                               NUMBER 13-07-381-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


RAMON AND ANITA GARCIA,                                                      Appellants,

                                             v.

STATE FARM LLOYDS,                                                              Appellee.


   On appeal from the 275th District Court of Hidalgo County, Texas.


                           CONCURRING OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
                 Concurring Opinion by Justice Yañez

       I agree that State Farm’s no-evidence motion for summary judgment is legally

insufficient because it fails to state specifically which elements of the Garcias’ claims are
being challenged.1 I further agree that the motion is therefore treated as a traditional

motion for summary judgment.2 However, in reviewing the motion as a traditional motion,

I would hold that it is legally insufficient as a matter of law because the grounds for

summary judgment are not expressly presented in the motion. Accordingly, I concur in the

judgment, but for different reasons.

                               Sufficiency of State Farm’s Motion

        In its motion, State Farm argued only one non-mold-related “ground,” as follows:

               Additionally, there is no evidence that the amount paid by State Farm
        was insufficient to repair the water damage. The Garcias have repaired their
        home, yet there is no evidence the cost of repairs exceeded the $26,779.42
        State Farm paid.

        The majority addresses the argument that State Farm makes in its appellate

brief—that based on a specific provision in the policy, State Farm’s liability is limited to the

amounts the Garcias “actually and necessarily spent” to repair the damage to their home.

The majority finds the provision State Farm relies on to be inapplicable, and thus

concludes that the motion was “based on a flawed premise.”

        In McConnell v. Southside ISD, the supreme court held:

        Consistent with the precise language of Rule 166a(c), we hold that a motion
        for summary judgment must itself expressly present the grounds upon which
        it is made. A motion must stand or fall on the grounds expressly presented
        in the motion. In determining whether grounds are expressly presented,
        reliance may not be placed on briefs or summary judgment evidence.

        ....



        1
         See T EX . R. C IV . P. 166a(i); Callaghan Ranch, Ltd. v. Killam, 53 S.W .3d 1, 3 (Tex. App.–San Antonio
2000, pet. denied).

        2
            See Hamlett v. Holcomb, 69 S.W .3d 816, 819 (Tex. App.–Corpus Christi 2002, no pet.).

                                                       2
       These rules also permit the trial court to consider a brief in support of a
       motion for summary judgment as guidance in making its determination
       whether the summary judgment evidence demonstrates that the moving
       party is “entitled to judgment,” see TEX . R. CIV. P. 166a(c), but not in
       determining whether summary judgment grounds and issues are expressly
       presented.

       ....

       Even if the non-movant fails to except or respond, if the grounds for
       summary judgment are not expressly presented in the motion for summary
       judgment itself, the motion is legally insufficient as a matter of law.3

       To recover under a breach of contract cause of action, the Garcias were required

to show: (1) the existence of a valid contract, (2) that they performed or tendered

performance, (3) that State Farm breached the contract, and (4) that they sustained

damages as a result of State Farm’s breach.4

       To be entitled to summary judgment, State Farm was required to show that it was

entitled to judgment as a matter of law and that no genuine issue of material fact exists.5

State Farm was required to disprove, as a matter of law, one of the essential elements of

each of the Garcias’ causes of action.6

       Here, the majority implicitly construes State Farm’s motion as challenging either the

“breach” element or “damages” element of the Garcias’ claim. I conclude that State Farm

has failed to expressly present the grounds upon which the motion is made in the motion




      3
           McConnell v. Southside ISD, 858 S.W .2d 337, 341-42 (Tex. 1993) (em phasis added).

       4
           Renteria v. Trevino, 79 S.W .3d 240, 242 (Tex. App.–Houston [14th Dist.] 2002, no pet.).

       5
           See Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215-16 (Tex. 2003).

       6
           Lear, Sigler, Inc. v. Perez, 819 S.W .2d 470, 471 (Tex. 1991).

                                                      3
itself.7 Accordingly, I would hold that the motion is legally insufficient as a matter of law.8




                                                    LINDA REYNA YAÑEZ,
                                                    Justice




Concurring Opinion delivered and filed
this the 30th day of April, 2009.




       7
           See McConnell, 858 S.W .2d at 341.

       8
           See id. at 342.

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