                                                                                      ACCEPTED
                                                                                  13-15-00127-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                             7/16/2015 2:49:47 PM
                                                                           CECILE FOY GSANGER
                                                                                           CLERK




                         NO. 13-15-00127-CV       FILED IN
                                          13th COURT OF APPEALS
                                       CORPUS CHRISTI/EDINBURG, TEXAS
                IN THE COURT OF APPEALS FOR7/16/2015
                                            THE 2:49:47 PM
                  THIRTEENTH JUDICIAL DISTRICT
                                            CECILE FOY GSANGER
                     CORPUS CHRISTI, TEXAS         Clerk


___________________________________________________________________


                             TOM TUCKER,
                             Cross Appellee

                                    v.

              CARL BEDGOOD AND LAURA BEDGOOD,
                        Cross Appellants

  ______________________________________________________________

          FROM THE COUNTY COURT AT LAW NO. ONE OF
                  VICTORIA COUNTY, TEXAS
           THE HONORABLE TRAVIS ERNST, PRESIDING
           ___________________________________________________

                        BRIEF OF CROSS-APPELLEE
           ____________________________________________________

                                         Robert P. Houston
                                         Attorney at Law
                                         30 Meadow View
                                         Victoria, Texas 77904
                                         (361) 573-5700
                                         (361) 573-5040 Facsimile
                                         rph@rphouston.com
                                         ATTORNEY FOR APPELLEE
                                         TOM TUCKER
                               NO. 13-15-00127-CV

                     IN THE COURT OF APPEALS FOR THE
                       THIRTEENTH JUDICIAL DISTRICT
                          CORPUS CHRISTI, TEXAS

___________________________________________________________________


                                   TOM TUCKER,
                                   Cross-Appellee,

                                           v.

                   CARL BEDGOOD AND LAURA BEDGOOD,
                             Cross-Appellant

   ______________________________________________________________

              FROM THE COUNTY COURT AT LAW NO. ONE OF
                      VICTORIA COUNTY, TEXAS
               THE HONORABLE TRAVIS ERNST, PRESIDING

                 _______________________________________________

TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF

APPEALS:

      Cross-Appellee Tom Tucker (hereafter Tucker) files this brief in response to

the Cross-Appellant’s Brief filed by Carl Bedgood and Laura Bedgood (hereafter

Bedgood) respectfully requesting that the trial court’s denial of Bedgoods’ request

for attorney fees only be affirmed in all respects.




                                           ii
                                                TABLE OF CONTENTS



                                                                                                                                 Page:

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Summary of theArgument..........................................................................................3

Argument...............................................................................................................3

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Prayer.......................................................................................................................10

Certificate of Service................................................................................................10

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                                    iii
                                            Index of Authorities

Cases:                                                                                                        Page:

McConnell v. Southside Independent School District,

   858 S.W.2d 337 (Tex. 1993)..................................................................................4

Statutes & Rules:

Rule 166a[c]…T…
              ex…
                . R…
                   . C…
                      iv…
                        . P…
                           .. ………………………………….................................3

Rule 301 Tex. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 67 Tex. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                          iv
                           ISSUE PRESENTED

                                    I.

    The Trial Court was Correct in Failing to Award Attorney's Fees to
Cross-Appellant.




                                     v
                            STATEMENT OF FACTS

      The Cross-Appellant’s Statement of Facts completely ignores the basis for

the Trail Court’s decision and is not germane to the sole issue presented in their

appeal. As shown below, the salient facts which precluded an award of attorney

fees to Bedgood are procedural in nature and are not in controversy.

      Simply put, the fact is that Bedgood neither pled for attorney fees on the

basis they now seek them nor did they request summary judgment on the grounds

they now raise and therefore, it would have been clear reversible error if the Trial

Court had awarded them their requested fees.

      The Bedgoods’ claim for attorney fees is found in their pleading

denominated "Defendant Laura Bedgood’s Answer and Counter Claims,

Defendant’s Second Amended Answer and Counter Claims, and Defendant’s

Tex. Civil Practice & Remedies Code 10 Motion For Sanctions & Request For

Hearing." (CR 80-94) This was the live pleading on which they based their

Traditional Motion for Summary Judgment and in this pleading they specifically

limited their claim to two separate and distinct allegations. First they alleged that

Tucker had breached the 2008 Mutual Release, thus entitling them to attorney fees

pursuant to Chapter 38, Texas Civil P. & Remedies Code. (CR-90). Second, they

alleged a claim for a declaratory judgment regarding their rights and obligations


                                          1
under the 2008 Mutual Release and pled that they could recover attorney fees

pursuant to Chapter 37, Texas Civil P. & Remedies Code. (CR 90).

      In Bedgoods’ Traditional Motion for Summary Judgment, they simply

reiterated their claim of breach of the Mutual Release as the sole basis for awarding

them attorney fees. (CR 125)

      Since Bedgood never alleged in their live pleading or their Traditional

Motion for Summary Judgment any claim that they were seeking attorney fees

pursuant to the terms of the Earnest Money Contract with Bryan, the Trial Court

had no alternative but to disallow attorney fees on such basis.




                                          2
                        SUMMARY OF THE ARGUMENT

         Rule 166a[c] Tex R. Civ. P. unambiguously provides that “The motion for

summary judgment shall state the specific grounds therefore”. The Supreme Court

has held that “a motion for summary judgment must itself expressly present the

grounds upon which it is made” and it would be reversible error for a trial court to

grant relief on a basis not specifically alleged in the motion.

         Since Bedgood did not plead for an award of attorney fees under the earnest

money contract with Bryan and since they did not seek summary judgment on that

basis, they were not entitled to an award of attorney fees by the Trial Court on that

basis.

                                     ARGUMENT

         Standard of Review

    Bedgood cites Tex. R. Civ. P. 301 and Tex. R. Civ. P. 67 as authority for their

contention that a trial court may award attorney fees in a summary judgment

proceeding even if the movant wholly fails to expressly state the grounds upon

which it seeks such relief.      This is an incorrect statement of the law and an

improper standard of review.

     The rule that controls the disposition of this appeal is Rule 166a[c] Texas R.

Civ. P.     And that rule unambiguously requires that the specific grounds for

summary judgment must be set forth in the written Motion for Summary Judgment
                                           3
and cannot be found in a written brief or in oral argument. Moreover, the non-

movant has no duty to object or otherwise except to statements in a brief or oral

argument raising grounds not set forth in the motion since: “The motion for

summary judgment must itself state specific grounds on which judgment is sought”

and “The motion for summary judgment must stand or fall on the grounds it

specifically and expressly sets forth.” McConnell v. Southside Independent School

District 858 S.W.2d 337 (Tex. 1993).

   Questions raised on appeal

   Cross-Appellants’ issue on appeal raises two subsidiary, but fundamental, legal

questions for determination by this Court, to wit:

      1) Is it imperative that a movant expressly state in the written motion for

         summary judgment the specific ground on which it seeks summary

         judgment?

      2) If the movant fails to expressly state the specific ground on which it seeks

         summary judgment, is it necessary that the non-movant object to such

         failure?

       Fortunately, neither of these is an open question, since both have been

conclusively answered by the Texas Supreme Court.




                                          4
       A motion for summary judgment must expressly and specifically state
      the grounds for seeking the summary judgment.

    In McConnell v. Southside Independent School District 858 S.W.2d 337 (Tex.

1993) the Texas Supreme Court was called on to decide whether or not a Motion

for Summary Judgment must expressly set out the specific grounds on which the

judgment is sought. There, a trial court entered a summary judgment based on a

general allegation in a Motion for Summary Judgment that there were no genuine

issues of fact and therefore summary judgment was proper. The movant also filed

a brief in which it set out with specificity each ground for its allegation that there

was no fact issue in the case.

    On appeal from the granting of the summary judgment, the non-movant argued

that since the motion did not set out the specific grounds underlying the claim that

there was no fact issue, summary judgment was improper, even though the movant

did set out expressly and with specificity the grounds for the motion in a brief filed

contemporaneously with the filing of the motion and even though the parties

argued about each ground at the oral hearing on the motion.

     In considering the non-movant’s appeal, the Supreme Court stated that “This

case presents the question whether grounds for summary judgment must be

expressly presented in the motion for summary judgment itself or whether such

grounds may be presented in either a brief filed contemporaneously with the

                                          5
motion or in the summary judgment evidence.” The court answered this question

by stating “We conclude that grounds for summary judgment must be expressly

presented in the summary judgment motion itself.”

      The Court then cited rule 166a[c] Tex. R. Civ. Proc. which it said “plainly

provides ‘The motion for summary judgment shall state the specific grounds

therefor.’” Accordingly, the court held that the rule means what it says and that if

the motion fails to expressly set out the specific grounds supporting the request for

judgment, it is error if the court grants the motion.

      In the present case, Bedgood did state expressly and specifically the grounds

on which they sought summary judgment. (CR 90). Their problem is that these are

not the grounds they now claim supports an award of attorney fees.

      Bedgood alleged in their live pleadings and in their Traditional Motion
       for Summary Judgment the specific basis on which they claimed to be
      entitled to an award of attorney fees.

      The Bedgood’s live pleading is denominated "Defendant Laura Bedgood’s

Answer and Counter Claims, Defendant’s Second Amended Answer and Counter

Claims, and Defendant’s Tex. Civil Practice & Remedies Code 10 Motion For

Sanctions & Request For Hearing." (CR 80-94) In that pleading, Bedgood

expressly stated that their counter-claim against Tucker was for attorney fees and

that the basis on which they were entitled to an award of attorney fees was Chapter

38, Tex. Civ. Practice & Remedies Code. They then stated that under this statute
                                           6
they were entitled to an award of attorney fees because Tucker breached the 2008

Mutual Release with Bedgood.

       As an alternative to this basis, Bedgood also pled their entitlement to

attorney fees under Chapter 37, Tex. Civ. Practice & Remedies Code, because they

were seeking a declaration of their rights and obligations under the Mutual

Release. (CR 91)

       Bedgood then filed their Traditional Motion for Summary Judgment

expressly stating that they were entitled to attorney fees because Tucker had

breached the Mutual Release. (CR-125).1 They stated no other grounds for the

relief they requested.

       Nowhere in their live pleadings or in their Motion for Summary Judgment

did Bedgood claim a right to recovery of attorney fees under the terms of the Bryan

earnest money agreement. (CR 80-94; CR 109–131).

    Tucker responded by challenging in writing Bedgoods’ right to attorney
    fees on the grounds set forth in their live pleadings and motion and
    Bedgood made no reply to that challenge.

       Tucker responded to the motion for summary judgment by citing the legal

authorities that hold that a party to a release cannot, in the absence of specific

contractual language to the contrary, recover attorney fees for breach of the release.
1
 It is important to note that in their Traditional Motion for Summary Judgment Bedgood did not
invoke, plead or seek to recover attorney fees under the Declaratory Judgment Act. The sole
basis for their claim for attorney fees in their motion was the alleged breach of the Mutual
Release.
                                                  7
(CR 286-288). Bedgood never challenged those authorities or argued that the law

is to the contrary. Indeed, in this appeal, Bedgood makes no claim that this is not a

correct statement of the law or that the trial court erred in failing to award them

attorney fees for breach of the Mutual Release. Instead, Bedgood claims that it

was error for the court to refuse to grant summary judgment on a different, unpled

ground that is completely unrelated to that set forth in the motion.

      Tucker had no duty to object or otherwise except to grounds orally
      raised by Bedgood that were not set forth in their Motion for Summary
      Judgment.

      Bedgood does not claim that they actually complied with the requirement

that their motion expressly state the basis for their request for attorney fees. Rather

they contend that Tucker’s attorney failed to “object to Pierce’s argument

regarding attorney fees under the earnest money contract. (Cross-Appellants Brief

p.7) And then Bedgood makes the totally unfounded claim that because they

sought attorney fees in their motion (albeit on a specific ground unrelated to the

ground they now allege) and because Bedgoods’ attorney orally raised the issue at

the hearing on the motion, the issue of attorney fees was both pled and preserved

for appeal because Tucker did not object to consideration of this ground. But the

Texas Supreme Court expressly addressed this type of argument in McConnell

supra, and rejected it out of hand.


                                           8
      In McConnell, the plaintiff who was trying to uphold the award of summary

judgment argued that even if he had not expressly set forth the specific ground on

which he was seeking summary judgment, he had made that ground clear to the

trial judge in a brief and at the oral hearing on the motion. The Supreme Court

however held that while a specific ground had been made known to the trial judge,

and the matter had been briefed and argued, and apparently the Judge had granted

judgment based on such ground, all that was insufficient if the ground was not

expressly set forth in the written motion.

      Moreover, the Court held that if the underlying pleadings and motion set

forth ground A & B as a basis for entry of the summary judgment, but the parties

then orally raise, brief and argue ground C & D, it would be reversible error for the

court to grant the summary judgment on grounds not set forth in the written

motion.

      Here, Bedgood specifically pled the basis on which they sought summary

judgment (breach of the Mutual Release), but then tried to raise a different ground

(prevailing party provision of the Bryan earnest money contract) orally at the

hearing and in a motion for reconsideration.       Under the clear holding of the

Supreme Court this is not sufficient and the trial court was completely correct in

denying attorney fees to Bedgood.


                                             9
                                     Conclusion

       Bedgoods’ failure to allege in their Motion for Summary Judgment the

earnest money contract as a ground for awarding them attorney fees was fatal to

their attempt to get such fees.    The trial court’s decision as to attorney fees was

mandated by the Supreme Court and is therefore not reversible error.



                                       Prayer

       WHEREFORE, Cross Appellee Tom Tucker requests that this court affirm

only the Trial Court’s denial of attorney fees to Cross Appellant, and for all other

relief to which he is entitled.



                                  Respectfully submitted,



                                  _______________________________

                                  /s/ Robert P. Houston
                                  Robert P. Houston
                                  Attorney at Law
                                  30 Meadow View
                                  Victoria, Texas 77904
                                  (361) 573-5700
                                  (361) 573-5040 Facsimile
                                  ATTORNEY FOR APPELLEE




                                          10
                               Certificate of Service

       This is to certify that a true correct and complete copy of Cross Appellee's
Brief has been sent to all parties to the judgment by electronic filing on this 16 day
of July, 2015, as follows:

                                              /s/ Robert P. Houston
                                              Robert P. Houston


Rachel Klotzman
603 Mesquite Lane
Victoria TX 77904
rachel@klotzmanlaw.com


                            Certificate of Compliance

I hereby certify that the applicable parts of the Brief of Cross Appellee contains a
total of 2,400 words, as verified by the software of Word Perfect X5, in
compliance with Tex. R. App. P 9.4(I)(2)(B)

                                 /s/ Robert P. Houston
                                 Robert P. Houston




                                         11
