                                    NO. 07-01-0436-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                       JULY 25, 2002

                           ______________________________


                                TOM SNIDER, APPELLANT

                                              V.

                  PARKINSON ELECTRONICS COMPANY, APPELLEE


                         _________________________________

             FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                NO. 01-07-18,465; HONORABLE ANDY KUPPER, JUDGE

                          _______________________________


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


       By this appeal, Tom Snider challenges the trial court’s order granting summary

judgment that he take nothing in his action against Parkinson Electronics Company for

declaratory judgment and seeking damages for wrongful impairment of his credit rating. By

two issues, Snider contends (1) the trial court erred in granting summary judgment, and (2)

the trial court erred in awarding attorney’s fees. Based on the following rationale, we reverse
and remand. Because Parkinson does not contradict Snider’s statement of facts, we will

accept Snider’s fact statement as true. T EX. R. A PP. P. 38.2(a)(1)(B).


       On June 29, 2000, Parkinson sued Snider on a sworn account in the Small Claims

Court of Hockley County, Texas. Although citation was directed to Snider, citation was

served on Snider’s father, Lee Snider, on July 6, 2000. After Snider’s father was served,

Parkinson’s counsel submitted a motion for substituted service and the Small Claims Court

authorized substituted service by order signed July 10, 2000. On July 17, 2000, without the

issuance and service of a new citation, the Small Claims Court signed a default judgment

that Parkinson recover damages against Snider. W hen he learned of the judgment almost

a year later, in May 2001, Snider filed this suit seeking both to void the judgment and enjoin

its enforcement, as well as damages for wrongful impairment of his credit rating. Following

its answer to Snider’s petition, Parkinson filed a traditional motion for sum mary judgment.

After hearing the motion for summary judgment, the trial court rendered judgment that Snider

take nothing and that Parkinson recover $1,500 in attorney’s fees. Before we consider

appellant‘s issues, we first set out the appropriate standard of review.


                                 STANDARD OF REVIEW


       In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), which are:


       1. The movant for summary judgment has 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.

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       2. In deciding whether there is a disputed material fact issue precluding
       summ ary 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 material fact and that he is entitled to

judgment as a matter of law. T EX. R. C IV. P. 166a(c). A movant must either prove all

essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W .2d 59, 60 (Tex. 1986), or

negate at least one essential 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 summary judgment, the non-movant has the burden to respond to the

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

summ ary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W .2d 671, 678 (Tex.

1979); Barbouti v. Hearst Corp., 927 S.W .2d 37, 64 (Tex.App.–Houston [1st Dist.] 1996, writ

denied). Issues which the non-movant contends preclude the granting of a summary

judgment must be expressly presented to the trial court by written answer or other written

response to the motion and not by mere reference to summary judgment evidence.

McConnell v. Southside Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly

presented to the trial court in writing shall not be considered on appeal as grounds for

reversal. TEX. R. C IV. P. 166a(c). Further, all theories in support of or in opposition to a

motion for summ ary judgment must be presented in writing to the trial court. Casso v. Brand,

776 S.W.2d 551, 553 (Tex. 1989). W here, as here, the summary judgment does not specify

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or state the grounds relied on, the summary judgment 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).


       By his first issue, Snider contends the trial court erred in granting summ ary judgment

because of defective service of citation in the judgment of the underlying suit. Presenting

sub-issues (a) through (d) he argues that service of citation was defective in the underlying

suit because (a) the evidence did not show compliance with TEX. R. C IV. P. 536(c), as a

matter of law; (b) the evidence established that the judgment taken in Sm all Claims Court

was void as a matter of law; (c) the summ ary judgment evidence established a defective

citation apparent on the face of the record; and (d) the citation in Small Claims Court was

defective for failure to comply with TEX. R. C IV. P. 534(b)(9) and(12) and Rule 534(c). By

sub-issue (a), Snider contends the trial court erred in granting summary judgment in favor

of Parkinson because the evidence does not establish as a matter of law that they complied

with T EX. R. C IV. P. 536(c) in obtaining substituted service of citation on him. We agree.


       Although TEX. R. C IV. P. 166a(c) requires that a motion for summ ary judgment shall

“state the specific grounds therefor,” as discussed in McConnell, 858 S.W.2d at 342, the

grounds upon which Parkinson relies for the motion are instead nonspecific. Although

unclear, it appears that Parkinson’s motion was grounded on its contention that




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       Therefore, there is no genuine issue of fact that Defendant in this cause
       properly perfected service on Tom Snider in Cause No. SC0548 in the Justice
       Court according to the Texas Rules of Civil Procedure.


Parkinson’s motion for substituted service in Small Claims Court alleged that attempted

personal service was unsuccessful and requested substituted service under TEX. R. C IV. P.

106(b). However, Rule 106(b) applies to suits in District and County Courts, not Justice

Courts. By his response to the motion, although Snider acknowledged TEX. R. C IV. P. 536(c)

authorizes substituted service of citation in Justice Court, Parkinson did not amend its motion

for summary judgment to assert service under Rule 106(b) was effective. Further, although

Rule 536(c) authorizes substituted service where service under TEX. R. C IV. P. 536(a)(1) or

(a)(2) has been attempted without success, it provides the court may authorize service


       (1) by leaving a true copy of the citation, with a copy of the petition attached,
       with anyone over sixteen years of age at the location specified in such
       affidavit, or


       (2) in any other manner that the affidavit or other evidence before the court
       shows will be reasonably effective to give the defendant notice of the suit.


This rule contemplates where ordinary personal service has been attempted without

success, substituted service may be authorized. However, neither does the rule authorize

substituted service before an order has been signed authorizing substituted service, nor has

Parkinson cited any cases holding such. Accordingly, Parkinson did not establish that it was

entitled to summary judgment as a matter of law on the grounds asserted in its motion. City

of Houston, 589 S.W.2d at 678.


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       Moreover, in its brief, Parkinson does not respond to Snider’s argument that service

under TEX. R. C IV. P. 536(c) was not effective. Instead, Parkinson focuses its response on

the contention that Snider’s attack on the judgment of the Small Claims Court fails because

it was a collateral attack. However, the contention the attack was collateral was not

mentioned as a ground in Parkinson’s motion for summ ary judgment. Because Parkinson’s

collateral attack theory was not presented to the trial court in writing, it cannot be considered

as supporting summary judgment. City of Houston, 589 S.W.2d at 679.


       W ithout expressing any opinion about Parkinson’s collateral attack defense presented

on appeal, Snider’s sub-issue (a) of issue one is sustained.           Our sustention of     this

contention pretermits consideration of his remaining issues. T EX. R. A PP. P. 47.1.


       Accordingly, the judgment of the trial court is reversed and the cause is remanded

for further proceedings.


                                            Don H. Reavis
                                              Justice

Do not publish.




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