Opinion issued May 10, 2012




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-11-00117-CV
                           ———————————
                       ADRIENE L. SIBLEY, Appellant
                                       V.
 JULIA VICTORIA ECKHARDT & MARGARET ECKHARDT, Appellees



                   On Appeal from the 55th Judicial District
                            Harris County, Texas
                      Trial Court Case No. 2009-49295



                         MEMORANDUM OPINION

      Adriene L. Sibley appeals the trial court’s take-nothing summary judgment

rendered in favor of appellees Julia Victoria Eckhardt and Margaret Eckhardt. In

her first three issues, Sibley challenges the appellees’ standing and the summary-
judgment evidence. In her remaining issues, Sibley contends that the trial court

erred by granting summary judgment because the Eckhardts’ motion did not

specifically present a claim or argument as to any of her causes of action and did

not state an affirmative defense.      Because we conclude that the motion for

summary judgment was not sufficient to support the order, we reverse the trial

court’s judgment and remand for further proceedings.

                                    Background

      In 1991, Julia Eckhardt’s parents bought a house in Harris County.

Approximately ten years later, the parents divorced.        In accordance with the

divorce decree, all interest in the house was conveyed to Julia’s father by her

mother, Margaret Eckhardt. Three years later, the property was conveyed to Julia

by her father. That same day, Julia sold the house to Adriene Sibley in an owner-

financed transaction.

      According to the terms of the deed of trust, Sibley was required to make

monthly mortgage payments, pay all property taxes and provide proof of such

payment annually, maintain an insurance policy on the property and provide proof

of insurance, and obey all laws, ordinances, and restrictive covenants applicable to

the property. In 2009, Julia’s attorney informed Sibley that she was in default of

the real estate lien note and deed of trust because she had failed to provide proof of

insurance coverage, proof of payment of ad valorem taxes, and proof of payment

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of the annual maintenance assessments. In addition, the demand letter informed

Sibley that the prior month’s mortgage payment was delinquent. Julia foreclosed

on the lien and evicted Sibley.

      Sibley filed suit, pro se, against Julia and Margaret, stating that she was

bringing causes of action for wrongful foreclosure with damages, breach of

contract, breach of covenant, trespass to try title, wrongful eviction, fraud, and civil

conspiracy. Sibley’s lawsuit was premised on an alleged forgery in the chain of

title, which preceded Julia’s and her parents’ ownership of the house. Sibley

contended that the earlier forgery in the chain of title rendered the lien and deed of

trust void and that Julia, therefore, could not foreclose based on void documents.

In her petition, Sibley made a series of factual allegations asserting forgery and

other fraudulent actions in various links of the chain of title and irregularities in the

foreclosure proceeding, including an allegation that the Eckhardts failed to provide

her with notice in the manner required by law.

      Julia and Margaret filed answers and counterclaims alleging that Sibley’s

lawsuit was frivolous. In each of their answers, the Eckhardts pleaded general and

specific denials, but neither pleaded any affirmative defense. The Eckhardts filed a

motion for summary judgment. The motion stated:

      Defendants’ Motion embraces their affirmative defenses as to all
      claims and issues raised by Plaintiff. There is no genuine issue as to
      any material fact necessary to establish each and every element of
      Defendant’s affirmative defenses, and Defendants are entitled to
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      judgment against Plaintiff, as a matter of law. Defendants seek entry
      of a “Take Nothing” Judgment against Plaintiff.

      The motion then described the history of the chain of title, beginning with

Julia’s parents’ purchase of the house. After reciting this history, the motion

stated:

      Plaintiff’s pleadings contain allegations of one or more defects in the
      chain of title concerning certain transactions which took place during
      the 1980s, well before any of the parties to this action acquired
      ownership of the property in question. Plaintiff fails to present
      evidence of any actual error in the chain of title, and all of Plaintiff’s
      claims are simply without merit.

      ....

      Plaintiff’s claim that there is a defect in the chain of title is simply
      without merit, as can be seen by the attached Exhibits. Defendants are
      guilty of no wrongdoing, and there is no merit to any of Plaintiff’s
      claims and allegations. Accordingly, Defendants hereby request this
      Court to enter a “Take Nothing” Judgment against Plaintiff.

The motion did not specifically mention or respond to the allegation of an earlier

forgery in the chain of title. Nowhere in the motion is any particular affirmative

defense identified or argued. The motion does not specifically identify any of

Sibley’s causes of actions or address any specific element thereof. The motion

does not refer to Rule of Civil Procedure 166a(c) (traditional motion for summary

judgment) or 166a(i) (no-evidence motion for summary judgment). It does not

include any legal authority, except for general assertions that actions were taken in

accordance with the Texas Property Code, and it does not explain how Sibley’s

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claim of a defect in the chain of title related to each—or any—of her causes of

action.

      Sibley did not respond to this motion, but approximately three months later,

she filed a traditional motion for summary judgment. Both parties’ summary

judgment evidence consisted of documents showing the chain of title to the

property. The Eckhardts’ summary-judgment evidence also included affidavits

from Julia and Margaret.

      Sibley sought permission to file a late response to the Eckhardts’ motion for

summary judgment, which the trial court denied, stating, “The Motion for

Summary Judgment will not be continued. The Court will, however, consider the

Plaintiff’s Motion for Summary Judgment filed on 1-10-11 as a Response to

Defendants’ Motion for Summary Judgment.”             The trial court granted the

Eckhardts’ motion, stating, “[T]he Court finds that there is no genuine issue as to

any material fact regarding Defendants’ affirmative defenses to the claims and

allegations raised by Plaintiff and that Defendants are entitled to judgment in this

cause, as a matter of law.” After the trial court dismissed the counterclaims, Sibley

filed a notice of appeal.

                                     Analysis

      We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

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844, 848 (Tex. 2009). When both sides move for summary judgment and the trial

court grants one motion and denies the other, we review the summary-judgment

evidence presented by both sides and determine all questions presented. Id. at 848;

Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). In such a

situation, we render the judgment the trial court should have rendered. Mann

Frankfort Stein & Lipp Advisors, 289 S.W.3d at 848; Agan, 940 S.W.2d at 81.

      The party moving for traditional summary judgment bears the burden of

showing that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); see also Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A plaintiff

moving for summary judgment must conclusively prove all essential elements of

its claim. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A

matter is conclusively established if reasonable people could not differ as to the

conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005). If the movant meets its burden, the burden then

shifts to the nonmovant to raise a genuine issue of material fact precluding

summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.

1995). The evidence raises a genuine issue of fact if reasonable and fair-minded

jurors could differ in their conclusions in light of all of the summary-judgment




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evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.

2007) (per curiam).

      A defendant moving for summary judgment must conclusively negate at

least one essential element of each of the plaintiff’s causes of action or

conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When reviewing a summary

judgment, a court of appeals should consider summary judgment grounds that the

trial court rules on and the movant preserves for appellate review that are necessary

to a final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d

623, 626 (Tex. 1996). In addition, in the interest of judicial economy, the appellate

court may consider other grounds that the movant preserved for review and the

trial court did not rule on. Id.

      A motion for summary judgment must “state the specific grounds therefor.”

TEX. R. CIV. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d

337, 341–42 (Tex. 1993) (“a motion for summary judgment must itself expressly

present the grounds upon which it is made”); City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671 (Tex. 1979).        A motion for summary judgment must

identify or address the cause of action or defense at issue and its elements. Black

v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). “[A] trial court cannot

grant a summary judgment motion on grounds not presented in the motion.”

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Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see McConnell, 858

S.W.2d at 341. “In determining whether grounds are expressly presented, we may

not rely on briefs or summary judgment evidence.” Sci. Spectrum, 941 S.W.2d at

912.

       When a motion does not state any grounds for summary judgment, the non-

movant should file exceptions in the trial court. McConnell, 858 S.W.2d at 342.

Nevertheless, Rule of Civil Procedure 166a(c) requires the party moving for

summary judgment to show that he is “entitled to judgment as a matter of law on

the issues expressly set out in the motion.” TEX. R. CIV. P. 166a(c). Therefore,

even if the non-movant did not except to the motion in the trial court, he may argue

on appeal that the motion did not set forth sufficient grounds for summary

judgment. McConnell, 858 S.W.2d at 342; Clear Creek Basin Authority, 589

S.W.2d at 678 (“While it would be prudent and helpful to the trial court for the

non-movant always to file an [exception,] answer or response, the non-movant

needs no [exception,] answer or response to the motion to contend on appeal that

the grounds expressly presented to the trial court by the movant’s motion are

insufficient as a matter of law to support the summary judgment.”). When a

motion states one or more grounds for summary judgment, summary judgment

cannot be upheld based on a different ground. Sci Spectrum, 941 S.W.2d at 912.




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      In Sibley’s fourth, fifth, and sixth issues, Sibley contends that the trial court

erred by granting summary judgment because the motion for summary judgment

did not raise an affirmative defense or present any claims or arguments to defeat

Sibley’s causes of action. The Eckhardts’ motion states that it “embraces their

affirmative defenses as to all claims and issues raised by [Sibley].” It further states

that “[t]here is no genuine issue as to any material fact necessary to establish each

and every element of Defendants’ affirmative defenses and Defendants are entitled

to judgment against [Sibley], as a matter of law.” Likewise, the final summary

judgment order recites that “the Court finds that there is no genuine issue as to any

material fact regarding Defendants’ affirmative defenses to the claims and

allegations raised by [Sibley] and that Defendants are entitled to judgment in this

cause, as a matter of law.”

      “An affirmative defense is a matter asserted in avoidance of a party’s

argument or position, rather than a matter asserted in denial of that party’s

position.” Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex.

App.—Dallas 2005, pet. denied); see Gorman v. Life Ins. Co. of N. Am., 811

S.W.2d 542, 546 (Tex. 1991) (“Pleading an affirmative defense permits

introduction of evidence which does not tend to rebut the factual propositions

asserted in the plaintiff's case, but which seeks to establish an independent reason

why the plaintiff should not recover. . . . In short, an affirmative defense is one of

                                          9
avoidance, rather than a defense in denial.”). The Eckhardts did not plead any

affirmative defense in their answers. Although an unpleaded affirmative defense

may support a summary judgment when raised in the motion, see McConnell, 858

S.W.2d at 339, the Eckhardts’ motion for summary judgment did not identify any

particular affirmative defense or any elements of an affirmative defense.           See

Roberts, 811 S.W.2d at 146 (“Grounds may be stated concisely . . . [b]ut they must

at least be listed in the motion.”). We hold that the motion for summary judgment

did not specifically state grounds of an affirmative defense that could support the

trial court’s judgment. TEX. R. CIV. P. 166a(c); McConnell, 858 S.W.2d at 341–42.

We sustain Sibley’s sixth issue.

      Although the trial court expressly based its ruling on affirmative defenses, in

the interest of judicial economy, we will consider all grounds for summary

judgment that the Eckhardts properly presented to the trial court. See Cincinnati

Life Ins., 927 S.W.2d at 625. Their motion for summary judgment stated that

Sibley was suing to set aside a “(deed of trust) foreclosure sale,” that the Eckhardts

sought entry of a take-nothing judgment against Sibley, that Sibley’s claims “are

simply without merit,” that Sibley’s “claim that there is a defect in the chain of title

is simply without merit, as can be seen by the attached Exhibits,” that “Defendants

are guilty of no wrongdoing,” and that “there is no merit to any of Plaintiff’s

claims and allegations.”

                                          10
      Aside from stating that Sibley was seeking to set aside a foreclosure sale, the

motion does not identify any of Sibley’s alleged causes of action. It does not refer

to any of the elements of any cause of action. See Black, 797 S.W.2d at 27. It

does not explain how the lack of merit in Sibley’s contention of an earlier forgery

in the chain of title relates to all of her alleged causes of action or why the court

should render a take-nothing judgment if presented with conclusive proof that there

is no defect in the chain of title. The recitation of facts and the history of the

transaction begins with Julia’s parents’ purchase of the house in question and does

not anywhere address the alleged earlier forgery.         Although the Eckhardts’

appellate brief fills many of the gaps apparent in the motion for summary

judgment, “summary judgments must stand on their own merits,” Clear Creek

Basin Authority, 589 S.W.2d at 678, and we cannot uphold a summary judgment

on the basis of “unstated” grounds. See Roberts, 811 S.W.2d at 144. Accordingly,

we conclude that the Eckhardts’ motion was insufficiently specific as to the

grounds upon which they sought summary judgment, and we hold that the trial

court erred by granting summary judgment. See McConnell, 858 S.W.2d at 342;

Siegert, 961 S.W.2d 349–50. Because this holding requires that we reverse and

remand for further proceedings in the trial court, we need not address Sibley’s first

three issues.




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                                  Conclusion

      We reverse the trial court’s final summary judgment and remand for further

proceedings.




                                            Michael Massengale
                                            Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.




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