      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00391-CV



                                   Lynda S. David, Appellant

                                                 v.

                              Williamson County, Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 03-561-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               On July 17, 2001, appellant Lynda S. David, while inside a Williamson County

courthouse, fell on some stairs and was injured. On July 18, 2003, David filed suit against

the appellee Williamson County, alleging tort claims of negligence and premises liability.

Williamson County filed a motion for summary judgment in March 2009. On April 6, 2009, prior

to the district court’s hearing on Williamson County’s motion for summary judgment, David filed

an amended petition in which she added for the first time a cause of action under the federal

Americans with Disabilities Act (ADA). See 42 U.S.C. § 12132 (2006) (prohibiting exclusion,

by reason of disability, from participation in services, programs, or activities of public entity).

Williamson County did not amend its motion for summary judgment or otherwise address the

new ADA claim in its motion for summary judgment. On April 17, 2009, the district court granted

Williamson County’s motion for summary judgment and entered a take nothing judgment against

David on all her claims.
                On appeal, David asserts that the district court erred in entering judgment on her

cause of action under the ADA. Summary judgment is proper if “there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law on the issues expressly

set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c) (emphasis

added); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“A motion

must stand or fall on the grounds expressly presented in the motion.”); Klein v. Reynolds,

Cunningham, Peterson & Cordell, 923 S.W.2d 45, 49 (Tex. App.—Houston [1st Dist.] 1995,

no writ) (op. on reh’g) (“[A] defendant is not entitled to a summary judgment on the entire case

unless the defendant files a [motion for] summary judgment that addresses, and then conclusively

demonstrates, that the plaintiff is not entitled to recover on any theory of liability alleged.”). Neither

Williamson County’s motion for summary judgment nor any answer or response in the record

addresses David’s ADA claim. The motion addresses only David’s tort claims and is based solely

on provisions of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.061,

.101 (West 2005). Therefore, the district court’s dismissal of David’s ADA claim was error.

                We reverse the district court’s dismissal of David’s cause of action under the ADA

and remand for further proceedings consistent with this opinion.



                                                __________________________________________

                                                G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Reversed and Remanded

Filed: April 15, 2010

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