Opinion issued June 10, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00714-CV

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LINDA COOK, INDIVIDUALLY AND AS NEXT FRIEND AND LEGAL REPRESENTATIVE OF KAYLON MARY LAUREN COOK, DECEASED, AND ON BEHALF OF THE ESTATE OF KAYLON MARY LAUREN COOK, DECEASED, Appellant

V.

LINTON COOK; WILLIAM L. COOK, JR., DECEASED; WILLIAM L. COOK, JR. ESTATE, DUANE D. HOFF, EXECUTOR; WILLIAM L. COOK, JR. TRUST; DUANE D. HOFF, TRUSTEE OF THE WILLIAM L. COOK, JR. TRUST; STEVEN M. VANASSE, TRUSTEE OF THE WILLIAM L. COOK, JR. TRUST; MERRIWAY CONSTRUCTION, INC.; AND MERRIWAY INVESTMENTS, L.L.C., Appellees

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Case No. 2006-58622

MEMORANDUM OPINION

          This appeal involves claims arising from the death of Kaylon Mary Lauren Cook, the teenage daughter of Linda and Linton Cook.  Acting individually, as next friend and legal representative of Kaylon, and on behalf of Kaylon’s estate, Linda filed this wrongful-death and survival suit against Linton and numerous other defendants.

The trial court rendered summary judgment in favor of all the defendants, including Linton.  On appeal, Linda contends that the trial court erred in rendering summary judgment for Linton and in granting more relief than was requested in the remaining appellees’ motions for summary judgment.  We reverse the summary judgments of the trial court and remand for further proceedings.

Procedural Background

          Kaylon died of a drug overdose while living with Linton.  Linda sued Linton, asserting wrongful-death and survival claims.  Linda alleged that Linton is addicted to hydrocodone and other prescription drugs, and that he allowed Kaylon to ingest hydrocodone and alprazolam in sufficient quantities to cause her death.

Linda also sued numerous other defendants.  She sued Linton’s father, William L. Cook, Jr., who died while this case was pending in the trial court.  She sued the William L. Cook, Jr. Trust and two of its trustees, Duane D. Hoff and Steven M. Vanasse.  She sued two companies formed by William, named Merriway Construction, Inc. and Merriway Investments, L.L.C.  And after William died, Linda joined as defendants his estate and Hoff in his capacity as executor of the estate.  Generally speaking, Linda originally joined these parties based upon her claim that they manipulated her income and assets “so as to prevent her from having the financial ability to care for her children.”  Linda claims that this required Kaylon to live with her father.

          Linton and Merriway Investments, L.L.C. filed a combined traditional and no-evidence motion for summary judgment.  The remaining defendants also filed a similar combined traditional and no-evidence motion for summary judgment.  Neither motion formally distinguished which grounds for summary judgment were based on the traditional or no‑evidence standard.

Linda filed an amended petition after the summary‑judgment motions had been filed.  The amended petition, which was Linda’s live pleading at the time the trial court ruled on the summary judgment motions, identified the following claims:

1.     Wrongful-death claim against Linton (Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002‑.012 (Vernon 2008));

2.     Survival claim against Linton (Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 2008));

3.     “Cause of Action for Participatory Liability” against all defendants, including Linton, for “aiding and abetting by assisting or encouraging and for aiding and abetting by assisting and participating”;

4.     “Cause of Action to Pierce the Corporate Veil” against the William L. Cook, Jr. Trust, Merriway Construction, Inc., and Merriway Investments, L.L.C.; and

5.     “Request for Ancillary Relief Including the Appointment of a Receiver and for Injunctive Relief” against all defendants.

The trial court granted both motions for summary judgment in separate orders.  Each of the two orders rendered a final summary judgment on all of Linda’s causes of action and denied all other relief in the case.

Analysis

I. Summary judgment in favor of Linton

          In her first issue, Linda claims the trial court erred in rendering a summary judgment on her claims against Linton.  Linton’s motion recited the traditional and no-evidence standards for granting summary judgment.  Tex. R. Civ. P. 166a(c), (i).  Both standards require specificity from the movant as to the proposed grounds for summary judgment.  In a traditional motion, the movant is required to “expressly set out” those issues as to which the movant is entitled to judgment as a matter of law because of the absence of any genuine issue of material fact.  Tex. R. Civ. P. 166a(c).  A no-evidence motion must “state the elements as to which there is no evidence.”  Tex. R. Civ. P. 166a(i); see also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (“The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” (quoting Tex. R. Civ. P. 166a(i) cmt.-1997)).  On appeal, Linda addresses only the negligence-based wrongful-death and survival causes of action against Linton.  We therefore consider those causes of action and the corresponding arguments contained in Linton’s summary-judgment motion.

          Linton’s motion for summary judgment did not distinguish between traditional and no-evidence grounds.  Nor did it distinguish between Linda’s various causes of action.  In three and one-half pages of argument and authorities, it presented no cohesive argument for summary judgment on any particular claim based on any particular theory.

          Linton presented no summary-judgment arguments concerning Linda’s wrongful‑death and survival claims that were based on the traditional summary‑judgment standard, i.e., Linton presented no evidence in an effort to show “there is no genuine issue as to any material fact” as to those causes of action. Instead, Linton’s motion merely presented a litany of assertions for which there allegedly is “no evidence.”  Linton contends:

There is no evidence that Linton . . . gave Alprazolam and/or Hydrocodone to Kaylon at any time. There is no evidence of when Kaylon took these drugs or the source from which she obtained these drugs.  There is no evidence that Linton . . . allowed Kaylon access to these drugs or allowed her to ingest them, as there is no evidence that either had knowledge that she had access to these drugs or ingested them around the time of the respiratory distress event which ultimately led to her death.  Movants ask that the Court grant summary judgment on these allegations on the basis that there has been no evidence presented to support them.

A no-evidence summary judgment can be granted as to a “claim or defense,” but there is no authority in Rule 166a(i) to grant a no-evidence summary judgment as to a factual allegation.  Linton offered no argument that the absence of evidence as to these allegations constituted an absence of evidence as to “one or more essential elements of a claim or defense” on which Linda would have the burden of proof at trial.  Tex. R. Civ. P. 166a(i).  Linda’s primary substantive causes of action are her wrongful-death and survival claims.  Both of those claims are premised on allegations that Linton breached parental duties of care by specifically alleged negligent acts or omissions, as detailed in her amended petition:

1.       providing Kaylon Mary Lauren Cook, either directly or indirectly, with hydrocodone and alprazolam drugs;

2.       allowing Kaylon Mary Lauren Cook to ingest opiates in his home and while under his care and supervision, proximately causing her death;

3.       failing to monitor Kaylon’s use of hydrocodone and alprazolam drugs prescribed by physicians;

4.       failing to notify Linda Cook of the health condition of Kaylon Mary Lauren Cook;

5.       failing to obey court orders and in so doing rendering Linda Cook unable to intervene to protect Kaylon Mary Lauren Cook from the injuries she sustained as a result of Defendant Linton Cook’s acts and omissions;

6.       refusing to allow Linda Cook to talk to Kaylon Mary Lauren Cook over the telephone on the night she became ill from the ingestion of hydrocodone and alprazolam drugs on September 11, 2004;

7.       failing to properly inform the EMS of the cause of Kaylon Mary Lauren Cook’s illness;

8.       failing to monitor Kaylon Mary Lauren Cook’s health condition during the night of September 11, 2004;

9.       failing to render proper care to Kaylon Mary Lauren Cook;

10.     failing to care, control, protect, and support Kaylon Mary Lauren Cook; and

11.     by taking or retaining possession or concealing the whereabouts of Kaylon Mary Lauren Cook in violation of the possessory rights of Linda Cook, in violation of Section 42.002 of the Texas Family Code.

See Tex. Civ. Prac. & Rem. Code Ann. § 71.002(b) (Vernon 2008) (wrongful-death cause of action: “A person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s . . . wrongful act, neglect, carelessness, unskillfulness, or default.”); Tex. Civ. Prac. & Rem. Code Ann. § 71.021(b) (Vernon 2008) (survival cause of action: “A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.”).

Linton’s no-evidence assertions do not negate all of Linda’s allegations of negligent acts or omissions.  For example, Linton’s motion does not allege a lack of evidence that he failed to monitor Kaylon’s use of prescription drugs, failed to monitor Kaylon’s condition during the night of her overdose, failed to render proper care to Kaylon, and failed to properly inform paramedics of the cause of Kaylon’s illness.  To the extent Linton’s motion does not claim a lack of evidence as to these allegations, he also makes no legal argument that he could not be held liable based upon the unaddressed allegations of negligent acts or omissions.  For these reasons, Linton’s motion for summary judgment should not have been granted.

Without expressing an opinion on the ultimate merits of Linda’s wrongful‑death and survival causes of action, on this record we hold that the trial court erred in granting a summary judgment for Linda’s wrongful-death and survival claims against Linton.  Accordingly, we sustain issue one.

II. Summary judgment in favor of remaining appellees

          In her second issue, Linda does not contest the summary judgment the trial court rendered against her original claim that the remaining appellees “set in motion the series of events that led to Kaylon’s death by evicting the Appellant and Kaylon from a home and manipulating the Appellant’s finances so that she was eventually forced to concede primary custody of Kaylon to Linton.” Linda does, however, argue that the trial court erred in rendering a final summary judgment against the remaining appellees because she raised a new claim for relief in her amended petition.  After the motions for summary judgment were filed, Linda amended her petition and alleged that certain property “subject to satisfaction of a judgment in this case” is controlled by the appellees and “in danger of being removed or materially injured and/or transformed or converted.”  Linda requested the appointment of a receiver and temporary and permanent injunctive relief.

Appellees respond by characterizing Linda’s request for equitable relief as merely “a new theory of recovery” and stating that the summary judgment should be affirmed because limitations would have barred any new claims. Whatever merit appellees’ legal arguments may have, they were not presented to the trial court.  “[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.”  McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).  Accordingly we hold that to the extent the final summary judgments denied Linda’s request for appointment of a receiver, those orders improperly granted more relief than was requested.  We sustain issue two.

Conclusion

          We reverse the trial court’s final summary judgments to the extent they dismiss the wrongful-death and survival claims against Linton and to the extent they deny Linda’s request for appointment of a receiver.  The case shall be remanded to the trial court for further proceedings.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.