                                   NO. 07-01-0305-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                    AUGUST 20, 2002

                          ______________________________


             CLARA HENRY, TEMPORARY GUARDIAN OF THE PERSON
                     AND ESTATE OF DONNA LOTT SMITH,
               AN INCAPACITATED PERSON, ET AL., APPELLANTS

                                             V.

                      TRUCK OFFICE OF AMERICA, INC. AND
                MILLENIUM INSURANCE SERVICES, INC., APPELLEES


                        _________________________________

              FROM THE PRO BATE COURT NO. 1 OF HARRIS COUNTY;

              NO. 298,667-401; HONORABLE RUSSELL AUSTIN, JUDGE

                          _______________________________


Before BOYD, C.J., and QUINN and REAVIS, JJ.


       Appellants Clara Henry, Temporary Guardian of the Person and Estate of Donna Lott

Smith, an incapacitated person, LaDonya Sm ith, Traci Sm ith, and Verlon Sm ith (collectively

the Smiths) present this appeal from a judgment that they take nothing on their action

against Truck Office of America, Inc. (Truck Office) and Millenium Insurance Services, Inc.
(Millenium) for the wrongful death of W alter Smith and for personal injuries sustained by

Donna Lott Sm ith. Presenting one point of error, the Smiths contend the trial court erred

in granting the summ ary judgment based on the contention that Truck Office and Millenium

owed no legal duty because the Sm iths produced sufficient evidence to support a duty

arising out of Restatement (Second) of Torts § 324A (1965). Based on the rationale

expressed herein, we affirm.


        On the evening of May 22, 1998, a tractor-trailer truck owned and operated by Sprint

Transportation became disabled and was stopped on the highway. The driver of the truck

did not place any warning devices on the highway nor activate his emergency flashers.

W hile W alter Smith and his wife, Donna Lott Smith, were traveling in the same direction as

the truck was stopped, their vehicle collided with the truck. W alter was killed and Donna

sustained disabling injuries. The Sm ith family filed suit against Sprint Transportation, the

driver of the truck, and several other entities involved in ownership of the trailer. Suit was

also filed against Truck Office and Millenium, who provided insurance coverage for Sprint

Transportation. All claim s were settled except those against Truck Office and Millenium.

The Smiths contend on appeal that Truck Office and Millenium assumed or undertook two

duties, to-wit:


       •          affirmatively undertook to im prove Sprint Transportation’s safety
                  performance; and


       •          assumed a duty owed by Sprint Transportation to the traveling public--
                  the duty to operate its fleet safely.



                                                2
Before consideration of the Smiths’ point of error, we first set out the standard of review for

a traditional motion for summary judgment.


                                 STANDARD OF REVIEW


       In reviewing a summ ary judgment, this Court must apply the standards established
in Nixon v. Mr. Property Management, 690 S.W .2d 546, 548-49 (Tex. 1985), which are:


       1. The m ovant for sum mary judgment h0as 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
       sum mary judgment, evidence favorable to the non-movant will be taken as
       true.

       3. Every reasonable inference must be indulged in favor of the non-movant
       and any doubts resolved in its favor.


       For a party to prevail on a motion for summary judgment, he must conclusively

establish the absence of any genuine question of m aterial fact and that he is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all

essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W .2d 59 (Tex. 1986), or negate

at least one ess ential element of the non-movant's cause of action.          Randall's Food

Markets, Inc. v. Johnson, 891 S.W .2d 640, 644 (Tex. 1995).           Once the movant has

established a right to sum mary judgment, the non-movant has the burden to respond to the

motion for summ ary judgment and present to the trial court any issues that would preclude

sum mary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W .2d 671, 678

(Tex. 1979); Barbouti v. Hearst Corp., 927 S.W .2d 37, 64 (Tex.App.--Houston [1st Dist.]


                                              3
1996, writ denied). Issues not expressly presented to the trial court by written motion,

answer, or other response shall not be considered on appeal as grounds for reversal. Tex.

R. Civ. P. 166a(c). Further, all theories in support of or in opposition to a motion for

sum mary judgm ent m ust be expressly presented in writing to the trial court. Casso v.

Brand, 776 S.W .2d 551, 553 (Tex. 1989). W here, as here, a summ ary judgment does not

specify or state the grounds relied on, the sum mary judgm ent will be affirmed on appeal if

any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W .2d

567, 569 (Tex. 1989); Insurance Co. Of N. Am. v. Security Ins., 790 S.W .2d 407, 410

(Tex.App.--Houston [1st Dist.] 1990, no writ).


       Millenium was the local retail insurance agent for Sprint Transportation. For several

years before the accident, Truck Office, a general agent for the insurance carrier, had

worked with Millenium in the placem ent and issuance of liability insurance for the trucks

owned and operated by Sprint. Although the Sm iths concede “that in the usual business

setting a retail broker and a managing agent would have no duty to assist a client trucking

company in safety issues,” they contend that by its letter of November 26, 1997, Millenium,

for itself and on behalf of Truck Office, affirmatively undertook to provide assistance to

Sprint. According to the letter, the local agent com pared the unit cost for the prior year and

advised that the new rate would be higher because of the prior experience.1 The letter

concluded:




       1
       The per unit cost for the prior year was $3,700 and the new cost was $4,008 on a
monthly reporting basis.

                                              4
       Niecy, your cooperation and efforts to work on improving losses has helped
       before. John Kemp is being assigned to provide you with assistance and
       together we think that losses can be reduced and if they are we will all
       benefit.

       John is planning a visit to your office next Tuesday and we need to review this
       status next week.

       You know how m uch I appreciate your business and I am pleased to be able
       to offer this incentive to reduce the expense of insurance.


The Smiths contend that by this letter, Millenium and Truck Office assumed duties as

provided by Restatement (Second) Torts § 324A (1965) as follows:


       § 324 A. Liability to Third Person for Negligent Performance of Undertaking
       One who undertakes, gratuitously or for consideration, to render services to
       another which he should recognize as necessary for the protection of a third
       person or his things, is subject to liability to the third person for physical harm
       resulting from his failure to exercise reasonable care to protect his
       undertaking, if


              (a) his failure to exercise reasonable care increased the risk of
              such harm, or

              (b) he has undertaken to perform a duty owed by the other to
              the third person, or

              (c) the harm is suffered because of reliance of the other or the
              third person upon the undertaking.

The duties which the Sm iths alleged were undertaken or assum ed were initially stated in

their sixth amended petition. As m aterial here, by that pleading, they alleged:


       •      Specifically, some one or more of the Insurance Defendants undertook
              the duty and responsibility of “screening” or “approving” drivers who
              sought employment with the Trucking Defendants.



                                               5
       •      Furthermore, som e one or more of the Insurance Defendants
              undertook the responsibility and duty to monitor the general safety
              practices of certain Trucking Defendants, including Sprint
              Transportation.


W ithout presenting any special exceptions to the Smiths pleadings,2 by separate motions

for summ ary judgment filed October 20 and 25, 2000, Millenium and Truck Office expressly

alleged that they did not have any duty to (1) screen or approve Sprint’s drivers or (2)

monitor general safety practices of Sprint; however, before the motions were heard, the

Smiths filed their seventh and eighth amended petitions.3


                                Claims Against Millenium


       By their seventh amended petition filed January 2, 2001, the Smiths amended their

claims regarding assumed duties.       As restated, they contended that Millenium (1)

undertook to provide the services set forth in the November 26, 1997 letter: to assign John

Kemp to assist Sprint in reducing its losses and insurance claims, and (2) negligently

performed its undertaking to obtain a report of the driver’s record. Notwithstanding the

substantial amendment of the Smiths’ claims, Millenium did not amend its motion for



       2
       See Massey v. Armco Steel Co., 652 S.W .2d 932, 934 (Tex. 1983); Higbie Roth v.
Houston Shell & Concrete, 1 S.W .3d 808, 811 (Tex.App.--Houston [1st Dist.] 1999, pet.
denied).
       3
        The Sm iths do not present a point or issue contending that Millenium and Truck
Office should have am ended or supplem ented their motions for sum mary judgment. See
generally Smith v. Atlantic Richfield Co., 927 S.W .2d 85, 88 (Tex.App.--Houston [1st Dist.]
1996, writ denied) (holding that a motion for summ ary judgm ent be amended or
supplemented after a petition is amended to address new causes of action and to dispose
of the entire case).

                                             6
sum mary judgment to address them, but instead presented its motion to the trial court,

which was granted by order signed January 11, 2001.4


                               Claims Against Truck Office


       The Smiths’ pleadings were again amended by an eighth amended petition filed on

February 20, 2001. By this amendm ent, Sm ith alleged that Truck Office (1) undertook to

provide the services per the November 26, 1997 letter and to assign John Kemp to assist

Sprint in reducing its losses and insurance claims, and (2) that the undertaking to obtain a

driving record was “negligently obtained.”5 Truck Office did not amend its motion to address

the amended claims, but instead presented its motion for summary judgment, which was

granted by order signed March 2, 2001.


       After the two m otions were granted, the Smiths announced a settlement with other

parties. Then, on June 29, 2001, the trial court signed a Modified Final Judgment which,

among other things, provided that based upon the two summary judgments, the Smiths take

nothing against Millenium and Truck Office. Neither order granting summ ary judgment

specifies or states the grounds relied on by the trial court. Although the motions were not

presented as no-evidence motions under Rule 166a(i), by their point of error, the Sm iths

assert that they produced sufficient evidence to support two duties:


       4
         The order bears date of March 2, 2000; however, other portions of the record and
letter from counsel to the clerk requesting the record confirm that the order was signed on
March 2, 2001.
       5
       The second duty alleged was directed to Millenium; however, its motion for sum mary
judgm ent had already been signed at the time of the am endm ent.

                                             7
         •        affirmatively undertook to improve Sprint Transportation’s safety
                  performance; and
         •        assumed a duty owed by Sprint Transportation to the traveling public--
                  the duty to operate its fleet safely.


Based upon our examination of the record, the two alleged duties were not raised in the trial

court.


         Issues to be tried are defined by the pleadings and the pleadings should give fair and

adequate notice of the facts upon which the party relies so that the other party may properly

prepare a defense. Murray v. O & A Express, Inc., 630 S.W .2d 633, 636 (Tex. 1982).

Because the pleadings ”on file at the time of the hearing“ are the controlling pleadings for

purposes of sum mary judgment practice, see Rule 166a(c) of the Texas Rules of Civil

Procedure, and only issues “expressly presented” may be considered on appeal as grounds

for reversal, Clear Creek Basin Authority, 589 S.W .2d at 673, we must determine which of

the duties set out in the seventh and eighth petitions comport with the two duties which the

Smiths contend were established for summ ary judgment purposes by their sum mary

judgment evidence. Our com parison of the duties alleged in the seventh amended petition 6

with the two duties raised by the Smiths on appeal demonstrates that the duties asserted

on appeal were not presented in the trial pleading or otherwise. Similarly, the two duties

asserted on appeal were not presented in the eighth petition.7




         6
             The live pleading when Millenium’s motion was granted.
         7
             The live pleading when Truck Office’s motion was granted.

                                                8
       As an appellate court, we are not authorized to reverse a trial court’s judgment in the

absence of properly assigned error. State Bd. of Ins. v. Westland Film Indust., 705 S.W .2d

695, 696 (Tex. 1986). Moreover, because the two duties which the Smiths contend were

supported by their evidence and precluded sum mary judgm ent were not expressly

presented by the live pleadings or otherwise in the trial court, they may not be considered

for the first time on appeal as reasons for reversal of the sum mary judgment. Clear Creek

Basin Authority, 589 S.W .2d at 678-79; see also Cox v. Klug, 855 S.W .2d 276, 279

(Tex.App.--Amarillo 1993, no writ). The Smiths’ point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                           Don H. Reavis
                                             Justice

Do not publish.




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