McConnell v. Southside Independent School District , 858 S.W.2d 337 ( 1993 )

OPINION

HIGHTOWER, Justice.

This case presents the question whether grounds for summary judgment must be expressly presented in the motion for summary judgment itself or whether such grounds may be presented in either a brief filed contemporaneously with the motion or in the summary judgment evidence. We conclude that grounds for summary judgment must be expressly presented in the summary judgment motion itself. Consequently, we reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.

John S. McConnell (McConnell) sued Southside Independent School District (Southside) after Southside failed to renew his contract of employment. Southside moved for summary judgment, stating in its motion only that there were “no genuine issues as to any material facts”.¹ South-side also filed a twelve page brief in support of the motion in which it expressly-presented the grounds allegedly establishing its entitlement to summary judgment. McConnell filed a written exception to the motion, arguing that the motion was defective in that it failed to present any grounds. The trial court overruled McConnell’s exception and rendered summary judgment for Southside. The court of appeals affirmed, holding that “Rule 166a allows a summary judgment movant to set out the specific grounds for summary judgment in a brief served on all parties contemporaneously with the motion itself.” 814 S.W.2d 247.

I.

McConnell argues that the specific grounds for summary judgment must be expressly presented in the motion for summary judgment itself and not in a brief filed contemporaneously with the motion or in the summary judgment evidence. We agree.

Motion For Summary Judgment

The first sentence of Rule 166a(e), added in 1971, plainly provides: “The motion for summary judgment shall state the specific grounds therefor.” Tex.R.Civ.P. 166a(c).² Several cases have paraphrased this requirement as follows:

The motion for summary judgment must itself state specific grounds on which judgment is sought.... The motion for summary judgment must stand or fall on the grounds it specifically and expressly sets forth.... There is authority to the effect that a summary judgment cannot be sustained on a ground not specifically set forth in the motion.

Westbrook Const. Co. v. Fidelity Bank of Dallas, 813 S.W.2d 752, 754-55 (Tex.App.-Fort Worth 1991, writ denied) (emphasis added). See, e.g., Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494-95 (Tex.1991) (“[A]n unpleaded affirmative defense may also serve as the basis for a summary judgment when it is raised in the summary judgment motion....”); 410/West Ave. Ltd. v. Texas Trust Savings Bank, F.S.B., 810 S.W.2d 422, 424 (Tex.App.-San Antonio 1991, no writ) (“Motions for summary judgment ‘stand or fall on the grounds specifically set forth in the motions.’ ”); Hall v. Harris County Water Control & Improvement Dist., 683 S.W.2d 863, 867 (Tex.App.-Houston [14th Dist.] 1984, no writ). Consequently, a literal reading of Rule 166a(c) and these authorities indicate that the motion itself must state the grounds.

Other cases have considered the same language of Rule 166a(c) when the motion for summary judgment presented no grounds. In Boney v. Harris, 557 S.W.2d 376 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ), the motion for summary judgment stated only that the defendant’s answer was “insufficient in law to constitute a defense_” Id. at 378. The court held that such a motion failed to satisfy the requirements of Rule 166a(e). Id. In another case in which the motion presented absolutely no grounds, the court held:

The motion, however, does not state any grounds, specific or otherwise, upon which it is based, and, as a result, it is not in compliance with Rule 166-A(c) as amended.

Moody v. Temple National Bank, 545 S.W.2d 289, 290 (Tex.Civ.App.-Austin 1977, no writ). See also Mallory v. Dorothy Prinzhorn Real Estate, Inc., 535 S.W.2d 371, 372 (Tex.Civ.App.-Eastland 1976, no writ) (motion stating that “original answer is insufficient to raise a controverted fact issue” insufficient under rule 166a(c)).³

Finally, there are cases, such as the one before the court today, in which summary judgment grounds were expressly presented, but only in a brief in support of the motion. In Shade v. City of Dallas, 819 S.W.2d 578 (Tex.App.-Dallas 1991, no writ), the court held:

Although it raised these other grounds in a brief in support of the motion, we hold that this is not sufficient. A brief in support is not a motion, answer, or response as contemplated by rule 166a. The City’s motion does not incorporate the brief, and the trial court’s judgment does not state that the brief was considered. The right to summary judgment exists only where there is compliance with the rule.... Because those grounds were not contained in the City’s motion, we hold that summary judgment was improper if granted on those grounds.

Id. at 583 (emphasis added). Additionally, in Watkins v. Hammerman & Gainer, 814 S.W.2d 867 (Tex.App.-Austin 1991, no writ), the court held:

H & G argued in its trial and appellate briefs that additional grounds entitled it to summary judgment, but failed to raise the other grounds in its motion for summary judgment. The judgment must stand or fall on the grounds expressly alleged in the motion.

Id. at 869 n. 1 (emphasis added). The same result was reached in Roberts v. Southwest Texas Methodist Hospital, 811 S.W.2d 141 (Tex.App.-San Antonio 1991, writ denied). In Roberts, the movant identified two grounds in his motion and discussed two additional grounds in his brief. The court of appeals, holding that the grounds discussed in the brief could not provide the basis for summary judgment, stated:

It did make these arguments later in a brief, but its motion said only that limitations barred the suit and that hospitals have no duty to give informed consent. Apart from limitations, the motion simply did not address the cause of action for battery. The trial court could not have granted summary judgment on grounds that were not included in the motion, and likewise, we cannot uphold it on unstated grounds.

Id. at 145. On motion for rehearing, the court added:

There is nothing onerous or unreasonable about requiring the movant to state the grounds upon which he seeks to win a lawsuit without a trial. If the grounds are so obvious from the summary judgment proof, what is burdensome about requiring the movant to state them in the motion? Grounds may be stated concisely, without detail and argument. But they must at least be listed in the motion.

Id. at 146. If this court intended Rule 166a(c) to permit a summary judgment movant to place, or possibly hide, grounds for summary judgment in a brief filed in support of the motion or in accompanying summary judgment evidence, the Rule could have easily provided: “The motion for summary judgment or the brief in support thereof or the summary judgment evidence shall state the specific grounds therefor.” Rule 166a(c), however, does not so provide. “[W]e are not free to disregard ... [the rule’s] plain language. Nor should we revise the rule by opinion.” Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 915 (Tex.1992).⁴ Although Rule 166a(c) is an admittedly rigorous rule, it must be applied as written.

Consistent with the precise language of Rule 166a(e), we hold that a motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion. In determining whether grounds are expressly presented, reliance may not be placed on briefs or summary judgment evidence..

Non-Movant’s Answer or Response

Likewise, issues a non-movant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) (“the non-movant must expressly present to the trial court any reasons seeking to avoid movant’s entitlement ... ”).

The summary judgment pleading rules we announce today are consistent with the express language of Rule 166a(c) requiring that the motion for summary judgment state the specific grounds therefor and further the purpose of Rule 166a(c) to provide adequate information for opposing the motion, and to define the issues. See Weaver v. Stewart, 825 S.W.2d 183, 184-85 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (“[Rule 166a(c) ] is important because it provides the opposing party with notice of all matters expected to be asserted in arguing the motion.”). Carving exceptions to this simple requirement that the motion for summary judgment state the specific grounds frustrates the purpose of Rule 166a(c). Eventually the exceptions would consume the rule, and inject uncertainty into summary judgment proceedings concerning what issues were presented for consideration. Furthermore, it- Is certainly not unduly burdensome to require the mov-ant to state the specific grounds in the motion for summary judgment. These rules also permit the trial court to consider a brief in support of a motion for summary judgment as guidance in making its determination whether the summary judgment evidence demonstrates that the moving party is “entitled to judgment”, see Tex. R.Civ.P. 166a(c), but not in determining whether summary judgment grounds and issues are expressly presented. Finally, these rules further the policy of seeking clarity and simplicity in summary judgment practice. See, e.g., Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990) (“[T]he motion [for summary judgment] must identify or address the cause of action or defense and its elements.” (emphasis added)).

II.

A corollary question concerns whether a burden exists to except or object to a defective motion for summary judgment or response. In certain situations, we conclude that such a burden exists.

Motion Presenting No Grounds

When the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, any confusion may and should be resolved by exception in the trial court. However, summary judgments must stand or fall on their own merits, and the non-movant’s failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant’s right — the mov-ant’s right is not established and the mov-ant must still assert grounds in the motion for summary judgment itself and establish its entitlement to summary judgment. See Clear Creek, 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.

Id. (emphasis in original). Even if the non-movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law. Consequently, we conclude that Rule 166a(c) does not require a non-movant to except in this situation.⁵

Motion Presenting Only Certain Grounds

When the motion for summary judgment clearly presents certain grounds but not others, a non-movant is not required to except. This distinction was recognized and correctly resolved in Roberts v. Southwest Texas Methodist Hospital, when the court held:

When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.

811 S.W.2d at 146. Why should a non-movant be required to except to a motion expressly presenting certain grounds and not others? The only effect of such a rule would be to alert the movant to additional unasserted grounds for summary judgment. Consequently, we conclude that Rule 166a(c) does not require a non-movant to except in this situation.

Grounds Unclear from Motion

An exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous. See Lochabay v. Southwestern Bell Media, Inc., 828 S.W.2d 167, 170 n. 2 (Tex.App.-Austin 1992, no writ) (“Lochabay did not except to the motion for summary judgment, as he was required to do if he wished to claim lack of specificity.”). Prudent trial practice dictates that such an exception should be lodged to ensure that the parties, as well as the trial court, are focused on the same grounds.⁶ This prevents the non-movant from having to argue on appeal each and every ground vaguely referred to in the motion. The practical effect of failure to except is that the non-movant loses his right to have the grounds for summary judgment narrowly focused, thereby running the risk of having an appellate court determine the grounds it believes were expressly presented in the summary judgment. Even in this situation, however, “[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].” Clark v. First National Bank of Highlands, 794 S.W.2d 953, 956 (Tex.App.-Houston [1st Dist.] 1990, no writ) (quoting Great-Ness Professional Serv., Inc. v. First Nat’l Bank of Louisville, 704 S.W.2d 916, 918 (Tex.App.-Houston [14th Dist.] 1986, no writ)).

Non-Movant’s Answer or Response

With one exception, the above rules apply equally to a non-movant’s response. The non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant’s entitlement. Clear Creek, 589 S.W.2d at 678 (“The written answer or response to the motion must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion.”). If it is clear what issues the non-movant contends should defeat the mov-ant’s entitlement, the movant should be able to reply only to these issues. See Tex.R.Civ.P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). Any confusion regarding what issues are expressly presented by the non-movant can also be resolved by exception.⁷ However, summary judgments must stand or fall on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the mov-ant’s right. Clear Creek, 589 S.W.2d at 678. If a non-movant fails to present any issues in its response or answer, the mov-ant’s right is not established and the mov-ant must still establish its entitlement to summary judgment. The effect of such a failure is that the non-movant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant. Id. at 678.

III.

The summary judgment pleading rules we announce today are simple, equitable, and prevent the confusion that results when parties fail to expressly present grounds and issues entitling or defeating entitlement to summary judgment.⁸ They also prevent parties from arguing that grounds and issues were presented in lengthy briefs or voluminous summary judgment evidence. Finally, these rules ultimately prevent the controversies that result when appellate courts are forced to ascertain whether grounds and issues were expressly presented to the trial court.

Because Southside’s motion for summary judgment stated no grounds and because McConnell properly excepted to this defect, the court of appeals erred in affirming the trial court's rendition of summary judgment for Southside. For these reasons, we reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.

GONZALEZ, J., concurring. HECHT, J., joined by CORNYN, J., dissenting. ENOCH, J., joined by PHILLIPS, C.J., dissenting.

1 . Southside’s motion for summary judgment, in its entirety, stated:

Defendants, SOUTHSIDE ..., in accordance with Rule 166a of the Texas Rules of Civil Procedure, move this Court for summary judgment in the above entitled action on the grounds that there are no genuine issues as to any material facts and that these Defendants are entitled to a judgment dismissing Plaintiffs amended complaint as a matter of law. The Defendants respectfully request this Court to enter a summary judgment based on the pleadings in file, this Brief in Support [sic], containing the undisputed facts and conclusions of law as required by the Local Rules, and transcripts, together with affidavits submitted along with this motion, or in the alternative to specify what, if any, facts remain to be determined:

2 . Consistent with Rule 166a, we use the term "grounds” to refer to the reasons entitling the movant to summary judgment. Likewise, we use the term “issues” to refer to the reasons the non-movant contends defeat the movant’s entitlement to summary judgment.

3 . Ignoring the plain language of Rule 166a(c), some courts of appeals have reached the opposite result. In City of Asherton v. Trigo, 714 S.W.2d 90 (Tex.App.-San Antonio 1986, no writ), the motion stated only that "[t]he pleadings and affidavits on file in this cause show that there is no genuine issue of material fact and that Counter-Defendant is entitled to judgment on the Counterclaim as a matter of law.” Id. at 92. Holding that the movant sufficiently presented the grounds to the trial court, the court stated that "[i]ssues may be expressly presented by considering all of the summary judgment evidence presented in the case.” Id. Furthermore, in Bado Equipment Co. v. Ryder Truck Lines Inc., 612 S.W.2d 81 (Tex.Civ.App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.), the court held that a motion stating only that the answer filed was "insufficient in law to constitute a defense ...” "was sufficiently specific under rule 166a(c).” Id. at 82. See also Sparks v. Cameron Emp. Credit Union, 678 S.W.2d 600, 602 (Tex.App.-Houston [14th Dist.] 1984, no writ) (construing summary judgment motion stating no grounds, court holds that "the specific issues were readily apparent from this [summary judgment] evidence...”); Albritton v. Henry S. Miller Co., 608 S.W.2d 693, 695 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.) (“It is clear, therefore, that issues are 'expressly presented’ by all of the summary judgment evidence presented to and considered by the court."). To the extent that they conflict with our opinion today, we disapprove City of Asherton v. Trigo, Bado Equipment Co. v. Ryder Truck Lines Inc., Sparks v. Cameron Emp. Credit Union and Albritton v. Henry S. Miller Co.

4 . In arguing that the grounds for summary judgment may be specified "in documents accompanying or referenced in the motion ...” the dissent consistently relies upon the "basic principle it [Rule 166a(c) ] is meant to effectuate" and its "underlying purpose." 858 S.W.2d 344, 347 (Hecht, J., dissenting). The dissent further states:

A rule [of procedure] that does not simply restate the basic principle on which it is based, but instead prescribes a guideline which tends to further that principle, must be applied consistent with its principle. * * * The words of the rule [Rule 166a] are defined by its purpose.

******

All such rules [of procedure] can be applied under the rubric of literal construction to defeat their own purposes unless those purposes govern and define the rules. The underlying principles must control.

858 S.W.2d 344, 347 (Hecht, J., dissenting). The Texas Rules of Civil Procedure including Rule 166a(c) should be clearly understandable and be applied in a predictable and consistent manner. In an attempt to avoid the effect of Rule 166a(c), the dissent would do a great disservice to the litigants whom we serve by rewriting the unambiguous text of Rule 166a(c) in light of the dissent's perceptions concerning Rule 166a(c)’s "underlying purpose and principles.” This approach would inject an element of uncertainty into every rule, no matter how clearly stated.

5 . The dissent suggests that we have overruled Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771 (Tex.1978) when we allegedly state "that if the motion states no grounds at all, no exception is required." 858 S.W.2d 344, 348 (Hecht, J., dissenting). The statement in Westchester, 576 S.W.2d at 773, “that the failure of a motion for summary judgment to specify grounds is a defect of form that is waived unless excepted to prior to rendition of judgment,” was effectively overruled fourteen years ago by Clear Creek, 589 S.W.2d at 678 (“the non-movant needs no 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.”).

6 . When the non-movant files a proper exception to the motion stating that the movant's grounds are uncertain or ambiguous, and such an exception is overruled, the non-movant may have a valid complaint on appeal. See Jones v. McSpedden, 560 S.W.2d 177, 179 (Tex.Civ.App.-Dallas 1977, no writ).

7 . Concerning the form and time of exceptions, Clear Creek held that both the grounds for summary judgment and the issues defeating entitlement thereto must be in writing and before the trial court at the hearing. Id. at 677. We stated that to permit grounds and issues to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice neither necessary nor appropriate to the purposes of such a hearing. Id. This rationale compels the conclusion that exceptions to a motion or response must also be in writing. Furthermore, the requirement that a written response must be filed and served not later than seven days prior to the hearing applies equally to the non-movant’s exceptions. See Tex.R.Civ.P. 166a(c). Similarly, any exceptions filed by the movant to the non-movant’s response must be filed and served not less than three days prior to the hearing. See Tex. R.Civ.P. 21. Finally, a party asserting exceptions must obtain a ruling at or prior to the hearing of the motion for summary judgment. Tex.R.App.P. 52(a).

8 .We do not believe that our holding presents a trap for the unwary practitioner. For example, the Texas Litigation Guide provides a standard motion for summary judgment form consistent with our holding today. See W. Dorsaneo, 4 Texas Litigation Guide § 101.101[2] (1992). Additionally, in an effort to avoid any resulting confusion, we point out that the oft-cited commentators on Texas summary judgment practice have recently changed positions on this issue in response to the incorrect opinion of the court of appeals in this case. Compare L. Liberato & D. Hittner, Summary Judgments in State and Federal Courts, in 1 State Bar of Texas, Fourth Annual Advanced Appellate Practice Course G-2 (1990) ("Rule 166a(c) unequivocally requires that the motion shall state with specificity the grounds upon which the movant is relying.”) with D. Hittner, L. Liberato, B. Ramage, Summary Judgments and Defaults in the State Courts of Texas, 1:13.1 (1992) (“The movant may set out the specific grounds for a summary judgment in a brief served on all parties contemporaneously with the motion itself.”). As our opinion indicates, the rule expressed in 1990 is correct.