                          NUMBER 13-10-00440-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI—EDINBURG
____________________________________________________

ROY GARCIA JR.,                                                            Appellant,

                                            v.

CITY OF ELSA,                                                              Appellee.


                    On appeal from the 398th District Court
                          of Hidalgo County, Texas.
____________________________________________________

                          MEMORANDUM OPINION

                   Before Justices Garza, Vela, and Perkes
                   Memorandum Opinion by Justice Perkes

      Appellant, Roy Garcia Jr. appeals the trial court’s order granting summary

judgment in favor of appellee, City of Elsa (“City”), on the City’s declaratory judgment

action to invalidate the City’s sale of real property to Garcia and underlying loan

transaction. By five issues, Garcia argues that: (1) the City failed to state valid grounds

for summary judgment where its motion expressly relies only on “Rule 166b, 166i Texas
Rules of Civil Procedure,” see generally TEX. R. CIV. P. 166a; (2) the City was not

entitled to summary judgment under Texas Local Government Code section 272.001

because it failed to identify a specific statutory violation and failed to present evidence

regarding any alleged violation, see TEX. LOC. GOV’T CODE ANN. § 272.001 (West Supp.

2011) (requiring public notice regarding the sale or exchange of land by a political

subdivision); (3) the City failed to assert or prove noncompliance with Texas Local

Government Code section 253.008, see id. § 253.008 (West 2005) (establishing

requirements for the sale of real property by a municipality by public auction); (4) the

City was not entitled to summary judgment under the Texas Constitution because it did

not acknowledge or address the “public purpose” test for analyzing whether a

transaction is improper and there was evidence the transaction met that test, see TEX.

CONST., art. XI, § 3 (prohibiting a municipal corporation from becoming “a subscriber to

the capital of any private corporation or association,” making “any appropriation or

donation to the same, or in anywise [lending] its credit”); and (5) the City was not

entitled to summary judgment on “public policy” grounds when there was no evidence of

violation of any state statute or public policy grounds.1 We reverse and remand.

                                         I. BACKGROUND

       The City filed a three-page petition for declaratory judgment which alleged that

the City entered into an agreement to transfer real property to Garcia pursuant to City of

Elsa Resolution No. 01-07; that it extended credit to Garcia pursuant to a promissory

note which was contrary to the laws of the State of Texas; and that Garcia defaulted on

the promissory note. The City’s pleading did not give any other background facts, did

       1
         At oral argument, Garcia waived and abandoned his fourth issue, that any statutory violation
was cured by the validation statute. As such, we will not address Garcia’s fourth issue.


                                                 2
not provide any specific statutory or other legal basis for invalidating the transaction,

and did not further identify either the real property or the loan agreement. The City’s

pleading for declaratory relief asked that the trial court declare the contract between the

parties to be invalid. The relevant paragraph of the petition states, in its entirety:

        City incorporates the factual allegations as set forth above. In accordance
        with the Texas Civil Practice & Remedies Code § 31.001 et. seq., City
        requests that this Court declare the rights, duties, obligations of the parties
        involved in the real estate transaction between City and Defendant
        [Garcia], specifically the agreement attached as Exhibit A.

No “Exhibit A” or any other document was attached to the City’s petition. In response,

Garcia filed a general denial.

        The City moved for summary judgment on grounds that the contract between the

City and Garcia is void because it is an illegal contract and is against public policy.

Specifically, the City alleged that the contract was illegal because, inter alia, it sold its

property to Garcia without complying with the public auction and sealed bid

requirements of Texas Local Government Code section 253.0082 and without meeting

the notice and publication requirements of Texas Local Government Code section

272.001.3 See TEX. LOC. GOV’T CODE ANN. §§ 253.008, 272.001. The City also alleged

in its motion that the agreement is unconstitutional under article XI, sections 3, 5, and 7

of the Texas Constitution, and quoted section 3. See TEX. CONST. art. XI, §§ 3, 5, 7. In

this regard, the City’s argument, in its entirety, is as follows:

        2
           Texas Local Government Code section 253.008 provides: “The government body of a
municipality may sell real property owned by the municipality by public auction or by sealed bid under
Section 272.001.” TEX. LOC. GOV’T CODE ANN. § 253.008 (West 2005).

        3
          Texas Local Government Code section 272.001 provides that before land owned by a political
subdivision of the state may be sold, notice to the general public of the offer of the land for sale or
exchange must be published in a newspaper of general circulation on two separate dates, and the sale
may not occur until after the 14th day after the date of the second publication. See id.. § 272.001 (West
Supp. 2011).


                                                   3
       [Garcia] is not obligated to pay anything, including interest, for five years,
       and nothing was done by [the] City to make sure that [Garcia] did not
       transfer the property of [sic] do the economic development that [Garcia]
       had to do. The purported agreement at issue is illegal as far as Texas
       Constitution, Texas Statute, City Charter, and against public policy.
       Plaintiff[4] cannot present any evidence at trial [that] legalized the
       agreement. Further, the purported agreement is illegal or against public
       policy as it defeats the purpose of the City of Elsa coffers which is to
       benefit all citizens of the City, not a specific individual. Therefore, the
       purported agreement is illegal and against public policy and should be
       declared void by this Honorable Court.

No affidavit, deposition or other testimonial evidence is attached to the City’s motion for

summary judgment which would support the background facts included in its motion. A

copy of a document entitled “Resolution No. 01-07” is attached as exhibit A, and a copy

of a document entitled “Promissory Note” is attached as exhibit B. The City did not

authenticate either document, or support them by affidavit, and the City did not provide

any evidentiary support for any fact alleged in its motion for summary judgment. Exhibit

A to the motion for summary judgment is a resolution passed by the City authorizing the

conveyance of the described property. Exhibit B is a promissory note between the City,

as lender, and Garcia, as borrower. The property referenced in the resolution is the

same property that is identified as the security for payment of the promissory note.

       Garcia filed a response to the City’s motion for summary judgment.                                In his

response, Garcia discussed the background facts surrounding the transaction and

generally rebutted the City’s arguments. In support of his response, he submitted nine

exhibits which were authenticated by affidavit.5 However, Garcia did not include any

evidence which would support the facts alleged in his response.


       4
           The City is the “plaintiff” in this lawsuit; thus, the reference must be to Garcia, as defendant.
       5
         The exhibits include: “Resolution No. 01-07” dated February 20, 2001; “Promissory Note” dated
March 2, 2001; “Warranty Deed with Vendor’s Lien” dated March 2, 2001; “Warranty Deed with Vendor’s

                                                        4
        The trial court granted the City’s motion for summary judgment. It ordered that

“the promissory note between the City of Elsa and Roy Garcia attached as Exhibit A to

this Order is void and that the title to the property therein described revert back to the

City of Elsa.” The trial court further ordered that “the City of Elsa reimburse Roy Garcia

the sum of $2,866.98 for payments he made to the City under the void promissory

note.” This appeal ensued.

                                       II. STANDARD OF REVIEW

        The purpose of a declaratory action is to establish the existing rights, status or

other legal relationships between parties. City of El Paso v. Heinrich, 284 S.W.3d 366,

370 (Tex. 2009); see TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2008). A

declaratory judgment is appropriate only when there is a justiciable controversy about

the rights and status of the parties and the declaration would resolve the controversy.

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Declaratory relief is

not warranted unless the claim presents a “substantial controversy” of “immediacy and

reality.” Tex. A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 (Tex. 2011)

(quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)). Suits for

declaratory judgment are intended to determine the rights of parties when a controversy

has arisen, but before any wrong has been committed. See Armstrong v. Hixon, 206

S.W.3d 175, 179 (Tex. App.—Corpus Christi 2006, pet. denied); Montemayor v. City of




Lien (Correction Deed)” dated March 14, 2003; “Plaintiff’s Original Petition” in a matter styled The City of
Elsa v. Roy Garcia, Jr., Cause No. CL-04-609-B, County Court at Law No. 2 of Hidalgo County, Texas,
with a file stamped date of March 15, 2004; an “Order of Dismissal” regarding this lawsuit, with a file
stamped date of April 7, 2009; Texas Commission of Environmental Quality letter to Roy Garcia dated
August 19, 2006; Gustavo L. Acevedo, Jr. letter to Roy Garcia dated July 22, 2009; and miscellaneous
receipts and checks.


                                                     5
San Antonio Fire Dep’t, 985 S.W.2d 549, 551 (Tex. App.—San Antonio 1998, pet.

denied).

       Declaratory judgments are reviewed under the same standards as other

judgments and decrees. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (West 2008);

Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 719 (Tex. App.—Austin

2007, pet. denied). We look to the procedure used to resolve the issue at trial to

determine the standard of review on appeal. See Armstrong, 206 S.W.3d at 179; City of

Austin v. Garza, 124 S.W.3d 867, 871 (Tex. App.—Austin 2003, no pet.). Inasmuch as

the trial court determined the declaratory judgment through summary judgment

proceedings, we review the propriety of the trial court’s declarations under the same

standards we apply to summary judgments. See City of Austin, 124 S.W.3d at 719;

Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex. App.—Houston

[14th Dist.] 2003, no pet.).

       The function of a summary judgment is to eliminate patently unmeritorious claims

and untenable defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Alaniz v. Hoyt, 105

S.W.3d 330, 345 (Tex. App.—Corpus Christi 2003, no pet.). This court applies de novo

review to a summary judgment order using the same summary judgment standard

employed in the first instance by the trial court. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005); Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7

(Tex. 2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137

(Tex. 2004)); Armstrong v. Armstrong, 206 S.W.3d 175, 180 (Tex. App.—Corpus Christi

2006, pet. denied).     If the trial court’s order granting summary judgment does not



                                             6
specify the ground or grounds relied upon for the ruling, we will affirm the judgment on

appeal if any of the theories advanced by the movant are meritorious. Dow Chem. Co.

v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (quoting Carr v. Brasher, 776 S.W.2d 567,

569 (Tex. 1989)).

           III. TRADITIONAL OR NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

       In his first issue, Garcia argues that the City did not state valid grounds for

summary judgment when it (1) expressly relied only on “rule “166b, 166i Texas Rules of

Civil Procedure,” although no such rules exist; (2) rule 166a(b) concerns summary

judgment for a defendant and the City was the plaintiff; and (3) the City did not state any

elements for which Garcia had the burden of proof and for which he had no evidence,

thereby failing to comply with the Texas Rules of Civil Procedure pertaining to no-

evidence motions for summary judgment.

       The City’s motion for summary judgment incorrectly refers to “166b, 166i Texas

Rules of Civil Procedure.”     Therefore, as a threshold matter, we must determine

whether the City’s motion for summary judgment is in substance a traditional or no-

evidence motion so that we may apply the appropriate standard of review. See Tex.

Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348,

375 (Tex. App.—Dallas 2009, pet. denied); Rodgers v. Weatherspoon, 141 S.W.3d 342,

344 (Tex. App.—Dallas 2004, no pet.). In determining whether a motion for summary

judgment is brought on traditional grounds or no-evidence grounds, we consider the

substance of the motion rather than categorizing the motion strictly by its form or title.

Tex. Integrated Conveyor Sys., Inc., 300 S.W.3d at 375; Rodgers, 141 S.W.3d at 344.




                                            7
       In its motion for summary judgment, the City contends that it is entitled to

summary judgment because there is “no genuine issue of material fact.” It argues that

the contract was illegal, contrary to public policy, and “unconstitutional and without

authority.” The City asserts that “there is no genuine issue of material fact with regard

to illegality of the subject contract” and that it “is entitled to judgment as a matter of law.”

The City further contends that because “no evidence can be introduced at trial to

support a finding that the [c]ontract was not illegal or contrary to public policy, the

agreement fails as a matter of law.” The City also argues that Garcia “cannot present

any evidence at trial [which would legalize] the agreement.” The City attached exhibits

to the motion as previously described.

       Based upon the foregoing, it appears that the City attempted to invoke both a

traditional motion for summary judgment under Texas Rule of Civil Procedure 166a and

a no evidence motion for summary judgment under Texas Rule of Civil Procedure

166a(i).   Compare TEX. R. CIV. P. 166a(c) (providing for summary judgment where

“there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law”) with TEX. R. CIV. P. 166a(i) (providing for summary

judgment where there is “no evidence of one or more essential elements of a claim or

defense”).

       While it is acceptable to file “hybrid” motions for summary judgment invoking both

bases for summary judgment, the Texas Supreme Court has noted that a “better

practice” is to file separate motions, or at least to include headings that clearly delineate

and segregate the two bases for summary judgment. See Binur v. Jacobo, 135 S.W.3d

646, 651 (Tex. 2004); see Pitts v. Winkler County, 351 S.W.3d 564, 570 (Tex. App.—El



                                               8
Paso 2011, no pet.). The supreme court, however, does not require litigants to follow

this practice. Binur, 135 S.W.3d at 651.

      When a party moves for both traditional and a no-evidence summary judgment,

we first review the trial court’s judgment under the standards of rule 166a(i). Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); All Am. Tel., Inc. v. USLD

Communs., Inc., 291 S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet. denied). If the

non-movant failed to produce more than a scintilla of evidence under that burden, then

there is no need to analyze whether the movant’s summary judgment proof satisfied the

rule 166a(c) burden. Id.

                     IV. NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

      We review a no-evidence motion for summary judgment under the same legal

sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 750–51 (Tex. 2003). The Rule of Civil Procedure concerning no-

evidence motions for summary judgment delineates the requirements for a no-evidence

motion as follows:

      After adequate time for discovery, 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. The
      court must grant the motion unless the respondent produces summary
      judgment evidence raising a genuine issue of material fact.

TEX. R. CIV. P. 166a(i); see Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex.

App.—Corpus Christi 2001, pet. denied). Once a no-evidence motion for summary

judgment has been filed, the burden shifts to the nonmoving party to present evidence

raising an issue of material fact as to the elements specified in the motion.       Mack



                                            9
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006). The trial court should not

grant a no-evidence motion for summary judgment if the non-movant brings forth more

than a scintilla of probative evidence to raise a genuine issue of material fact on the

challenged element. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009). More than

a scintilla of evidence exists if the evidence would enable reasonable and fair-minded

jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 427 (Tex.

2008) (per curiam). We review the evidence presented by the motion and response in

the light most favorable to the party against whom the summary judgment was

rendered, crediting evidence favorable to that party if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc.,

206 S.W.3d at 581–82; King Ranch, Inc., 118 S.W.3d at 750.

      Garcia argues in his first issue that, to the extent the City attempts to raise a no-

evidence motion for summary judgment, the City’s motion for summary judgment should

fail because the City has not identified any elements on which Garcia would have the

burden of proof at trial and for which there was no evidence. In connection with this

issue, Garcia argues that the motion fails to give fair notice regarding which elements

the City specifically challenges and further argues that he does not have the burden of

proof regarding grounds for setting aside the contract. We agree.

      A trial court cannot grant a traditional or no-evidence summary judgment motion

on grounds not presented in the motion. Timpte Indus. v. Gish, 286 S.W.3d 306, 310–

11 (Tex. 2009). A no-evidence motion must be specific in challenging the evidentiary

support for an element of a claim or defense because the no-evidence rule “does not

authorize conclusory motions or general no-evidence challenges to an opponent’s



                                           10
case.” Id. (quoting TEX. R. CIV. P. 166a(i) cmt.). The purpose of this requirement is to

provide the opposing party with adequate information to oppose the motion and to

define the issues. Timpte Indus., 286 S.W.3d at 310; Westchester Fire Ins. Co. v.

Alvarez, 576 S.W.2d 771, 772 (Tex. 1978). This purpose is analogous to the “fair

notice” requirements for pleadings under the Texas Rules of Civil Procedure. Timpte

Indus., 286 S.W.3d at 310; Westchester Fire Ins. Co., 576 S.W.2d at 772–73; see TEX.

R. CIV. P. 45(b) (requiring a party’s pleadings to give “fair notice” to the opponent); TEX.

R. CIV. P. 47(a) (requiring a plaintiff’s pleadings to give “fair notice of the claim

involved”).

       The City’s motion for summary judgment states that “no evidence can be

introduced at trial to support a finding that the Contract was not illegal or contrary to

public policy,” and further states that “[p]laintiff cannot present any evidence at trial [that]

legalized the agreement.”       We conclude that the motion failed to give fair notice

regarding the elements of the claim or defense as to which the City contends that there

is no evidence. Timpte Indus., 286 S.W.3d at 310. Thus, the City’s motion was the

type of conclusory or general no-evidence challenge to an opponent’s case barred by

rule 166a(i). Timpte Indus., 286 S.W.3d at 310; see TEX. R. CIV. P. 166a(i) cmt.

       Moreover, and saliently, under Texas Rule of Civil Procedure 166a(i), the City

could only bring a no-evidence motion for summary judgment on a claim or defense on

which Garcia would have the burden of proof at trial. Oasis Oil Corp. v. Koch Ref. Co.

L.P., 60 S.W.3d 248, 254 (Tex. App.—Corpus Christi 2001, pet. denied). In this case,

the City, as the plaintiff in this declaratory judgment action, is attempting to set aside the

contract on grounds that it is illegal, void, and against public policy. The City’s motion



                                              11
for summary judgment asserts that “inasmuch as the contract is void and because no

evidence can be introduced at trial to support a finding that the contract was not illegal

or contrary to public policy, the agreement fails as a matter of law.” The City’s motion

further asserts that Garcia did not perform as obligated; that the transaction was at all

times without legal authority; and that the transfer of property was not conducted as

required by the Texas Local Government Code.

       The party with the burden of proof at trial has the same burden of proof in the

summary judgment proceeding. Waite v. Woodard, Hall, Prim, P.C., 137 S.W.3d 277,

281 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Oasis Oil Corp., 60 S.W.3d at 252.

The City has the burden of proof at trial to prove that the contract is illegal; that it is

against public policy; that Garcia did not perform as obligated; that the transaction was

without legal authority; and that the transfer of property was not properly conducted.

See Plano Surgery Ctr. v. New You Weight Mgmt. Ctr., 265 S.W.3d 496, 501–502 (Tex.

App.—Dallas 2008, no pet.) (holding that when “illegality does not appear on the face of

the contract, it will not be held illegal and thus void unless the facts showing its illegality

are before the court”); Franklin v. Jackson, 847 S.W.2d 306, 310 (Tex. App.—El Paso

1992, writ denied) (“The presumption being in favor of legality, the burden of proof is on

the party asserting the illegality.”); see Lewis v. Davis, 199 S.W.2d 146, 149 (Tex. 1947)

(“But where the illegality does not appear on the face of the contract it will not be held

void unless the facts showing its illegality are before the court.”); Kottwitz v.

Representatives Alexander, 34 Tex. 689, 1869 Tex. LEXIS 149, at *7 (Tex. 1869) (“All

presumptions of law are in favor of the legality of a contract.”).




                                              12
       The City could not properly assert a no-evidence motion for summary judgment

on the issues for which it has the burden of proof. See TEX. R. CIV. P. 166a(i); see

Thomas v. Omar Invs., Inc., 156 S.W.3d 681, 684 (Tex. App.—Dallas 2005, no pet.);

Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680–81 (Tex. App.—Houston [14th Dist.]

2003, no pet.); Oasis Oil Corp., 60 S.W.3d at 252. Moreover, Garcia has not asserted

any affirmative defenses on which the City could have filed a no-evidence motion.

Accordingly, the trial court could not have properly granted the City’s no-evidence

motion for summary judgment.

       To the extent that the City’s motion for summary judgment was brought under the

no-evidence standard, it was legally insufficient as a matter of law. We now turn our

attention to the City’s motion for summary judgment insofar as it can be characterized to

invoke traditional grounds for summary judgment.

                     V. TRADITIONAL MOTION FOR SUMMARY JUDGMENT

       Garcia contends that the City’s motion for summary judgment fails to state a

proper ground for summary judgment because it refers to rule 166a(b); this rule,

however, concerns summary judgments for the “defending party,” and the City is the

plaintiff in this case. As stated previously, the City’s motion states that it is entitled to

summary judgment pursuant to “Rule 166(b)” of the Texas Rules of Civil Procedure.

Rule 166a(b) is entitled “Summary Judgment for Defending Party” and states: “[a] party

against whom a claim, counterclaim, or cross-claim is asserted or a declaratory

judgment is sought may, at any time, move with or without supporting affidavits for a

summary judgment in his favor as to all or any part thereof.” TEX. R. CIV. P. 166a(b).




                                             13
      In the instant case, the City, as plaintiff, sought a declaratory judgment against

Garcia, as defendant. Garcia filed a general denial, but has not alleged any claim,

counterclaim, or cross-claim in this lawsuit. Therefore, rule 166a(b) cannot be used as

a statutory basis for the City’s summary judgment. See id. However, the express

language of the City’s motion for summary judgment recites the correct standard of

review for a traditional motion for summary judgment under rule 166a(c) in that the City

states there is no “genuine issue of material fact” and it is “entitled to judgment as a

matter of law.” See id. TEX. R. CIV. P. 166a(c). Accordingly, we will examine the City’s

motion under the standard of review applicable to traditional motions for summary

judgment.

      In reviewing a traditional motion for summary judgment, the reviewing court must

apply the following well-established standards: (1) the movant for summary judgment

has the burden of showing that there is no genuine issue of material fact, and that it is

entitled to judgment as a matter of law; (2) in deciding whether there is a disputed

material fact issue precluding summary judgment, evidence favorable to the non-

movant will be taken as true; and (3) every reasonable inference must be indulged in

favor of the non-movant, and any doubts resolved in its favor. Am. Tobacco Co. v.

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548–49 (Tex. 1985).

      A party moving for traditional summary judgment under rule 166a has the burden

to establish that there are no genuine issues of material fact and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Diversicare General Partner, Inc.

v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Once the movant establishes a right to



                                           14
summary judgment as a matter of law, the burden then shifts to the non-movant to

present evidence raising a genuine issue of material fact. See City of Houston v. Clear

Creek Basin Authority, 589 S.W.2d 671, 678–79 (Tex. 1979); Scown v. Neie, 225

S.W.3d 303, 307 (Tex. App—El Paso 2006, pet. denied).

       When the plaintiff moves for summary judgment, it must conclusively prove each

element of the cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64,

67 (Tex. 1972); Ortega-Carter v. Am. Int’l Adjustment Co., 834 S.W.2d 439, 441 (Tex.

App.—Dallas 1992, writ denied). The plaintiff meets the burden if it produces evidence

that is sufficient to support an instructed verdict at trial. See Brownlee v. Brownlee, 665

S.W.2d 111, 112 (Tex. 1984).

       Garcia contends that “[o]n a fundamental level, the motion repeatedly fails to

identify or address the legal grounds required for summary judgment, and fails to

support those grounds with evidence.” We agree. The City has not met its burden to

show that there is no genuine issue of material fact and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c); Diversicare General Partner, Inc., 185 S.W.3d

at 846. Although the City’s motion included a copy of the City’s resolution regarding the

sale and a promissory note, it did not include any affidavits or other evidence to support

the facts alleged in its motion for summary judgment.          See United Blood Servs. v.

Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (summary judgment evidence must be

admissible under the Rules of Evidence). In short, the City did not include any evidence

that would show that the contract was illegal, void, against public policy, or in violation of

statutory requirements.      The City did not produce evidence (1) rebutting the

presumption that the contract was legal and in conformance with the constitutional



                                             15
requirements for transactions involving municipalities; (2) showing that the contract was

against public policy; (3) showing that Garcia did not perform under the contract as

obligated; or (4) establishing that the sale and transfer of property was not conducted as

required by the Texas Local Government Code.

      The City’s summary judgment proof is legally insufficient to carry its burden. See

City of Houston, 589 S.W.2d at 678 ("The trial court may not grant a summary judgment

by default for lack of an answer or response to the motion by the non-movant when the

movant's summary judgment proof is legally insufficient."); McConnell v. Southside

Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (stating that a “summary judgment

must stand or fall on its own merits and the non-movant's failure to except or respond

cannot supply by default the grounds for summary judgment or the summary judgment

proof necessary to establish the movant's right.”). Accordingly, the trial court could not

have properly granted summary judgment in favor of the City based on a traditional

motion for summary judgment.

      Based on the foregoing, we sustain Garcia’s first issue.

                                    VI. CONCLUSION

      To the extent that the City’s motion for summary judgment was premised on no-

evidence grounds under Texas Rule of Civil Procedure 166a(i), the motion was fatally

defective because it was conclusory and general, and was not filed on a claim or

defense on which Garcia had the burden of proof. To the extent that the motion was

premised on traditional summary judgment grounds under rule 166a, the City failed to

meet its burden to show that it was entitled to judgment as a matter of law on traditional

summary judgment grounds.



                                           16
       Because we have concluded that the trial court erred in granting summary

judgment on either basis, we need not address Garcia’s remaining issues on appeal.

See TEX. R. APP. P. 47.1, 47.4. We reverse the judgment of the trial court and remand

this case for further proceedings.



                                       ___________________________________
                                       GREGORY T. PERKES
                                       JUSTICE

Delivered and filed the
26th day of April, 2012.




                                         17
