App.—Houston [14th Dist.] 1992,

writ denied); see also Watkins v. Hammerman & Gainer, 814 S.W.2d 867, 869 (Tex. App.—Austin

1991, no writ) (judgment must stand or fall on grounds expressly alleged in the motion).

               This Court adheres to a strict interpretation of Rule 166a(i) which specifically requires

that a no evidence motion for summary judgment state the elements on which there is no evidence.

“[A] party without presenting summary judgment evidence may move for summary judgment on the

ground that there is no evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial. The motion must state the elements as to

which there is no evidence.” Tex. R. Civ. P. 166a(i). Even though a movant may file a brief in

support of the motion, the movant must be careful to include all grounds for summary judgment in

the motion itself. (Emphasis added.) McConnell, 858 S.W.2d at 339-42. The supreme court has

expressly held that a motion for summary judgment must itself present the grounds upon which it is

made, and the movant may not rely on briefs or summary judgment evidence in lieu of that

requirement. Id. at 341.1 Thus, a trial court considering a motion for summary judgment is restricted


       1
        We note that the Fourteenth Court of Appeals has further excluded from consideration any
grounds set out in a document that is incorporated by reference into the motion for summary

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to the issues raised in the motion, response, and subsequent replies. Stiles v. Resolution Trust Co.,

867 S.W.2d 24, 26 (Tex. 1993).

               In her motion for summary judgment, Laurel stated that she would rely on the

pleadings as summary judgment evidence. Laurel contends that statement was sufficient to address

the elements of appellant’s DTPA and declaratory judgment claims. When filing a no evidence

motion for summary judgment, the moving party relies on the pleadings and alleges that the opposing

party cannot possibly establish one of the elements of its pleaded cause of action. See Tex. R. Civ.

P. 166a(i). However, a party cannot substitute the nonmovant’s pleading for the movant’s obligation

to allege in her motion the specific basis on which she is entitled to judgment. See McConnell, 858

S.W.2d at 341. Laurel cannot substitute her challenge to one cause of action for another merely by

referring to the original pleadings. See id.

               While the parties do not raise the issue, we note that where the grounds for summary

judgment are not sufficiently specific or are unclear, the nonmovant must specially except to the form

of the motion and give the movant an opportunity to amend before the nonmovant can raise the

complaint on appeal. Id. However, when a motion for summary judgment clearly presents certain

grounds but not others, a non-movant is not required to specially except. Id. at 342; see also Roberts

v. Southwest Tex. Methodist Hosp., 811 S.W.2d 141, 146 (Tex. App.—San Antonio 1991, no writ)

(“When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds

C and D, which were not asserted, even if the summary judgment proof supports them and the


judgment. See Coastal Cement Sand v. First Interstate Credit, 956 S.W.2d 562, 566 (Tex.
App.—Houston [14th Dist.] 1997, writ denied).

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responding party did not except to the motion.”). Alder did not file a special exception to the form

of Laurel’s motion. However, Alder’s response to the motion for summary judgment clearly stated

that Laurel’s motion was based on a negligence claim, and was therefore inconsistent with Alder’s

DTPA action and request for declaratory relief. Upon notice of this deficiency in the motion, Laurel

had an opportunity to amend her summary judgment motion to correct the mistake, but failed to do

so. Because the motion relied on a cause of action not brought by the plaintiff in his original

pleadings, it should not have been granted.

               Laurel argues for the first time on appeal that Alder had insufficient proof of DTPA

damages and that his claims violate the Statute of Frauds. Laurel failed to amend her motion for

summary judgment to include these contentions when she was given the opportunity. Laurel cannot

raise for the first time on appeal alleged deficiencies in Alder’s DTPA and declaratory judgment

claims. Tex. R. App. P. 33.1. Laurel’s motion for summary judgment failed to address Alder’s

claims for relief pursuant to the DTPA and his action for declaratory judgment, and thus summary

judgment should not have been granted. See Mansfield v. Ohio Cas. Ins. Co., 40 S.W.3d 528, 532

(Tex. App.—Houston [14th Dist.] 2000, pet. dism’d by agr.) (because motion failed to address claims

in plaintiff’s pleadings summary judgment was improper). Accordingly, we sustain appellant’s first

issue and do not reach his second and third issues.2




       2
          In appellant’s second and third issues, he contends that he provided sufficient evidence to
avoid a no evidence summary judgment and that the trial court, in granting summary judgment relief,
exceeded the scope of Laurel’s motion. We need not address either of these issues.

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                                        CONCLUSION

               Because the trial court erred in granting summary judgment on causes of action not

addressed in the motion, we sustain appellant’s first issue and reverse and remand the cause to the

trial court for further proceedings.




                                             Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Reversed and Remanded

Filed: February 22, 2002

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