## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 15 - 00118 - CV

IN THE INTEREST OF A CHILD

---------- FROM THE 325TH DISTR ICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 325

- 554472

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### CONCURRING OPINION

---------- I. Introduction If it looks like a duck, walks like a duck, swims like a duck , quack s like a duck

— and mo st importantly calls itself a duck

— it’s a duck

. The majority opinion holds that the trial court “correctly” recharacterized a three

- page, bare

- bones “Mot ion to Dismiss” as a motion for summary judgment pursuant to rule of civil procedure 71 even though the dismissal mo tio n made no mention of rule 166a, never employed the terms “summary” or “summary judgment,” included no reference to the summary judgment s tandard of review,2

provided no guidance on whether a traditional or no

- evidence burden should apply, and did not request summary judgment relief. 1 Because , at best , such a

1 In the introduction on page one, mov ant refer red to the motion as a “Motion to Dismiss with prejudice .” [Emphasis added.] Section I on page one provide d a brief factual summary and pr ocedural history of the case. Page two began with section II, entitled “Grounds of Dismissal .” [Emphasi s added.] This section consist ed of two sentences , “ [The parents] had the opportunity to file a motion for new trial because they had sufficient notice of the judgment. Having failed to do so, they are now precluded from filing a bill of review. ” Sect ion III, entitled “Argument and Authorities,” follow ed on pages two a nd three with four paragraphs. The first paragraph set forth the elements of proof required to prevail in a bill of review proceeding and conclude d with the sentence, “At issue here is w hether [the parents] had timely notice of the judgment within the time frame set forth in Rule 306a TRCP in order to file a motion for new trial.” The second paragraph of section III consist ed of one sentence, “A party who has notice of the entry of a j udgment while the remedy of filing a motion for new trial is available and who fails to do so, is precluded from asserting a bill of review,” followed by citations in support of that statement. The third paragraph, in six sentences, discusse d a party’s du ty to inquire as to whether a judgment has been signed and the law with regard to imposition of constructive notice when a par ty fails to make such inquiry. The fourth paragraph con sisted of a two
- sentence summary, “ Because [the parents] each signed the j udgment, they participated in the trial . . . . They were therefore charged with notice of the judgment and had a duty to inquire when the judgment was entered. ” [Citations omitted.] Finally, the motion conclude d with a prayer for relief: WHEREFORE, R espondent prays that notice be given

. . . and that upon hearing Respondent’s Motion that it be granted and that Petitioner’s Original Petition for Bill of Review be dismissed with prejudice and for such other and further relief to which Respondent may be entitled to receive. [Emphasis added.]3

holding would create uncertainty and , at worst , it would create a trap fo r civil
pr actitioners and trial courts who are guided by the words we choose, I cannot agree with the majority opinion. But because I agree with the result reached, I respectfully concur rather than dissent. II. Discussion
A . Summary Judgments and Due Process S u mmary judgments deprive litigan ts of the right to a jury trial and are not to be granted without the procedural protections necessary to provide the nonmovant with due process. See Tanksley v. CitiCapital Commercial Corp. , 145 S.W.3d 760, 763 (Tex. App.

— D allas 2004, pet. denied). For example, t he nonmovant is entitled to proper notice under rule 166a, and the failure to provide notice deprives the litigant of the right to be heard, constitutes a denial of due process, and is grounds for reversal. See L ew is v. Blake , 876 S.W.2d 314, 315 (Tex. 1994); s ee also Etheredge v. Hidden Valley Airpark Ass’n , 169 S.W.3d 378, 383 (Tex. App.

— Fort Worth 2005, pet. denied) (op. on reh’g). Due process also requires that the parties receive notice “‘reasonably calculated , under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.’” Peralta v. Heights Med. Ctr. , 485 U.S. 80, 84, 108 S. Ct. 896, 899 (1988) (quoting Mullane v. Cent. Hanov er Bank & Trust Co. , 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)); see Tex. R. Civ. P. 166a(c).4

Further, a court cannot grant summary judgment on grounds not expressly presented in the motion. G & H Towing Co. v. Magee , 347 S.W.3d 293, 297 (Tex. 2011) ; State Farm Lloyds v. Page , 315 S.W.3d 525, 532 (Tex. 2010). T he summary judgment motion must give fair notice to the nonmovant of the basis on which the summary judgment is sought. Tex. R. Civ. P. 166a; Waite v. Woodard, Hall & Primm , 137 S.W.3d 277, 2 81 (Tex. App.

— Houston [1st Dist.] 2004, no pet.). And in d etermining whether grounds are expressly presented, we may look only to the motion itself; we may not rely on briefs or summary judgment evidence

— even if attached to the motion itself

— or any other document on file in the case

. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (citing McConnell v. Southside ISD , 858 S.W.2d 337, 341 (Tex. 1993)); Garza v. CTX Mortg. Co. , 285 S.W.3d 919, 923 (Tex. App.

— Dallas 2009, no pet.); see Tex. R. Civ. P. 166a(c), (i)

. Likewise, the standard of review provides procedural protections. See Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). When g ranted, a motion for summary judgment results in a judgment on the merits on the particular ground or grounds raised. See Tex. R. Civ. P. 166a(a)

– (c), (i). In contrast, g enerally speaking, motions to dismiss, when granted, result in dismissal orders, eit her with or without prejudice. See, e.g., Turner v. Delgado , No. 09

- 14

- 00339

- CV, 2015 WL 7300711, at *1 (Tex. App.

— Beaumont Nov. 19, 2015, no pet.) (mem. op.); Leachman v. Dretke , 261 S.W.3d5

297, 312 (Tex. App.

— Fort Worth 2008, no pet.) (op. on reh’g); se e also Tex. Civ. Prac. & Rem. Code Ann. § § 13.001 , 14.003, 14.010 (West 2002) (addressing dismissal s for indigent or incarcerated civil part ies ) , § 74.351(b) (West Supp. 2015) ( addressing dismissals in health care liability case s ); Tex. R. Civ. P. 165a (se tting out procedure governing dismissal for want of prosecution).
B
. Gladney’s Motion to Dismiss On its face, the motion to dismiss filed by Gladney in this case b ears no resemblance to a motion for summary judgment. The motion contains nary a hint th at the motion’s true nature was

— or even could be

— a motion that would trigger an analysis or response pursuant to rule 166a. Nor does the record d emonstrate that either party viewed the m otion to d ismiss as a summary judgment motion. In the ir response to G ladney’s motion to dismiss, the p arents argued that summary judgment, not dismissal, was one of only two proper procedural vehicles (the other being a special except ion) to raise Gladney’s issue. The parents’ attorney repeated this at the dismissal hearin g. Fully aware of this challenge to its dismissal motion prior to the hearing, Gladney nonetheless chose to proceed with its chosen vehicle. Only when pressed at the hearing on the dismissal motion did Gladney’s attorney suggest to the trial court that i t would be “entirely proper to consider [the motion to dismiss] a motion for summary judgment.” In response , the parents’ attorney lodged more than one objection, voicing several of the due proc ess concerns addressed herein.6

Nevertheless, at the conclusi on of the hearing, the trial court found that the motion to dismiss was a n “inartfully named” 2 motion for summary judgment

. But for the fact that the trial court s imultaneously cur ed the due process problems created by its erroneous 3 redesignation, the tri al court’s action would have constituted an abuse of discretion. But t he discretion afforded a trial court includes the right to be wrong, as long as it does no harm. See Landon v. Jean

Paul Budinger, Inc. , 724 S.W.2d 931, 936 (Tex. App.

— Austin 1987, no writ) (observing that the abuse

- of

- discretion standard also “protects to a limited degree the trial court’s ‘right’ to be wrong without suffering appellate revision” when the trial court’s error is not prejudicial or does not result in injury). Because t he trial court gave the parents notice that it was considering the m otion

2 In response to Gladney’s assertion that “Rule 71 says how it’s designated has got nothing to do with the substance of the motion,” the trial court asked the parents’ attorney, “[If] I find that . . . [the] Motion T o Dismiss is just inartfully named and it really is a Motion for Summary Judgment, what is it that you need time to do that you have n’t already done in response?”

3 Rule 71 states, “When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated . . . .” See Tex. R. Civ. P. 71. T he word “ require ” has been defined to mean “demand, compel, need, to be in need of.” Black’s Law Dictionary (5th ed. 1979). W hile the redesignation was more expedient, at least from Gladney’s perspective, Gladney provided no argument or evidence of any c ompelling need for the redesignation such that it could be said that justice required it

. Nor was there any showing of mistake n designation, i.e., Gladney did not offer any evidence or even argue that the motion was mistakenly designated “Motion to Dismiss” when it should have been designated “Motion for Summary Judgment.”7

to d ismiss as a motion for summary judgment on the narrow ground articulated in the record, provided additional time for discovery , and granted an extension of the time allowed by th e rules to file a summary judgment response to the redesignated motion , the erroneous ruling caused no harm. U nder different circumstances, such redesignation could have operate d to deprive a litigant of his or her proced ural safeguards

. So, i t is only because of the circumstances peculiar to this case

— the trial court’s mitigation of harm attendant to the error

— that we should find no abuse of discretion in the redesignating of the motion to dismiss as a motion for summary judgment. T o go further and pro nounce legally correct the practice of redesignating a motion to dismiss like the one presented here as a motion for summary judgment

— especially when it is unnecessary to reach the same result in this case

— places

an unnecessary and unreasonable burden upon trial practitioners in the future who are charged with the duty of adequately responding to motions

. Standing alone, as written, Gladney’s m otion to d ismiss would not provide fair notice to any legal practitioner or party that summary judgment, as oppos ed to dismissal, was sought

. But because the majority would characterize the trial court’s action as legally “correct,” p rudent practitioners may now feel compelled to engage in time

- consuming, costly , and frustrating mental gymnastics aimed at predicting any possible alternative way an otherwise clearly

- drafted and properly

styled motion could be re designated by a trial court . Then they must consider devoting the additional time and resources to respond accordingly

. Likewise, trial8

judges may now feel o bliged to look beyond labels , words , and arguments in well

- articulated, unambiguous motions

— even when no mistake is alleged or proven and justice does not require redesignation

— lest they make a legally incorrect decision. See Tex. R. Civ. P. 71. Thus, t he majority’s conclusion that the trial court’s decision was legally correct, rather than harmless error , creates an unnecessary trap for practitioners and trial courts alike. III. Conclusion Because the majority would affix its imprimatur upon the practi ce of judicial redrafting of an unambiguous motion to dismiss into a motion for summary judgment under the auspices of rule 71, I concur only in the outcome.

/s/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE

DELIVERED: April 7, 2016