Hughes v. St. David's Support Corp.

ON MOTION FOR REHEARING

In its motion for rehearing, St. David’s insists that this Court should affirm the summary judgment of the trial court because there exists as unattacked ground upon which the summary judgment was proper. St. David’s contends that one of its grounds for summary judgment was that the Hughes appellants’ lawsuit was brought for an improper purpose and, therefore, because the summary judgment did not specify the grounds upon which it was granted and further because the Hughes appellants did not preserve a point of error attacking this specific issue, the summary judgment must be affirmed. After reviewing the record, we disagree.

The Hughes appellants filed suit against St. David’s for various causes of action including breach of fiduciary duty. In its answer, St. David’s responded with a general denial and specifically did not plead by way of affirmative defense or plea in bar that the Hughes appellants’ lawsuit was brought for an improper purpose. The Hughes appellants then moved for summary judgment. In response, St. David’s filed a single legal *427 document entitled “St. David’s Response to Plaintiffs’ Motion for Interlocutory Summary Judgment.” In this document, St. David’s alleged that the damages sought by the Hughes appellants rightfully belonged to the limited partners of the operating partnerships and, therefore, the Hughes appellants’ lawsuit was brought for an improper purpose.

We do not regard such an allegation as an independent ground for the granting of a summary judgment, but rather as a defensive allegation going to the issue of damages. Further, the allegation was never raised in St. David’s pleadings and certainly was never specifically alleged as an affirmative defense or plea in bar. Accordingly, we overrule St. David’s motion for rehearing.