Failure to set forth affirmative defenses can’t be cured on appeal from improperly granted traditional summary judgment. Rather obvious point, but this opinion, released May 10, 2012, is still useful, as it provides a nice collection of caselaw cites that non-movants might want to invoke when faced with a woefully deficient motion for summary judgment -- with a view of avoiding an unnecessary appeal on a purely procedural issue. Better still if would-be movants who don't know what they are doing had a look at this opinion first.
EXCERPT FROM OPINION BY JUSTICE MASSENGALE
We review de novo the trial court’s ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides and determine all questions presented. Id. at 848; Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). In such a situation, we render the judgment the trial court should have rendered. Mann Frankfort Stein & Lipp Advisors, 289 S.W.3d at 848; Agan, 940 S.W.2d at 81.
The party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); see also Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
A defendant moving for summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When reviewing a summary judgment, a court of appeals should consider summary judgment grounds that the trial court rules on and the movant preserves for appellate review that are necessary to a final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996). In addition, in the interest of judicial economy, the appellate court may consider other grounds that the movant preserved for review and the trial court did not rule on. Id.
A motion for summary judgment must “state the specific grounds therefor.” Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341–42 (Tex. 1993) (“a motion for summary judgment must itself expressly present the grounds upon which it is made”); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). A motion for summary judgment must identify or address the cause of action or defense at issue and its elements. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). “[A] trial court cannot grant a summary judgment motion on grounds not presented in the motion.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see McConnell, 858 S.W.2d at 341. “In determining whether grounds are expressly presented, we may not rely on briefs or summary judgment evidence.” Sci. Spectrum, 941 S.W.2d at 912.
When a motion does not state any grounds for summary judgment, the non-movant should file exceptions in the trial court. McConnell, 858 S.W.2d at 342. Nevertheless, Rule of Civil Procedure 166a(c) requires the party moving for summary judgment to show that he is “entitled to judgment as a matter of law on the issues expressly set out in the motion.” Tex. R. Civ. P. 166a(c). Therefore, even if the non-movant did not except to the motion in the trial court, he may argue on appeal that the motion did not set forth sufficient grounds for summary judgment. McConnell, 858 S.W.2d at 342; Clear Creek Basin Authority, 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.”). When a motion states one or more grounds for summary judgment, summary judgment cannot be upheld based on a different ground. Sci Spectrum, 941 S.W.2d at 912.
In APPELLANT’s fourth, fifth, and sixth issues, APPELLANT contends that the trial court erred by granting summary judgment because the motion for summary judgment did not raise an affirmative defense or present any claims or arguments to defeat APPELLANT’s causes of action. The MOVANTS’ motion states that it “embraces their affirmative defenses as to all claims and issues raised by [APPELLANT].” It further states that “[t]here is no genuine issue as to any material fact necessary to establish each and every element of Defendants’ affirmative defenses and Defendants are entitled to judgment against [APPELLANT], as a matter of law.” Likewise, the final summary judgment order recites that “the Court finds that there is no genuine issue as to any material fact regarding Defendants’ affirmative defenses to the claims and allegations raised by [APPELLANT] and that Defendants are entitled to judgment in this cause, as a matter of law.”
“An affirmative defense is a matter asserted in avoidance of a party’s argument or position, rather than a matter asserted in denial of that party’s position.” Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied); see Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991) (“Pleading an affirmative defense permits introduction of evidence which does not tend to rebut the factual propositions asserted in the plaintiff's case, but which seeks to establish an independent reason why the plaintiff should not recover. . . . In short, an affirmative defense is one of avoidance, rather than a defense in denial.”). The MOVANTS did not plead any affirmative defense in their answers. Although an unpleaded affirmative defense may support a summary judgment when raised in the motion, see McConnell, 858 S.W.2d at 339, the MOVANTS’ motion for summary judgment did not identify any particular affirmative defense or any elements of an affirmative defense. See Roberts, 811 S.W.2d at 146 (“Grounds may be stated concisely . . . [b]ut they must at least be listed in the motion.”). We hold that the motion for summary judgment did not specifically state grounds of an affirmative defense that could support the trial court’s judgment. Tex. R. Civ. P. 166a(c); McConnell, 858 S.W.2d at 341–42. We sustain APPELLANT’s sixth issue.
Although the trial court expressly based its ruling on affirmative defenses, in the interest of judicial economy, we will consider all grounds for summary judgment that the MOVANTS properly presented to the trial court. See Cincinnati Life Ins., 927 S.W.2d at 625. Their motion for summary judgment stated that APPELLANT was suing to set aside a “(deed of trust) foreclosure sale,” that the MOVANTS sought entry of a take-nothing judgment against APPELLANT, that APPELLANT’s claims “are simply without merit,” that APPELLANT’s “claim that there is a defect in the chain of title is simply without merit, as can be seen by the attached Exhibits,” that “Defendants are guilty of no wrongdoing,” and that “there is no merit to any of Plaintiff’s claims and allegations.”
Aside from stating that APPELLANT was seeking to set aside a foreclosure sale, the motion does not identify any of APPELLANT’s alleged causes of action. It does not refer to any of the elements of any cause of action. See Black, 797 S.W.2d at 27. It does not explain how the lack of merit in APPELLANT’s contention of an earlier forgery in the chain of title relates to all of her alleged causes of action or why the court should render a take-nothing judgment if presented with conclusive proof that there is no defect in the chain of title. The recitation of facts and the history of the transaction begins with Julia’s parents’ purchase of the house in question and does not anywhere address the alleged earlier forgery. Although the MOVANTS’ appellate brief fills many of the gaps apparent in the motion for summary judgment, “summary judgments must stand on their own merits,” Clear Creek Basin Authority, 589 S.W.2d at 678, and we cannot uphold a summary judgment on the basis of “unstated” grounds. See Roberts, 811 S.W.2d at 144. Accordingly, we conclude that the MOVANTS’ motion was insufficiently specific as to the grounds upon which they sought summary judgment, and we hold that the trial court erred by granting summary judgment. See McConnell, 858 S.W.2d at 342; Siegert, 961 S.W.2d 349–50. Because this holding requires that we reverse and remand for further proceedings in the trial court, we need not address APPELLANT’s first three issues.
ConclusionWe reverse the trial court’s final summary judgment and remand for further proceedings.
SOURCE: HOUSTON COURT OF APPEALS – 01-11-00117-CV - 5/10/12 (Name of complaining party on appeal replaced with descriptive label “APPELLANT”, names of parties who filed defective motion in the 55th District Court below “MOVANTS”)