DocketNumber: 03-93-00513-CV
Filed Date: 4/5/1995
Status: Precedential
Modified Date: 2/1/2016
PER CURIAM
Carroll argues in point of error three of her motion for rehearing that this Court erred in holding that the Homeowners proved that the developer of Panorama Ranch never consented to Carroll's predecessors' use of River Terrace. Carroll contends that she provided summary-judgment evidence, namely the subdivision restrictions for Panorama Ranch, that creates a fact issue on the developer's consent.
In her response to the Sniders' amended motions for summary judgment, Carroll incorporated her own previously filed motion for summary judgment and the exhibits attached to it. Included among these exhibits are the deed restrictions. Carroll, however, never expressly presented the fact issue allegedly raised by the deed restrictions in any response to the Homeowners' motions for summary judgment.
The same reason that barred the movants from incorporating by reference grounds stated in other movants' summary-judgment motions bars the nonmovant from incorporating by reference fact issues raised in her own previous summary-judgment motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340-41 (Tex. 1993). Carroll's response to the Homeowners' summary-judgment motions did not raise a fact issue by simply referring to the exhibits supporting her previous summary-judgment motion. McConnell, 858 S.W.2d at 341.
Further, even if Carroll had raised this fact issue before the trial court, she did not argue it in her brief on original submission. This Court will not consider an issue urged on rehearing that was not presented in Carroll's brief. Morrison v. Chan, 699 S.W.2d 205, 206-07 (Tex. 1985); Voskamp v. Arnoldy, 749 S.W.2d 113, 127 (Tex. App.--Houston [1st Dist.] 1987, writ denied). We also note that Carroll offers no argument on this, or any, point of error in her motion for rehearing. We overrule point three.
Having considered Carroll's remaining points of error, we overrule the motion for rehearing.
Before Justices Powers, Jones and B. A. Smith
Appellant's Motion for Rehearing Overruled
Filed: April 5, 1995
Do Not Publish
1. 1 Appellees are Mary N. Garrison; Homer Garrison, III; Richard J. Kocurek; Robert W. Blackbird; Cora A. Blackbird; M. M. Casey; Patsy Y. Casey; John W. Dalton; Harley D. Ford; Ruth A. Ford; Ernest N. Kaulbach; Zoreslava Kaulbach; E. M. Lawrence; Lanelle Lawrence; Nicholas B. Lorette; Panorama Ranch Development Company; Panorama Ranch Homeowner's Association; Bonnie Pierson; E. B. Pierson; Steven A. Pyhrr; Barbara S. Sieck; Robert N. Snider, Jr.; Lisa Famiglietti Snider; and Alex S. Tradd II.