NUMBER 13-07-381-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

RAMON AND ANITA GARCIA, Appellants,

v.

STATE FARM LLOYDS, Appellee.

 

On appeal from the 275th District Court of Hidalgo County, Texas.

 

CONCURRING OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides

Concurring Opinion by Justice Yañez

I agree that State Farm’s no-evidence motion for summary judgment is legally

insufficient because it fails to state specifically which elements of the Garcias’ claims are
See TEX. R. CIV. P. 166a(i); Callaghan Ranch, Ltd. v. Killam, 53 S.W .3d 1, 3 (Tex. App.–San Antonio 1

2000, pet. denied). 

See Hamlett v. Holcomb, 69 S.W .3d 816, 819 (Tex. App.–Corpus Christi 2002, no pet.). 

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being challenged. I further agree that the motion is therefore treated as a traditional 1

motion for summary judgment. However, in reviewing the motion as a traditional motion, 2

I would hold that it is legally insufficient as a matter of law because the grounds for

summary judgment are not expressly presented in the motion. Accordingly, I concur in the

judgment, but for different reasons. 

Sufficiency of State Farm’s Motion 

In its motion, State Farm argued only one non-mold-related “ground,” as follows: 

Additionally, there is no evidence that the amount paid by State Farm

was insufficient to repair the water damage. The Garcias have repaired their

home, yet there is no evidence the cost of repairs exceeded the $26,779.42

State Farm paid.

 

The majority addresses the argument that State Farm makes in its appellate

brief—that based on a specific provision in the policy, State Farm’s liability is limited to the

amounts the Garcias “actually and necessarily spent” to repair the damage to their home.

The majority finds the provision State Farm relies on to be inapplicable, and thus

concludes that the motion was “based on a flawed premise.”

In McConnell v. Southside ISD, the supreme court held:

Consistent with the precise language of Rule 166a(c), we hold 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.

. . . . 
McConnell v. Southside ISD, 858 S.W .2d 337, 341-42 (Tex. 1993) (emphasis added). 3

Renteria v. Trevino, 79 S.W .3d 240, 242 (Tex. App.–Houston [14th Dist.] 2002, no pet.). 

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See Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215-16 (Tex. 2003). 5

Lear, Sigler, Inc. v. Perez, 819 S.W .2d 470, 471 (Tex. 1991). 6

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These rules also permit the trial court to consider a brief in support of a

motion for summary judgment as guidance in making its determination

whether the summary judgment evidence demonstrates that the moving

party is “entitled to judgment,” see TEX. R. CIV. P. 166a(c), but not in

determining whether summary judgment grounds and issues are expressly

presented.

. . . .

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. 

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To recover under a breach of contract cause of action, the Garcias were required

to show: (1) the existence of a valid contract, (2) that they performed or tendered

performance, (3) that State Farm breached the contract, and (4) that they sustained

damages as a result of State Farm’s breach. 

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To be entitled to summary judgment, State Farm was required to show that it was

entitled to judgment as a matter of law and that no genuine issue of material fact exists.5

State Farm was required to disprove, as a matter of law, one of the essential elements of

each of the Garcias’ causes of action.6

Here, the majority implicitly construes State Farm’s motion as challenging either the

“breach” element or “damages” element of the Garcias’ claim. I conclude that State Farm

has failed to expressly present the grounds upon which the motion is made in the motion
See McConnell, 858 S.W .2d at 341. 

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See id. at 342.

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itself. Accordingly, I would hold that the motion is legally insufficient as a matter of law. 7 8

 

LINDA REYNA YAÑEZ,

Justice

Concurring Opinion delivered and filed

this the 30th day of April, 2009.