      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00821-CV



                                  Erik Christensen, Appellant

                                                  v.

                                  Coursetrends, Inc., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
         NO. D-1-GN-10-001332, HONORABLE TIM SULAK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In one point of error, appellant Erik Christensen contends that the trial court erred in

granting traditional and no-evidence summary judgment on his breach of contract claim against

appellee Coursetrends, Inc. For the following reasons, we affirm.


                                         BACKGROUND

               Christensen, an at-will employee with an employment contract, worked for

Coursetrends from July 2007 to February 2010. Christensen sued Coursetrends in April 2010,

asserting fraud and breach of contract claims and requesting, among other relief, exemplary damages.

As to his breach of contract claim, he alleged that Coursetrends’ owner Alan Stalcup agreed to pay

him 15% of increased profits for the year 2009 as compared to 2008 as an incentive bonus.
According to Christensen, the bonus was to be based on the increased profits from Coursetrends and

two other companies owned by Stalcup, and Coursetrends only partially performed the agreement.1

               Coursetrends moved for summary judgment on all claims brought by Christensen on

traditional and no-evidence grounds. See Tex. R. Civ. P. 166a(c), (i). In the no-evidence portion

of the motion, Coursetrends challenged the elements of Christensen’s breach of contract claim. In

the traditional portion of the motion, Coursetrends asserted the following grounds as to Christensen’s

breach of contract claim: (i) the contract was illusory and void for want of consideration;

(ii) Christensen could not allege oral contract terms that conflicted with the written performance

review; (iii) the alleged contract did not contain all of the essential terms, namely the source of the

payment; and (iv) Christensen could not recover damages from entities that were not parties to the

case. Coursetrends also asserted as to all of Christensen’s claims that proof of damages required

expert testimony and Christensen had not designated an expert. Coursetrends attached evidence to

its motion, including Christensen’s performance review dated March 11, 2009.

               Christensen filed a response to the motion and attached exhibits to his motion,

including an affidavit by Christensen. After a hearing, the trial court granted Coursetrends’ motion

without specifying the basis for its ruling. This appeal followed.


                                    STANDARD OF REVIEW

               We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). If the trial court does not specify the grounds for its


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          Christensen also sued Alan Stalcup but non-suited his claims against Stalcup without
prejudice. Thus, Stalcup is not a party on appeal.

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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, 216 (Tex. 2003).

               To prevail on a traditional motion for summary judgment, a defendant must

conclusively negate at least one essential element of each of the plaintiff’s causes of action or must

conclusively establish each element of an affirmative defense. Tex. R. Civ. P. 166a(c); Long

Distance Int’l, Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347, 350–51 (Tex. 2001);

Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). A movant seeking a

no-evidence summary judgment must assert 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). “The court must grant the motion unless the respondent produces summary

judgment evidence raising a genuine issue of material fact” on the challenged elements. Id.; see

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006).

               When a party moves for traditional and no-evidence summary judgment, we first

review the trial court’s decision under the no-evidence standard. See Tex. R. Civ. P. 166a(i);

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).


                                           DISCUSSION

Fraud Claim and Exemplary Damages

               On appeal, Christensen does not challenge the portion of the summary judgment on

his fraud claim and request for exemplary damages. Thus, we must affirm those portions of the

judgment. See Western Steel Co. v. Altenburg, 206 S.W.3d 121, 124 (Tex. 2006) (“[A]bsent

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fundamental error, an appellate court should refrain from deciding cases on legal errors not assigned

by the parties.”); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987) (“It is error for a court

of appeals to consider unassigned points of error.”); Montes v. Pendergrass, 61 S.W.3d 505, 508

(Tex. App.—San Antonio 2001, no pet.) (upholding summary judgment in favor of defendant

because plaintiff did not assert point of error as to ground raised by defendant in motion for summary

judgment and noting that appellate courts generally cannot reverse trial court judgment without

properly assigned error).


Breach of Contract Claim

               In his point of error, Christensen attacks the grounds that Coursetrends raised in its

motion for summary judgment on Christensen’s breach of contract claim. Because the trial court did

not specify the basis for its ruling, Christensen must show that none of these grounds was

meritorious. See Knott, 128 S.W.3d at 216. We begin with the no-evidence ground, which is

dispositive. Merriman, 407 S.W.3d at 248; Knott, 128 S.W.3d at 216.

               Christensen asserts that Coursetrends’ no-evidence motion on his breach of contract

claim should have been denied based on Christensen’s affidavit and the performance review.

Coursetrends responds that Christensen cannot rely on his affidavit and the performance review on

appeal because his response to the no-evidence motion was limited to a general objection. In the

section of his response addressing the no-evidence motion, Christensen argued in total:


       Plaintiff hereby objects to the motion because it does not clearly state which elements
       of Plaintiff’s claims that Defendants are asserting Plaintiff has no evidence. A
       no-evidence motion must be specific in challenging the evidentiary support for an
       element of a claim. See TRCP 166a(i), Notes & Comments. The rule does not allow

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        “conclusory motions or general no-evidence challenges to an opponents case.” Id.;
        see also Abraham v. Ryland Mtg. Co., 995 S.W.2d 890, 892 (Tex. App.—El Paso
        1999). As such, Plaintiff objects to the motion in its entirety.[2]


Coursetrends argues that Christensen is limited on appeal to this objection and, because he did not

raise this objection on appeal, we must affirm the trial court’s judgment on no-evidence grounds.

We agree.

                In his response to Coursetrends’ motion for summary judgment, Christensen referred

the court to “all pleadings on file at the time of the hearing” and the affidavit of Christensen, but the

portion of the response addressing the no-evidence motion did not address or provide any analysis

to direct the trial court to the particular evidence relied on by Christensen to create fact issues as to

the elements of his breach of contract claim. See City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678 (Tex. 1979) (“The written answer or response to the motion [for summary

judgment] must fairly apprise the movant and the court of the issues the non-movant contends should

defeat the motion.”); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San

Antonio 2003, no pet.) (holding that non-movant who did not “cite, quote, or otherwise point out to

the trial court testimony she relied on to create a fact issue” failed to carry her burden to defeat no-

evidence summary judgment); see also Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex.

App.—San Antonio 2006, no pet.) (“[W]hen presenting summary-judgment proof, a party must

specifically identify the supporting proof on file that it seeks to have considered by the trial court.”).




        2
         Although Christensen says this, Coursetrends’ motion for no-evidence summary judgment
specifically listed elements of Christensen’s breach of contract claim. See Tex. R. Civ. P. 166a(i).

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                In his briefing on appeal, Christensen provides analysis of the summary judgment

evidence that he contends creates genuine issues of material fact as to the elements of his breach of

contract claim, but we may not reverse the trial court’s summary judgment on an issue not expressly

presented to the trial court. See Tex. R. Civ. P. 166a(c) (“Issue not expressly presented to the trial

court by written motion, answer or other response shall not be considered on appeal as grounds for

reversal.”); Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 105–07 (Tex.

App.—Dallas 2009, pet. denied) (applying Rule 166a(c) and holding appellant could not raise on

appeal arguments not made in its response to motion for summary judgment); see also Tex. R. App.

P. 33.1 (preservation of error prerequisite to presenting complaint on appeal); Anderton v. Cawley,

378 S.W.3d 38, 56 (Tex. App.—Dallas 2012, no pet.) (noting that arguments on appeal did not

comport with response to motion for no-evidence summary judgment and concluding that appellants

failed to preserve argument for appeal because they did not include argument in response to

trial court).

                Thus, we conclude that Christensen failed to carry his burden to defeat the

no-evidence summary judgment. See Tex. R. Civ. P. 166a(i) (respondent’s burden to present some

evidence raising genuine issue of material fact on challenged elements). Because we conclude that

Coursetrends’ no-evidence ground was meritorious, we need not address Christensen’s challenges

to the other grounds raised in Coursetrends’ summary judgment motion. See Knott, 128 S.W.3d

at 216.


                                          CONCLUSION

                For these reasons, we affirm.

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                                             __________________________________________

                                             Melissa Goodwin, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: September 3, 2014




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