Jerry Coyel v. City of Kennedale, Texas, and Zoning Board of Adjustment of the City of Kennedale, Texas ( 2004 )

Jerry Coyel v. City of Kennedale, Texas, and Zoning Board of Adjustment of the City of Kennedale, Texas

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-03-161-CV

JERRY COYEL APPELLANT

V.

CITY OF KENNEDALE, TEXAS, APPELLEE

AND ZONING BOARD OF

ADJUSTMENT OF THE CITY OF

KENNEDALE, TEXAS

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FROM THE 236 TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Appellant Jerry Coyel appeals the trial court’s summary judgment disposing of his entire case.  In his sole point, Appellant argues that the trial court erred by granting the motion for summary judgment of Appellees City of Kennedale, Texas, and the Zoning Board of Adjustment of the City of Kennedale, Texas because the motion did not raise a ground for summary judgment on his due process claim.  Appellees concede that the motion for summary judgment did not address Appellant’s due process cause of action.

It is axiomatic that one may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. ^{(footnote: 2)}  A defendant’s motion for summary judgment stands and falls on the grounds upon which it is made. ^{(footnote: 3)}  In other words, summary judgment cannot be granted except on the grounds expressly presented in the motion. ^{(footnote: 4)}  As the parties in this case agree, the motion for summary judgment did not address Appellant’s due process violation cause of action.  Consequently, in ordering summary judgment on a cause of action not addressed in a summary judgment motion, the trial court erred.

We reverse the portion of the trial court’s judgment that denies Appellant’s due process claim and remand for trial solely on that claim.  We affirm the remainder of the trial court’s judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL B: DAUPHINOT and HOLMAN, JJ.; and SAM J. DAY, J. (Retired, Sitting by Assignment).

DELIVERED:  January 15, 2004

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

Maher v. Herrman , 69 S.W.3d 332, 337 (Tex. App.—Fort Worth 2002, pet. denied).

3:

Id .

4:

Id .