Reversed and Remanded and Memorandum Opinion filed March 21 , 2024
.

In The 

## Fourteenth Court of Appeals

NO. 14
- 22
- 00144
- CV

GARY WAYNE SPANGLER , JUNIOR , Appellant V. BRANDY L. LISS , AS INDEPENDENT EXECUTRIX OF THE ESTATE OF

MARY A. JAMES, DECEASED , A ppellee

On A p peal from the Probate Court Galveston County, Texas Trial Court Cause No. PR
- 0081495
- A

MEMORANDUM OPINION Appellant Gary Wayne Spangler ( “ Spangler ” ) and the decedent, Mary A. James ( “ James ” ) , were formerly co
- owners in a hospice care bus in ess . After Jam es ’ s death, Spangler sued her estate to recover his interest in the business

. The trial court granted summary judgment to Brandy L. Liss ( “ Liss ” ) , the independent

ex e cu trix , and Spangler appeals in fou r issues. W e reverse the trial court ’ s or der and rem and for further proceedings

.2 I. B ACK G ROUND Span gler and James owned several medical business es together , including Essential Hospice and Palliative Services, LLC ( “ Esse ntial ” ) , which they and five other indivi dual s purchased in 20 17. Spangle r own ed 55.9% of Es se ntial after the purchase , and James owned 29.4%. In early 2018, Spangler learned that he was facing a federal ind ict ment for allegedly mis billing Medicaid and Medicare

. Such

a n indictment could have resulted not just in a criminal convi ction for Spangler, but also the cancelation of his businesses ’ authority to bill Medicaid and Medica re for patient treatment s
. In preparing for the interruption that would be po sed by the federal indictment and trial, Span gler sold 4.9% of Essential in Ma rch 201 8 to a third party

. The $125,000 in proceeds from the sale were deposited in Essential’s bank account. On March 2, 2018, Spangler as signed his rem aining fi fty

- one percent ownership intere st in E ssential to Jam es ( “ the Assignment ” )

. Spangler states t hat he and James agreed she would hold the fifty

- one percent interes t he transferred to her , make no distribut ions of profit fro m Essential, a nd , when the fed eral legal iss ues resolved, re

- c onvey the interest to Spangler . Spangler states that he received n o other consideration for the Assignment

. Spangler was acquitted of the federal charges on February 19, 2020

. After wards, he requested co
- ow ners in his var ious businesses, including James, to

re
- conve y his former interests to him. James die d on February 22 , 2021 , from complications fro m CO VI D

- 19 befor e she could r e
- convey fi fty

- one percent of Essential to Sp angl er. Spangler filed a declaratory judgment lawsuit in May 20 21 against the

exec utrix of James ’s estate , seeking a declaration that the Assignmen t wa s void for lack of considera t ion, that he owned fifty

- one percent of Esse ntia l, and that Jame s and her es tate had n o interest in Essential

. The executrix, appellee Liss, filed a3

motion f or partial summary judgment assert ing t hat (1) parol evidence wa s inad missible to contradict the Assignment ’ s recitation o f “ g ood and sufficie nt consideration ” ; (2) parol evidence could not be used to prove a “ side agreement ” that James had agr eed to re

- convey Spangler ’s former inte rest in Essential to him ; and (3) that Jame s had held an inter est in Esse ntia l befo re the Assignment

. 1
Liss set her motion for submission on Septembe r 14 , 2021

. 2 Seve n days before the submission , Spangler timely filed a response to Liss ’s motion for partial summary judgment and a fi rst amended peti tion

. In his f irst amended petition , Spangler add ed c auses of action fo r breach of cont ract, conversion, frau d, and constructive trust for breach of fiduciary duty. Li ss did not ame nd her motion f or partial summary judgment to a d dres s these claims. Nonethe less, the trial court granted a summary judgment o n all claims

. Thereafter, Spangler filed his second through fifth amended petitions to add four other claims a nd a motion f o r new trial, which the trial court denied. 3 This appeal ensued

. II. S T AND ARD OF R EVIEW We review the granting of a summary judgment under a de novo standard of review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009 ). “[W]e apply the fam iliar standard of review appropriate for

1 Sp angler ’ s counsel conceded that James owned an interest in Essential before the As signment and told the trial court that the request for declarator y relief thus contained a typo graphical e rror
.

2 The hearing or submission date determines the non
- movant ’ s deadline to file a resp onse to the motion for summary judgment

. Martin v. Martin , Martin & Richards, Inc. , 989 S.W.2d 357, 359 (Tex. 1998). “ Although Rule 166a(c)

. . . calls for a hearing on a motion for summary judgment,

. . . u nless require d by the express language or the context of the particular rule, the term ‘ hearing ’ does not necessarily contemplate either a perso nal appearance before the court or an oral presentation to the court. ” Id. at 359.

3 A motion for new trial is not a prerequi site for an appeal of a summary judgment proceeding

. Lee v. Braeburn V alley W. Civic Ass ’ n , 786 S.W.2d 262, 263 (Tex. 1990).4

each type of su mmary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmova nt ’ s favor.” Dias v. Goodm an Mfg. Co., L.P. , 214 S.W.3d 672, 675

– 76 (Tex. App.

— Houston [14th Dist.] 2007 , pet. denied)

. The movan t must state in its motion the specific grounds upon which the summary judgment should be granted. See Tex. R . Civ. P. 166a(c ). To prev ail on a traditional motion for summary judgm ent, a movant must establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Id. ; Mann Frankfort , 289 S.W.3d at 848. Aft er the movant facia lly establ ishes its right to summary judgment, th e burd en shifts to the nonmovant to present a material f act issue that precludes summary judgment

. See City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (T ex. 1979); Dolce fino v. Randolph , 19 S .W.3d 906, 916 (Tex. App.

— Houston [14th Dist.] 20 00, pe t. denied). Evidence raises a genuine issue of mat erial fact i f reaso nable and fair

- minded jurors co uld differ in their conclusions in light of all of the summary judgment evidenc e. See G oodyear Tire & Rubber C o. v. Maye s , 236 S.W.3d 754, 755

– 56 (Tex . 2007) (per curia m). When, as here, the trial court ’ s o rder granting summary judgment does not specify the g rounds relied on for the ruling, the summary judgment will be affirmed if any of the t heories advanced are me ritorious. State Farm Fire & Cas. Co. v. S.S. , 858 S.W. 2d 374, 380 (Tex. 1993); Olmstead v. Na poli , 383 S.W.3d 650, 652 (Tex. App.

— Houston [14th Di st.] 2012, no pet.).
III. A NALYSIS In his second issue, which is dispo sit ive, Spangle r a sserts that the tria l court

er red in granting Liss ’ s motio n for partial sum mary judgment on his claims for declara tory relief alleging (1) the Assignment was void for lack of consideration5

and (2) he owns fifty

- one percent of Essential. Liss argue s that Spangl er c ann ot u se parol evidence to contra dict the Assignment ’ s recitation of “ go od and valuable ” consideration or to establish a “ side agreement ” that differed from the Assignment ’ s terms

. Liss also a rgues that the Dead Man ’ s Rule pre vent s the tria l court from considering Spangler ’ s declaration about lack or failure of consideration. A. C ONSIDERATION & P AROL E VIDENCE Generally, a contract must be supporte d by consideration to be enforceable. Alex Sheshun off Mg mt. Servs., L.P. v. Johnson , 209 S.W.3d 64 4, 659 (Tex. 2006). “Consideration is a present exchange bargained for in return fo r a promise.” Roark v. Stallworth Oil & Gas, In c. , 813 S.W.2d 492, 496 (Tex . 1991). When an instrument recites that considera tion h as been given, we presume that c onsiderati on to b e sufficient

. McLern on v. Dynegy, Inc. , 347 S.W.3d 315, 335 (Tex. App.

— Houst on [14th Dist.] 2011, no pet.) “ Ho w ever, parol evidence is admissible to sh ow want or failure of consideration and establ ish the ac tual consideration given for the instrumen t. ” I

d. (citing DeLuca v. Munzel , 673 S.W.2d 373, 376 (Tex. App.

— Houston [1st Dist. ] 1 984, writ ref ’ d n.r.e.) )

. Liss argue s that Spangler c annot use parol evid ence to c ontradict the Assignment’s recitation of “good and valuable” consideration

. Li ss likens t he Ass ignment to the contract in Lakeway Co. v. Leon Howard, Inc. , in which the Texas Supreme Court held that “[w]he n the consideration expressed in a writing is
contractua l in nature, and not simpl y a recital of consideratio n already performed, the parol eviden ce rule does apply.” 585 S.W.2d 660, 662 (Tex. 1979) (per curiam). Unlike the Assignment between S pangler and James, the written contract in Lakeway specified $18,000 in consideration

. Id. at 661. The court in Lakeway explained that a prev ious or simul tane ous agre ement to alter $18,000 to $23,0006

was in conflict with the written contract a nd not merely collateral to it. See i d

. In contrast, t he recitation of considera tion in the Assignment betw een Spangler a nd James does not include a speci f ic dollar amoun t

. T he As signment instead states that Spangler and James exchanged “ good and valuable considera tion , the recei pt and sufficiency of which are he reby acknowledged , ” which is “ simply a recital of co nsideration already performed ” fo r which La keway contempla tes the admission of p arol evide nce
. I d. ; see Carrico v. Kondos , 111 S.W.3d 582, 586

– 87 (Tex. App.

— Fort Worth 20 03, pet denied ) ( addressing a contract for “ c onsideration of [$10] and o ther good and valuable consideration ” and concl uding the “ recit al of ack nowledgement of co nsideration is no more than a statement of fact that may be contradicted by parol evidence ” )

. Liss also contends that the parol evidence rule and related doctrine o f merger preve nt evidence of a “ side agreement ” to re

- convey Sp angler ’ s interest

. W hen par ties have entered into a valid, written, integrated contract, the parol evidence rule preclu de s e nforcement of any prior or contempo raneous agreement that addr esse s the sam e subject matter and is inco nsiste nt with the written con tr act. West v. Quintanilla , 573 S.W.3d 237, 243 (Tex. 2019). An integrated contract is a writing or writings co nstituting a final expression of one of more ter ms of an agreement , and a c ompletely int egrated contract is a full and exc lu sive statement of the t erms of the agreement. Id. at 244 (citing Black ’ s Law Dictionary). However, the parol evidence rule does not bar evide nce of consistent collateral agreements , even when the two agreements addres s related subjects

. See id. at 247 ; see , e.g. , ERI Con s ulti ng Engineers, Inc. v. Swinnea , 318 S.W.3d 867, 87 5

– 76 (Tex. 2010) ( concluding par o l evidence rule did not preclude partie s ’ oral agreement that engineering f irm w ould cont inue leasing office space a s part of the consideration for buyout of the engineering firm) . Moreov er, a trial court m ay7

consider parol evidence to determine if consideration exists “ even though the parties have reduced their agreement to a writing which ap pears to be a completely i n tegrated agreement. ” Audubon Indem. Co. v. Cus tom Site

- Pre p , Inc. , 358 S .W.3d 309, 31 6 (Tex. App.

— Houston [1st Dist.] 2011, pet. denied)

. Thus, it was proper f o r the trial court t o consider parol evidence to show lack or failure of consideration for the Assignment

. See M c Lern on , 347 S.W.3d at 335

. In his declara t ion, Spangler in cluded the statement “ I received no consideration for the Assignment other than James ’ agreement to recon v e y my interests if I was ultimately acquitted. ” Th i s is evidence ab out lack or failure of consideration , and , taken in the light most favorable to th e non
- movant, raises a fact issue about Spangler ’ s cl aim s for declarat ory relief

. B. D EAD M AN ’ S R ULE Liss next contends that the trial court was barred by Texas Rule of Evid ence 601(b), the “ Dead Man ’ s Rul e , ” from con sidering th e statem ent in Sp angler ’ s declaration that he rec eived no conside ration for the Assignment other than James ’ s agreement to reconvey th e interest

. The Dead Man ’ s Rule generally prohibits a party from testifying about oral statements by a testator unless the

s tatements can be cor r oborated or are solicited by the opposing party. Tex. R. Evid. 601(b); E state of Wright , 482 S.W.3 d 650, 655 (T ex. App.

— Houston [14th Dist.] 2015, pet. denied ). Liss raised the Dead Man’s Rule in her objections to Spangler’s summary ju dgment evidence , but ther e is no ru ling in the record. A n objection and

r uling in th e trial court is a p re r e quisite to prese rve this argument for appe llate review

. See Tex. R. App. P. 33.1(a); Seim v. Allstate Tex. Ll oyds , 551 S.W.3d 161, 164

– 66 (Tex. 2018) ; see a lso Wright , 482 S.W.3d at 656 (concluding that Dead Man ’ s Rule had been waived ); Fra ga v. Drake , 276 S.W.3d 55, 6 1 (Tex. App

. — El Paso 2008, no pet.) ( concluding that Dead Man ’ s Rule had been waived ).8

Finally, e ven i f Liss c ould assert the Dead M an ’ s Rule on appeal without having obtained a ruling in the trial co urt, the Dead Man ’ s Rule a pplies only to an “oral statement by the test ator .” Tex . R. of E vid. 601(b)(2)

. A portion of Spangle r ’ s de claration , stat ing that “ I received no consideration for the Assignment ” is not an oral statement by th e testator and would not be subject to the Dead Man ’ s Rule. 4
We therefore conclude tha t ( 1 ) Spangler w as permi tted to introduce parol evidence about lack or failure of consideratio n; (2) we do not address the Dead Man ’ s Rule because it was not preserved for appellate review ; (3) a portion of Spangler ’ s declaration is not subject to the Dead Man ’ s Rule ; and (4) Span gler ’ s decl aration r aised a fact issue regarding his claim that “ [t]he Assignment is void for lack of consideration

. ”
C
. R EMAINING I SSUES Next, we address the other gr ounds assert ed in Liss ’ s motion for partial summary judgment an d Spang ler ’ s remaining appell ate issues regard ing c auses of action he ad ded in f

irst through fifth amended pe t i tions

. Liss ’ s motion for part ial summary judgment argued t hat “ [ b ] ecause the

4 When the Dead Man ’ s Ru le is app licable, a party may evade its applica tion with corroborating evidence

. Fraga , 276 S.W.3d at 61 . T he corroborati on need not be sufficient standing alone but must tend t o confirm and strengthen the t estimony of the witness and sho w the probability of its tr uth. See i d. ; Cole man v. Coleman , 170 S.W.3d 231, 23 9 (Tex. App.

— Dallas 2005, pet. denied). Spangl er provided th e deposition testimony of a witness , Josie Van , in his m otion for new trial. Van testified that Spangler sold his int erest in Essential to James to protect th e company during the fed eral litigation

. Van also testified James confirmed “ in the event that [Spangler] was exonerated from these c harges, that they agreed that she would allow him to buy his shares back. ” Beca use we conclude that Spangle r ’ s declaration ra ises a fact i ssue that prevents summary judgment, w e nee d not reach issues related to admissibility of Van ’ s tes timony or denial of Spangler ’ s motion for new trial

. See Te x. R. App. P. 47.1 ; Lance v. Robinson , 543 S.W.3d 723, 74 0 (Tex. 20 18) ( “ Rule 47.1 requires only that the court of appeals address issues nec essary to dispose of the a ppeal. ” )

.9

Assignment was su pported by adequa te consideration, ” Spangler’s “sec ond request ed declaration

— that he owns 51% of Essential

— a lso fails.” This ground

was expressly contingent on Liss establishing en titlement to summary judgment on her first ground

. We have con cluded that Spangler r aised a fact issue on Liss ’ s first ground a s to failure or lack of con sideration

. It thus fo llows that summa r y judgment cannot be awarded on this second , contingent ground

. In his remaining appellate issues , Spangler argu es that the trial court erred in granting summary judgmen t on eight claims he pleaded in amended petitio n s
. Spangler added four of the eight claim s in his first amended petition

— breach of contract, conversion, fraud, and breach of fiduci ary duty and constructive trust

. A party may amend his pleadings after a motion for summ ary jud gment is filed until seven days before the summary ju dgme nt hearing. See Tex. R. Civ. P. 63; Yeske v. Pia zza Del Arte, Inc. , 513 S.W .3d 652, 671 (T ex. App.

— Houston [14th Dis t.] 2016, no pet. ). Spangler timely filed the first amended petition seven d ays bef ore the summary judgment hearing

. Lis s did not amend her motion to address these four new claims. Because a court’s authority to re nder a summary judgment de p ends on “the issues expressl y set out in the motion or in an answer or any other response,” see Te x. R. Civ. P. 166a(c) , a trial court cannot grant a summar y judgment on grou nds that were not presented. See FDIC v. Lenk , 361 S.W. 3d 602, 609 (Tex. 2012) ; B r idges tone Lakes C

m ty

. Improv ement Ass ’ n v. Bri d gestone Lakes Dev. Co. , 489 S.W.3d 118, 122 (Tex. A pp.

— Houston [14th Dist.] 2016, pet

. de nied )

. A m ovant who does not amend or supplement her pending summary judgment motion to addre ss newly

- added claims is g en erally not entitled to summ ary judgment on those claims. See Blancett v. L agniappe Ventures, Inc. , 177 S.W.3d 5 84, 592 (Tex. App.

— Houst on [14th Dist.] 2005 , no pet.); Smith v. Atlantic Richfield Co. , 92710

S.W.2d 85, 88 (Tex. App.

— Houston [1st Di st.] 1996, w rit denied).
If a trial co urt grants a summary judgment on a claim not ad dressed in the motion, then the trial court ’ s error is re versible. See Lehmann v. Har

– Con Corp. , 39 S.W.3d 191, 200 (Tex. 2001) ; Bridgestone , 489 S.W.3d a t 123. T here are limite d e xceptions to this under the har mless error rule. See G&H Towing Co. v. Magee , 347 S.W.3d 293, 297

– 9 8 (Tex. 2011) (per curiam) (citing Te x . R. App. P. 44.1(a)). But such limited exceptions can be consid ere d only when the trial cour t correctly grant s s ummary judgment on a g round r aised in the motion

. See Ineos USA, LLC v. Elmg ren , 5 05 S.W.3d 555, 5 66 (Tex

. 2016 ) ( refusing to expand the harmless

- error ru le to an appeal in whi ch the trial court erroneously granted summary judgment on t he grounds raised in the motion). A m ovan t cannot be denied summary judgment on its pleaded grou nd s but granted summary judgm ent

on a n unple aded ground. See id

. B ecause we ha ve concluded that the trial court erred in granting summary judgment on the ba s es asserte d in Liss ’ s m otion, we decline to a nalyze the harmless error exception for the four cause s of action timely pleaded in Spangler ’ s first amended petition

. To the extent the trial court granted summary judgment on the c auses of action added in Spangle r ’ s first amended pe tition, this con stitutes error. Finally, a lthough Spang ler complains on appeal of additional causes of

ac tion he pleaded in his second th rough fifth amended petitions, these petitions were filed after the submission on summary judgment. A trial court can consider onl y the pleadings and proof on file at the time o f the hearing on summary judgment o r filed afte r the hearing and before judgment with the permission of the court. Leinen v. Buffington ’ s Bayou City Se rv. , 82 4 S.W.2d 682, 685 (T ex. App.

— Houston [14th Dist.] 1992, no writ). After submission , a p arty must obtain a written order granting le ave to file an amended petition. See Tex. R. Civ. P.11

166a(c); Hussong v. Schw an’s Sales Enters ., 896 S.W.2d 320, 323 (Tex. App.

— Houston [1st Dist .] 1995, no writ). There is n o such leave to file the second throug h fifth amended petitions in the record. T hus, t he trial c ourt could have considered only the pleadings and proof on fil e a t the time of submission of the summary judgment. See Hus song , 896 S.W.2d at 323. We do not consider Spa ngler ’ s new cla ims raised in the second through fifth amended petitions in our

ana lysis

. I V. C ONCLUSION For the reasons stated above, w e conclude that Spangler raised a fact issue

on his claims for declarator y relief pre cluding summary j udgment

. Further, Liss did not move for summar y judgment on the four additional causes of action S p angler pleaded in his first a mended petition ; we conclude that h ar mless error analysis cannot be extended to them. Because it was error f or the trial co urt to grant summary judgment on the claims for declaratory relief and the four additional cla ims pleaded in t he first amended pe tition , w e reverse the trial court ’ s orde r and remand to the trial court for fu rther p roceedings

.

/s/ Margaret "Meg" Pois sant Justice

Panel consist s of Justices Wise , Zimmerer, and Poissant.