Kelli Sartin v. Beacon Maritime, Inc. ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-08-00166-CV ____________________

KELLI SARTIN, Appellant

V.

BEACON MARITIME, INC., Appellee

---

On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No. 105300

---

MEMORANDUM OPINION

Appellant Kelli Sartin appeals from a summary judgment entered in favor of appellee Beacon Maritime, Inc. concerning her trespass claim. ⁽¹⁾ We reverse the trial court' s judgment as to the trespass claim because that claim was not addressed in the motion for summary judgment.

Background

Sartin filed suit against Beacon for alleged damages to a partially-built structure located on her real property in Sabine Pass. Sartin contended that during Hurricane Rita, her property was damaged when a trailer drifted onto her property. Williams Scotsman owned the trailer, and Beacon was leasing it from Williams Scotsman. In her original petition, Sartin asserted causes of action for negligence and gross negligence.

On June 15, 2007, Beacon filed a motion for summary judgment, in which Beacon asserted both traditional and no-evidence grounds for summary judgment. See Tex. R. Civ. P. 166a(c), (i). On July 9, 2007, Sartin filed a second amended petition, in which she alleged previously unasserted causes of action, including trespass related to efforts to remove the trailer. On July 13, 2007, Beacon filed a pleading entitled "Reply to Plaintiff's Joint Response to All Defendants' Traditional and No Evidence Motions for Summary Judgment[,]" in which Beacon addressed Sartin's newly-added trespass claim and requested summary judgment and dismissal of "all the claims alleged by Plaintiff against Defendant[.]" ⁽²⁾ Beacon attached additional summary judgment evidence to its reply.

According to the parties, the trial court conducted a hearing on Beacon's motion for summary judgment on July 16, 2007, and on July 19, 2007, the trial court entered an order granting Beacon's motion for summary judgment and dismissing Sartin's claims against Beacon with prejudice. Sartin then filed a motion for new trial as to her trespass claim. She argued that because Beacon did not seek leave of court to amend its motion for summary judgment to address the new theories of recovery Sartin asserted in her second amended petition, the trial court erred in granting summary judgment in favor of Beacon. Specifically, Sartin contended that Beacon improperly asserted additional grounds for summary judgment by means of a reply brief, and that she was not provided adequate notice under Rule 166a of the Texas Rules of Civil Procedure. The trial court denied Sartin's motion for new trial, and Sartin filed this appeal.

Sartin's Issue

In her sole appellate issue, Sartin contends that the trial court erred by dismissing "claims and causes of action that were submitted for summary judgment by a Defendant in a reply brief without twenty-one days['] notice to Plaintiff." Rule 166a(c) of the Texas Rules of Civil Procedure provides as follows, in part:

The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. . . . The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.

Tex. R. Civ. P. 166a(c). A summary judgment movant may file a supplemental motion for summary judgment less than twenty-one days before the hearing date "on leave of court, with notice to opposing counsel[.]" Id.; see also Mowbray v. Avery, 76 S.W.3d 663, 688 (Tex. App.--Corpus Christi 2002, pet. denied). The record must reflect that any material filed after the applicable deadline was filed with leave of court. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).

As support for her argument that the trial court erred, Sartin cites Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 25 (Tex. 1993); Elliott v. Methodist Hosp., 54 S.W.3d 789, 794 (Tex. App.--Houston [1st Dist.] 2001, pet. denied); Guest v. Cochran, 993 S.W.2d 397, 402 (Tex. App.--Houston [14th Dist.] 1999, no pet.); and Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.--Austin 1996, no pet.). In Stiles, the Supreme Court held that an appellate court may not consider grounds for summary judgment that were not raised in the trial court. Stiles, 867 S.W.2d at 26. Elliott involved an amended pleading filed by the non-movant after the filing of a motion for summary judgment. Elliott, 54 S.W.3d at 793. After noting that the movant was required to amend or supplement its motion for summary judgment to address the non-movant's newly-asserted causes of action, the court held that the reply brief "was not sufficient to rebut the claims added in the amended pleading." Id. at 793-94.

In Guest, the appellant contended that the appellee's motion for summary judgment was insufficient because the motion did not address the additional claims raised in appellant's second amended petition. Guest, 993 S.W.2d at 401. The appellee contended that his reply to Guest's response addressed the additional causes of action. Id. at 402. The Guest court noted that "[i]n holding that raising a new ground or cause of action in a reply brief is not sufficient to comply with Rule 166a(c), those other courts [of appeals] reasoned that a movant's reply is not a motion expressly presenting an independent cause of action or ground for summary judgment." Id. at 402-03 (citations omitted). The Guest court then concluded "that Cochran's attempt to address the claims appellant brought . . . in a reply to appellant's response, is insufficient to comport with the requirements of Rule 166a(c)." Id. at 403.

In Sanders, the appellant contended the trial court erred in granting summary judgment on a ground that was presented in a reply to Sanders's response rather than in a motion for summary judgment. Sanders, 930 S.W.2d at 910-11. In concluding that the trial court erroneously granted summary judgment on a ground raised for the first time in a movant's reply to the nonmovant's response, the Sanders court held that "[t]he purpose of the time requirements in [R]ule 166a(c), to give the nonmovant notice of all claims that may be summarily disposed of and the specific grounds on which the movant relies, would be severely undercut if a movant's 'reply' in which new independent grounds were presented could be treated as an amended motion for summary judgment." Id. at 911.

The Texas Supreme Court has held that a motion for summary judgment must "stand or fall on the grounds expressly presented in the motion." McConnell v. Southside I.S.D., 858 S.W.2d 337, 338, 341 (Tex. 1993) ("We conclude that grounds for summary judgment must be expressly presented in the summary judgment motion itself."). Summary judgment cannot be granted, or affirmed, on grounds not presented in the motion. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997); Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 805 (Tex. 1994); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993).

Defendant addressed the trespass cause of action only in a reply, not in a motion. A "reply is not a motion" for summary judgment. Guest, 993 S.W.2d at 403; Sanders, 930 S.W.2d at 911. A trial court cannot grant summary judgment on a cause of action addressed only in movant's reply brief, which in this case was filed the Friday afternoon before the Monday hearing. See generally Guest, 993 S.W.2d at 402-403; Sanders, 930 S.W.2d at 911. The Supreme Court has explained: "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." McConnell, 858 S.W.2d at 342. The trial court's summary judgment on the trespass claim is reversed, and the case is remanded for further proceedings consistent with this opinion. ⁽³⁾  

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.

____________________________

DAVID GAULTNEY

Justice

Submitted on February 2, 2009

Opinion Delivered April 23, 2009

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. After the trial court granted Beacon's motion for summary judgment, Sartin filed a "Motion for New Trial" as to her trespass claim only, and it is the denial of this motion for new trial that she references in her notice of appeal.

2. Sartin apparently filed a response to Beacon's motion for summary judgment; however, Sartin's response does not appear in the record before us.

3. We do not decide whether the trespass claim has merit; the error is in the procedure followed. Appellant does not attack the judgment on her other claims. We reverse the judgment only as to the trespass claim.