                                NUMBER 13-10-00566-CV

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG

BLANCA TORRES,                                                                        Appellant,
                                                 v.

SAYLOR MARINE, INC.,                                                                    Appellee.

                 On appeal from the County Court at Law No. 6
                          of Hidalgo County, Texas.


                             MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Wittig1
                Memorandum Opinion by Justice Wittig
       Blanca Torres, appellant, challenges the trial court’s entry of summary judgment

against her on all claims. Torres and co-plaintiff, Adriel Madrigal, brought suit against

appellee, Saylor Marine, Inc. (―Saylor‖) on multiple theories. Saylor filed for summary

judgment under both rule 166a(c) and 166a(i) without specifying which theories it


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        Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of
Texas pursuant to TEX. GOV’T CODE ANN. § 74.003 (West 2005).
assailed. See TEX. R. CIV. P. 166a(c) & (i). The trial court granted the motion. The trial

court severed Torres’s claims against Saylor from Madrigal’s claims against Saylor.

After Torres’s motion for new trial was overruled by operation of law, this timely appeal

ensued. Torres raises issues attacking the trial court’s overruling of her objections to

the motion for lack of specificity, the burden of proof with respect to certain issues,

whether there was more than a scintilla of evidence raising factual issues, and whether

the trial court erroneously granted summary judgment on grounds not stated.           We

reverse and remand.

                                  I. BACKGROUND

      Torres signed a retail installment contract to purchase a new boat from Saylor on

May 24, 2004. Torres signed the contract on behalf of her son, John, and Madrigal,

who agreed to ―share ownership‖ and make the installment payments. According to the

record, John and Madrigal did not have good enough credit to purchase the boat on an

installment contract themselves. While Torres testified she did not make the down

payment, the installment contract recites that consideration was paid by her as

purchaser in the amount of $4,000, and Torres’s credit was also used in the acquisition.

The boat was titled in Torres’s name.       Most of the evidence attached to Saylor’s

summary judgment proof was directed at Madrigal, who was not a signatory to the

underlying agreement. Torres’s son and Madrigal used the boat for several years but

ultimately discovered that the boat was not new when Torres purchased it.             The

representations that the rig purchased by Torres was new appeared both in the contract

and by representations made to John.

                                  II. STANDARD OF REVIEW



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       We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). Summary judgment under rule 166a(c) is proper when a

movant establishes that there is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Randall’s Food Mkts.,

Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is entitled to summary

judgment if the evidence disproves as a matter of law at least one element of each of

the plaintiff’s causes of action or if the evidence conclusively establishes all elements of

an affirmative defense. See Randall’s, 891 S.W.2d at 644. Where the trial court grants

the judgment without specifying the grounds, we affirm the summary judgment if any of

the grounds presented are meritorious. FM Props. Operating Co. v. City of Austin, 22

S.W.3d 868, 872–73 (Tex. 2000).

       A party may move for summary judgment under rule 166a(i) 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.         TEX. R. CIV. P. 166a(i);

Western Invs., Inc. v. Urena, 162 S.W.3d 547, 557 (Tex. 2005); Duvall v. Tex. Dep’t of

Human Servs., 82 S.W.3d 474, 477 (Tex. App.—Austin 2002, no pet.). Unless the

nonmovant produces summary judgment evidence raising a genuine issue of material

fact on the challenged elements, the court must grant the motion.          TEX. R. CIV. P.

166a(i) & cmt. 1997; Urena, 162 S.W.3d at 548; Duvall, 82 S.W.3d at 477–78.

       In reviewing a no-evidence claim, we view the evidence in a light that tends to

support the finding of the disputed fact and disregard all evidence and inferences to the

contrary. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002);

Duvall, 82 S.W.3d at 478.      If more than a scintilla of evidence exists, it is legally



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sufficient. Goodman, 80 S.W.3d at 577. Evidence is more than a scintilla when it rises

to the level that would enable reasonable and fair-minded people to differ in their

conclusions. Duvall, 82 S.W.3d at 478. But when evidence offered to prove a vital fact

is so weak as to do no more than create a mere surmise or suspicion of its existence, it

is no more than a scintilla and, in legal effect, is no evidence.     Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Duvall, 82 S.W.3d at 478.

       Because the trial court’s order does not specify the grounds for granting

summary judgment, we must affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are meritorious.

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 217 (Tex. 2004). A no-

evidence summary judgment is improperly granted if the non-movant presents more

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

Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.]

1999, no pet.). Evidence favorable to the non-movant will be taken as true in deciding

whether there is a disputed material fact issue that precludes summary judgment.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).               Every

reasonable inference must be indulged in favor of the non-movant and any doubt

resolved in its favor. Id. at 549.

                                     III. NO EVIDENCE MOTION

       Torres complains of the lack of specificity of the no evidence motion. She also

made her objection known to the trial court which implicitedly overruled the objection.

See Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex. App.—

Corpus Christi, 2000, no pet.).       It is true that Saylor’s motion generally states at



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paragraph seven that its motion should be granted ―on the basis that there is no

evidence of one or more essential elements of each of the claims made. . . .‖ However,

somewhat obscured in its ―introduction‖ in paragraph two, the motion complains that

Torres did not make a single payment on the contract, and therefore, as a matter of law,

she suffered no damages resulting from any of the alleged acts or omissions of which

she claims.

       The contract indicates otherwise. Torres agreed to pay $32,937.50, including a

down payment of $4,000. When construing a written contract, our primary concern is to

ascertain the true intentions of the parties as expressed in the instrument. See J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). We consider the entire

writing and attempt to harmonize and give effect to all the provisions of the contract by

analyzing the provisions with reference to the whole agreement. Frost Nat’l Bank v. L &

F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam); J.M. Davidson, 128

S.W.3d at 229.

      Saylor argues on appeal that the elements in a suit for breach of contract are:

(1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the

defendant breached the contract; and (4) the plaintiff was damaged as a result of that

breach, citing Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d

225, 235 (Tex. App.—San Antonio 2001, no pet.). Saylor also cites our holding to the

same effect in Doss v. Homecomings Financial Network, Inc., 210 S.W.3d 706, 713

(Tex. App.—Corpus Christi 2006, pet. dism’d). There, we held that the normal measure

of damages in a breach of contract case is the benefit-of-the-bargain measure. Id.

(citing Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex. App.—El Paso



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2000, no pet.)); see Sava Gumarska in Kemijska Industria D.D. v. Advanced Polymer

Scis., Inc., 128 S.W.3d 304, 317 (Tex. App.—Dallas 2004, no pet.) (holding that the

normal measure of damages in a breach of contract case is the benefit-of-the-bargain

measure).

       The benefit-of-the-bargain measure seeks to restore the injured party to the

economic position it would have been in had the contract been performed. Had the

contract been performed, Torres would have received a new boat.         Had she been

informed the boat was not new, she need not have obligated herself to pay $32,937.50.

The record reveals that the boat was admittedly rebuilt and was not new, and there was

no new boat warranty as represented.       Torres was subjected to collection efforts

pursuant to the contract, including multiple collection calls.   Thus, there was some

evidence that Torres was not restored to the same economic condition she enjoyed

prior to the contract transaction. Therefore, a fact issue as to the amount of damages

was raised.

       Furthermore, under the Uniform Commercial Code, Torres’s remedies must be

liberally administered to the end that the aggrieved party may be put in as good a

position as if the other party had fully performed. See TEX. BUS. & COM. CODE ANN. §

1.305 (West 2008). Viewed in the light that tends to support a finding of the disputed

fact, there is some evidence of damages. See Minyard Food Stores, Inc., 80 S.W.3d at

577.

       In its no evidence motion, Saylor also claimed the statute of limitations applied

and began to run on March 28, 2004. This allegation ignores the admitted facts that the

sales contract in question was signed and dated May 24, 2004. Equally fatal to its



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motion, a no evidence motion may only be based upon a claim or defense on which the

adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). Because

Saylor moved for summary judgment on its own affirmative defense, the burden was on

Saylor to establish that it was entitled to judgment as a matter of law on that defense.

See Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 922 (Tex. App.—Dallas 2009, no

pet.)

        A review of the record indicates Saylor’s only specifically pled grounds in its no

evidence summary judgment were isolated in its introductory remarks attacking the lack

of damages regarding Torres’s contract claim (Torres made no payments on contract)

and its abortive limitations argument. Its additional reliance upon paragraph seven, a

non-specific statement that ―there is no evidence of one or more essential elements of

each of the claims made against Saylor. . . .‖ is wholly deficient to put Torres on notice

as to which element(s) of which claims the motion attacks. See TEX. R. CIV. P. 166a(i)

(motion must state the elements as to which there is no evidence); see also Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002) (holding that grounds not

pled cannot be the basis of summary judgment). Saylor argues that the motion does

not have to include a specific attack on the evidentiary components that make up an

element of a claim, citing Community Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270,

279 (Tex. App.—El Paso 2004, no pet.) (citing Dominguez v. Payne, 112 S.W.3d 866,

868 (Tex. App.—Corpus Christi 2003, no pet.)). In Dominguez, we explained that the

specificity which is inherent in rule 166a(i) deals with evidentiary support for an element

of a claim or defense, not for ―evidentiary components.‖ See id. We gave the example

of Baker v. Gregg County, 33 S.W.3d 72, 76 (Tex. App.—Texarkana 2000, no pet.). In



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Baker, the court held that the motion for no-evidence summary judgment conformed

with rule 166a(i) because it stated the elements that were lacking. Id. at 76-77. That

court reasoned that specificity in evidentiary components is not required. Id. Saylor’s

vague allusion to the no evidence standard wholly failed to state the elements of a claim

or defense as required. See id.

                           IV. TRADITIONAL SUMMARY JUDGMENT

      In its brief to us, Saylor outlines for the first time some of Torres’s claims that its

summary judgment motion supposedly contested. Torres’s claims included breach of

contract, breach of warranty, fraud, negligent misrepresentation, DTPA and rescission.

The only mention of any of these substantive claims in its motion to the trial court was

―contract‖ and ―limitations,‖ which are addressed above under Saylor’s no evidence

motion. As noted above, most of Saylor’s proof was directed against Madrigal.

      A motion for summary judgment must itself expressly present the grounds upon

which it is made, and must stand or fall on these grounds alone. Sci. Spectrum v.

Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (citing McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 341 (Tex. 1993)); see TEX. R. CIV. P. 166a(c) (―The motion for

summary judgment shall state the specific grounds therefor.‖)           In other words, in

determining whether grounds are expressly presented, we may not rely on briefs or

summary judgment evidence.        A motion for summary judgment must stand or fall on

the grounds expressly presented in the motion and a court may not rely on briefs or

summary judgment evidence in determining whether grounds are expressly presented.

McConnell, 858 S.W.2d at 341.




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      The contention that there is no genuine issue as to any material fact does not, by

itself, constitute a ―specific ground‖ for summary judgment as required by rule 166a(c).

See TEX. R. CIV. P. 166a(c); see also Siegert v. Herndon, 961 S.W.2d 348, 349 (Tex.

App.—Houston [1st Dist.] 1997, no writ) (holding that a motion for summary judgment

which merely stated that there was no genuine issue of material fact, but provided no

further explanation, ―failed to set out grounds for relief‖). The movant for summary

judgment must ―assert grounds in the motion for summary judgment itself and establish

its entitlement to summary judgment.‖ McConnell, 858 S.W.2d at 342. Therefore, the

movant for summary judgment must state the specific grounds and also provide a basis

in the facts, which establishes an entitlement to summary judgment on such grounds.

      We recently addressed this issue in Rudy’s Plumbing Service v. De Los Santos,

No. 13-09-347-CV, 2010 Tex. App. LEXIS 5188, at **5–6 (Tex. App.—Corpus Christi

July 2, 2010, pet. denied) (mem. op.). There, the motion for summary judgment set

forth numerous causes of action against Rudy’s—breach of contract, negligence,

violations of the deceptive trade practices act, and negligence per se. Id. at *2. The

motion did not delineate specifically upon which ground or grounds De Los Santos was

moving for summary judgment. Id. at **2–3. We held that if the summary judgment was

premised on the ground that Rudy’s was negligent, De Los Santos should have stated

that she was moving for summary judgment on the ground of negligence, set forth the

elements of her negligence claim, and presented the evidence showing as a matter of

law why she was entitled to judgment on that claim. Id. at **6–7. Likewise, if she was

moving for summary judgment upon her contract claim, ―she should have stated that

she was moving for summary judgment on that ground and set forth why she was



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entitled to a motion for summary judgment on that claim.‖         Id.   She should have

presented evidence on the elements of breach of contract and evidence showing that

she was entitled to judgment on that claim as a matter of law. Id. at *7. Instead, she

combined the various causes of action and, merely sought summary judgment on

―liability.‖ Id. Saylor’s motion is similarly deficient.

       The 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, 941

S.W.2d at 912.

                                        V. CONCLUSION

       We sustain Torres’s issues as discussed above. We reverse and remand.



                                                           DON WITTIG
                                                           Justice

Delivered and filed the
31st day of August, 2011.




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