stating that “[e]ven if the 41 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” and concluding that “Rule 166a(c) does not require a non[]movant to except in this situation”
How later courts described this case
- stating that “[e]ven if the 41 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” and concluding that “Rule 166a(c) does not require a non[]movant to except in this situation”
- holding that 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. In determining whether grounds are expressly presented, reliance may not be placed on briefs or summary judgment evidence.
- holding that “[t]he practical effect of failure to [specially] except is that the non-movant loses his right to have the grounds for summary judgment narrowly focused, thereby running the risk of having an appellate court determine the grounds it believes were expressly presented in the summary judgment.”
- explaining that grounds for granting summary judgment must be expressly stated in the motion, 15 and grounds for avoiding summary judgment must be expressly stated “by written answer or other written response to the motion and are not expressly presented by mere reference to summary judgment evidence”
Written by the judges who cited it.
Later courts went against this
Disagreed with by Cargill, Incorporated v. Merit Distribution Services, Inc. (2003)
We disagree with Cargill's contention that McConnell and its progeny
The opinion
ENOCH, Justice,
dissenting.
I agree with the Court that the plain words of Rule 166a(c) of the Texas Rules of Civil Procedure establish a bright line rule. The grounds for the granting of a motion for summary judgment must be *350 stated in the motion. 1 However, I would not address any of the other issues, nor can I agree that in this case the failure to include the grounds in the motion itself is harmful. The evidence in the record establishes that neither the court nor the non-movant was unaware, confused or mislead as to the specific grounds being relied upon by the movant. Therefore, I would affirm the judgment of the court of appeals.
PHILLIPS, C.J., joins in this dissenting opinion.
. Responding to Justice Hecht's criticism that requiring the grounds for summary judgment to be stated in the motion is a technicality without a purpose, at least one court of appeals has stated "... the trial brief is neither in the record before us nor would it properly be part of the appellate record." Concrete Constr. Supply v. M.F.C., Inc., 636 S.W.2d 475, 483-84 (Tex.App.-Dallas 1982, no writ) (citing Tex.R.Civ.P. 376a, now found in Tex.R.App.P. 51 and 52 (emphasis added).