John Frank McKnight v. Marshall Davis Brown, Jr. ( 2007 )

Opinion issued January 11, 2007

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-05-00689-CV

____________

JOHN FRANK MCKNIGHT, Appellant

V.

MARSHALL DAVIS BROWN, JR., Appellee

---

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2003-43149

---

SUPPLEMENTAL MEMORANDUM OPINION

Appellant, John Frank McKnight, has filed an unopposed motion to dismiss this appeal with prejudice, informing us that the parties "have reached a resolution and settlement of all matters in controversy between them." McKnight also requests that "all matters" pending in the trial court be dismissed. This Court had previously issued an opinion and judgment affirming the trial court's judgment on April 13, 2006. McKnight does not request that our earlier opinion be withdrawn. ⁽¹⁾

Accordingly, the unopposed motion to dismiss is granted, our judgment of April 13, 2006 is vacated, the trial court's judgment is vacated, and the case (including this appeal) is dismissed with prejudice. See Tex. R. App. P. 42.1(a)(1), 43.2(e).

All other pending motions in this appeal, including appellant's motion for rehearing, are dismissed as moot. The Clerk is directed to issue mandate within 10 days of the date of this opinion. See Tex. R. App. P. 18.1.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Higley, and Bland.

Justice Bland, concurring.

1. The concurring opinion contends that our original opinion should be withdrawn because we did not take into consideration the following when determining whether McKnight offered sufficient evidence of damages for his abuse of process claim: (1) McKnight's "supporting summary judgment affidavit . . . recites the fact of his incarceration," (2) Brown "concede[d]" in his summary judgment motion "that McKnight was incarcerated for contempt of court," and (3) "in granting McKnight's request for a writ of habeas corpus, our sister court noted the fact of [McKnight's] incarceration." The concurring opinion overlooks that "the fact of [McKnight's] incarceration" was not argued by McKnight in the trial court or in his opening appellate brief as a basis for defeating Brown's no-evidence motion for summary judgment on the damages element. That is, though his incarceration was mentioned, McKnight never pointed to it as evidence of his damages for his abuse of process claim. It is a basic principle of summary judgment practice that an appellate court cannot consider arguments not expressly presented to the trial court by written motion, answer, or other response as a ground for reversal of a summary judgment. See Tex. R. Civ. P. 166a(c). The comment to rule 166a(i) notes that, though a respondent to a no-evidence summary judgment is not required to marshall his proof, he must "point out evidence that raises a fact issue on the challenged elements." Tex. R. Civ. P. 166a(i) cmt. (emphasis added). At least one court of appeals has concluded that factual recitations in the background portion of a summary judgment response could not serve as a basis to reverse a no-evidence summary judgment on appeal. See Gunnels v. City of Brownfield, 153 S.W.3d 452, 466 (Tex. App.--Amarillo 2004, pet. denied) (op. on reh'g) ("The passing references in the statement of the nature of [appellant's] case fail to meet the 'expressly presented' requirement of Rule 166a(c) and may not now be used to reverse the trial court's summary judgment."). Similarly, in this case, passing references to "the fact of [McKnight's] incarceration," whether in his affidavit, Brown's motion for summary judgment, or our sister court's opinion cannot operate to reverse the trial court's summary judgment when McKnight never pointed to such as a basis for reversal until his motion for rehearing.