                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-08-191-CV


ROBERT V. MARK AND                                               APPELLANTS
DIANNE L. MARK
                                       V.

HOUSEHOLD FINANCE                                                   APPELLEE
CORPORATION III
                                   ------------

        FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      The trial court granted summary judgment for Appellee Household Finance

Corporation III on its foreclosure action against Appellants Robert V. Mark and

Dianne L. Mark (collectively, “the Marks”), and the Marks appeal. Because we

hold that the trial court erred by granting summary judgment, we reverse.

      Household Finance sued the Marks seeking judicial foreclosure of the

Marks’ homestead property under a deed of trust.       After the Marks filed a

general denial, Household Finance filed a traditional motion for summary
judgment, asserting that it had brought suit on a sworn account under rule 185

of the rules of civil procedure and that its evidence established its right to

recover on that cause of action as a matter of law. The trial court granted

summary judgment, and this appeal followed.

      We review a summary judgment de novo.1          A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential

elements of the claim.2 When reviewing a summary judgment, we take as true

all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. 3

      The Marks bring four points on appeal. In their first point, they assert

that summary judgment was improper because Household Finance sought and

was granted summary judgment on an impermissible basis under a sworn

account theory inapplicable to the case. They allege that Household Finance’s

claims, which relate to an alleged balance on a promissory note, are not

susceptible to resolution by an action on a sworn account. Because Household

Finance did not seek summary judgment on a ground for which such relief


      1
          … Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
      2
      … See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,
60 (Tex. 1986).
      3
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).

                                        2
might be granted, they argue, the trial court’s summary judgment should be

reversed.

      To constitute an action on a sworn account under rule 185, “the account

or liquidated money demand based upon a written contract must involve a claim

for goods, wares, merchandise, personal services rendered or labor done or

labor or materials furnished.” 4 A suit to foreclose on real property, on the other

hand, is a legal proceeding seeking the satisfaction of a debt through

foreclosure of lien on real property.5       The basis of such an action is a

promissory note secured by a deed of trust or mortgage on real property.6 In

Household Finance’s brief, it states that its suit was a suit to foreclose on a lien

and not a suit on a sworn account.

      In its original petition, Household Finance did seek judicial foreclosure of

the deed of trust. But in its summary judgment motion, it stated that its cause

of action was “based on an itemized and verified statement of account.” It

further stated that the “evidence establishes [Household Finance’s] right to



      4
     … Great-Ness Prof'l Servs., Inc. v. First Nat'l Bank of Louisville, 704
S.W.2d 916, 917 (Tex. App.—Houston [14th Dist.] 1986, no writ).
      5
     … See Sloan v. Owners Assoc. of Westfield, Inc., 167 S.W.3d 401,
403–04 (Tex. App.—San Antonio 2005, no pet.).
      6
      … See Cunningham v. Buel, 287 S.W. 683, 686 (Tex. Civ. App.—San
Antonio 1926, no writ).

                                         3
recover under the Sworn Account cause of action.” It unequivocally states that

“[Household Finance’s] suit is brought on a sworn account under [rule 185].”

Finally, it argued that the Marks had not filed a verified denial of the sworn

account, entitling Household Finance to judgment as a matter of law under rule

185.7        Thus, although Household Finance’s pled cause of action was for

foreclosure of the deed of trust, its summary judgment motion sought judgment

based on the right to judgment on an action on a sworn account.

        Summary judgment may only be granted on the specific grounds asserted

in the motion.8 In Great-Ness Professional Services, Inc. v. First National Bank

of Louisville, the Fourteenth Court of Appeals considered whether the trial court

erred by granting summary judgment on a breach of a lease agreement action

when the only specific ground for relief asserted in the summary judgment

motion was that on a sworn account.9 There was no allegation in the motion

that the specific ground for recovery was breach of contract or breach of a


        7
       … See Tex. R. Civ. P. 185 (stating that if a party resisting a sworn claim
under the rule “does not timely file a written denial, under oath, he shall not be
permitted to deny the claim, or any item therein”).
        8
      … McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.
1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979); see also Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.
1993) (holding that “a summary judgment cannot be affirmed on grounds not
expressly set out in the motion or response”).
        9
            … 704 S.W.2d at 917.

                                        4
lease agreement.10 The court noted that “[a] lawsuit based upon breach of a

lease agreement is not a suit based upon a sworn account because there has

been no purchase and sale, and title to personal property has not passed from

one party to the other.” 11 And a movant must establish its right to summary

judgment on issues expressly presented to the trial court; the movant “cannot

be granted a judgment as a matter of law on a cause of action not specifically

addressed in the summary judgment proceeding.” 12 Although the movant’s

motion may have alluded to a cause of action based upon a breach of a lease

agreement, the trial court could not infer or imply grounds for summary

judgment.13        Accordingly, the court of appeals concluded that because the

movant’s cause of action was for breach of a lease agreement, but its summary

judgment ground was for an action on a sworn account, the trial court erred by

granting summary judgment.14

      Similarly, in this case, the only specific ground Household Finance

expressly asserted in its motion was for an action on a sworn account. An



      10
           … Id.
      11
           … Id.
      12
           … Id. at 918 (emphasis added).
      13
           … Id.
      14
           … Id.

                                         5
action for judicial foreclosure on a lien on real property is not an action on a

sworn account because it is not a claim founded upon the provision of personal

property or personal services.15 Thus, because the only specific ground in the

summary judgment motion was Household Finance’s right to judgment on an

action on a sworn account, the trial court erred by granting summary judgment

for Household Finance on its foreclosure action.

      We note that this court’s opinion in Gillis 16 is distinguishable. The issue

in that case was whether the trial court had granted summary judgment on a

cause of action that was never pled. MBNA referred to its claim as a “suit on

an account,” i.e., a credit card account.    In its summary judgment motion,

MBNA did not characterize its suit as a “suit on a sworn account,” it did not

use other language to indicate its claim was for a suit on a sworn account (for

example, by asserting the lack of a verified denial as a ground for judgment),

and it specifically incorporated its pleadings by reference and prayed for

summary judgment “as prayed for in [its original petition].”        That original


      15
        … See Tex. R. Civ. P. 185; see, e.g., Dulong v. Citibank (S.D.), N.A.,
261 S.W.3d 890, 893 n.3 (Tex. App.—Dallas 2008, no pet.) (noting that suit
on account “requires personal property or services be provided by the creditor
to the debtor”); Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex.
App.—Houston [14th Dist.] 1993, no writ) (holding that action on a promissory
note is not included within definition of action on a sworn account).
      16
      … Gillis v. MBNA Am. Bank, N.A., No. 02-08-00058-CV, 2009 WL
51027 (Tex. App.—Fort Worth Jan. 8, 2009, no pet.) (mem. op.).

                                        6
petition asked the trial court to confirm an arbitration award on its suit on an

account that it had brought against Gillis. Its motion for summary judgment

was clearly based on and pointed to the claims it pled in its original petition.

And the ground asserted by incorporation was the ground on which summary

judgment was granted. That case does not stand for the proposition that a trial

court may grant summary judgment on a ground not asserted in a summary

judgment motion.

      Here, the issue is whether the only ground asserted in Household

Finance’s summary judgment motion is one for which it could obtain the judicial

foreclosure it prayed for in its petition. Unlike in Gillis, Household Finance did

not expressly incorporate its pleadings into its motion for the purpose of stating

summary judgment grounds, so this court could not consider the pleadings as

alleging another ground for summary judgment.17 Although nonmovants must

make an exception should they wish to complain on appeal that the movant’s

grounds were unclear or ambiguous,18 the Marks make no such complaint here.


      17
        … See, e.g., Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 272
(Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (noting that the parties filed
summary judgment motions that did not themselves state any grounds but
instead incorporated by reference other motions or responses and that
“[n]ormally, summary judgment grounds must be stated in the motion itself, not
in an attached brief or evidence” but that “no party complains on appeal of any
other party’s use of the incorporation-by-reference procedure”).
      18
           … McConnell, 858 S.W.2d at 342.

                                        7
Household Finance had to establish its entitlement to summary judgment on the

issue expressly presented to the trial court and could not be granted judgment

as a matter of law on a cause of action not specifically addressed in its motion

for summary judgment. This court’s holding in Gillis did not deviate from the

supreme court’s mandate that “‘[a]n appellate court cannot “read between the

lines, infer or glean from the pleadings or the proof” any grounds for granting

the summary judgment other than those grounds expressly set forth before the

trial court in the motion for summary judgment.’” 19 We sustain the Marks’ first

point.

         Having sustained the Marks’ first point, which is dispositive, 20 we reverse

the judgment of the trial court and remand this case for further proceedings.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

CAYCE, C.J. filed a dissenting opinion.

DELIVERED: August 31, 2009


         19
        … Id. (quoting Great-Ness Prof’l Servs., 704 S.W.2d at 918); see also
Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (stating that
“[a] summary judgment movant may not be granted judgment as a matter of
law on a cause of action not addressed in a summary judgment proceeding” and
that “in order to conclusively establish the requisite essential element or
elements, the motion must identify or address the cause of action or defense
and its elements”) (emphasis added).
         20
              … See Tex. R. App. P. 47.1.

                                            8
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-191-CV


ROBERT V. MARK AND                                                APPELLANTS
DIANNE L. MARK
                                        V.

HOUSEHOLD FINANCE                                                     APPELLEE
CORPORATION III
                                    ------------

         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                          DISSENTING OPINION

                                    ------------

      I respectfully dissent. The summary judgment order reflects that the relief

awarded by the trial court—a judicial foreclosure to recover on a loan agreement

and deed of trust—is exactly the relief Household sought in its live pleading and

in its summary judgment motion.       The record does not contain any special

exceptions from the Marks seeking clarification about the relief sought by way

of the summary judgment motion. Under these circumstances, any error in the

summary judgment motion in identifying or labeling the cause of action under
which relief was sought is harmless.1 I would, therefore, overrule the Marks’s

first point.

      In their second point, the Marks contend that summary judgment was

improper because Household did not establish legal ownership of the promissory

note and lien upon which it sued. Under Texas law, to recover on a promissory

note, a plaintiff must prove four elements: (1) the existence of the note; (2)

that defendants signed the note; (3) that plaintiff is the legal owner and holder

of the note; and (4) that a certain balance is due and owing on the note.2

      In FFP Marketing Co. v. Long Lane Master Trust IV,3 we stated that “a

photocopy of a note attached to the affidavit of the holder, who swears that

it is a true and correct copy of the note, is sufficient as a matter of law to prove

the status of owner and holder of the note absent controverting summary

judgment evidence.” 4 Household verified two documents—its original petition




      1
          … See Tex. R. App. P. 44.1(a)(1).
      2
       … See Montgomery First Corp. v. Caprock Inv. Corp., 89 S.W.3d 179,
186 (Tex. App.—Eastland 2002, no pet.); see also Cadle Co. v. Bankston &
Lobingier, 868 S.W.2d 918, 921 (Tex. App.—Fort Worth 1994), writ denied
per curiam on other grounds, 893 S.W.2d 949 (Tex.) (stating that plaintiff must
prove that “plaintiff is the present holder of the note” to recover under the
note), cert. denied, 516 U.S. 810 (1995).
      3
          … 169 S.W.3d 402 (Tex. App.—Fort Worth 2005, no pet.).
      4
          … Id. at 410.

                                         2
and the demand letter from its counsel—that identify it as the legal owner and

holder of the note. This evidence sufficiently established that Household owned

and held the note and lien, shifting the burden to the Marks to present

controverting summary judgment evidence. 5 The Marks did not present any

summary judgment evidence. I would, therefore, overrule the Marks’s second

point.

         In their third and fourth points, the Marks challenge Household’s summary

judgment evidence as incompetent, inconsistent, and unreliable. I address each

of the Marks’s specific complaints in turn:

         The Marks assert that the affidavit of Tom Lenz, filed in support of

Household’s summary judgment motion, is incompetent as a business record

affidavit. However, the Marks did not obtain a ruling from the trial court on any

objections to the Lenz affidavit. Accordingly, this ground is waived.6

         The Marks also argue that the Lenz affidavit is incompetent because Lenz

does not assert directly in the affidavit that Household is the legal owner and

holder of the note and lien.       But the Lenz affidavit states that Lenz has

reviewed the assertions of fact in Household’s original petition and swears that


         5
             … See id.
         6
       … See Tex. R. App. P. 33.1(a); Kyle v. Countrywide Home Loans, Inc.,
232 S.W.3d 355, 358 (Tex. App.—Dallas 2007, pet. denied); see also Tex. R.
Evid. 902(10)(b).

                                         3
those assertions are true and correct. Among the assertions in Household’s

petition is that Household “is the legal owner and holder of the Loan Agreement

and Deed of Trust.” The affidavit sufficiently alleged ownership.

      The Marks further assert that the Lenz affidavit is unreliable and

inconsistent because it refers to an interest rate different than the one stated

on the promissory note. The Marks failed, however, to present this issue to the

trial court and raise it for the first time on appeal. This issue is, therefore,

waived.7

      Finally, the Marks contend that Household’s failure to produce the

promissory note as part of its summary judgment evidence precludes summary

judgment for Household.       The Marks overlook that Household did not sue

directly on the note but rather sought a declaratory judgment for judicial

foreclosure based on the loan agreement and deed of trust. Accordingly, I

would hold that the trial court did not err by granting summary judgment,

despite the absence of the promissory note from the summary judgment proof,8

and overrule the Marks’s third and fourth points.



      7
          … See Tex. R. App. P. 33.1(a).
      8
        … See Kyle, 232 S.W.3d at 362 (rejecting argument that original note
was required as proof when lender did not seek to recover on note but sued to
quiet title and for declaratory judgment for judicial foreclosure pursuant to deed
of trust).

                                           4
     For the foregoing reasons, I would affirm the trial court’s summary

judgment.




                                            JOHN CAYCE
                                            CHIEF JUSTICE

DELIVERED: August 31, 2009




                                   5
