Adriene Sibley v. Charles Bernard Robinson, Individually, and in His Capacity as Representative Through His Power of Attorney for Elmira Hemphill, Joann Randle, Mary Ellen Phillips, Ruth Mae Robinette, and Carolyn Jean Robinson

Opinion issued July 14, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00454-CV
———————————
ADRIENE SIBLEY, Appellant
V.
CHARLES BERNARD ROBINSON, INDIVIDUALLY, AND IN HIS
CAPACITY AS REPRESENTATIVE THROUGH HIS POWER OF
ATTORNEY FOR ELMIRA HEMPHILL, JOANN RANDLE, MARY
ELLEN PHILLIPS, RUTH MAE ROBINETTE, AND CAROLYN JEAN
ROBINSON, Appellees

On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 64749

MEMORANDUM OPINION
 Appellant Adriene Sibley appeals from the trial court’s order granting

summary judgment in favor of appellees Charles Bernard Robinson, Elmira

Hemphill, Joann Randle, Mary Ellen Phillips, Ruth Mae Robinette, and Carolyn

Jean Robinson on appellees’ suit for partition of property. In several issues, Sibley

contends that the trial court erred in granting summary judgment because (1)

appellees lacked standing to assert a claim for partition; (2) the motion does not

satisfy the requirements of Rule 166a(c); (3) the motion is unsupported by

evidence showing appellees were co-owners of the property or that an informal

agreement existed between the parties; (4) the judgment does not conform to the

pleadings; (5) the judgment is based on an agreement that is void under the statute

of frauds; and (6) the judgment is void due to fraud upon the court. We reverse

and remand.

Background

On August 31, 2011, appellees filed a petition requesting that the court

partition a portion of a tract of land located in Brazoria County. 1 In their petition,

appellees alleged that they were co-owners of the unpartitioned portion with Joel

Ross, Sibley, Ora Mae Kennedy, Winston Rossow, Kimberly Dorsey, and

LaJuanda Denny. On October 5, 2011, appellees filed a supplemental petition

adding Sibley as a defendant.

1
This 16-acre tract of land is described as “Tract 10 of Division 18 of the Stephen
F. Austin 7-1/3 Leagues Grant, Abstract 20, Brazoria County, Texas.”
2
 Kennedy, Rossow, Dorset, and Denny were served with the petition but did

not file an answer. On December 2, 2011, Sibley, acting pro se, filed an answer

and counterclaim.

On May 22, 2012, appellees served Kennedy, Rossow, Dorsey, Denny, and

Sibley with plaintiffs’ first requests for admissions, first set of interrogatories, and

first requests for production. None of the defendants, including Sibley, filed an

answer or responded to plaintiffs’ discovery requests.

On July 2, 2013, appellees filed motions for interlocutory default judgment

against Kennedy, Rossow, Dorsey, and Denny based upon their failure to file an

answer. On July 22, 2013, the trial court granted the motions.

On August 21, 2013, appellees filed an application for citation by

publication for Ross and the trial court appointed an attorney ad litem to represent

him. Ross subsequently filed an answer. Appellees served Ross with discovery

requests which Ross answered. On December 3, 2013, appellees filed a motion to

compel complaining that Ross’s responses were incomplete and asking that Ross

be required to fully respond to the requests. The trial court granted the motion and

ordered Ross to respond to the discovery requests and to appear before the court on

February 10, 2014, to confirm his compliance with the order. Ross failed to

appear.

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 On February 12, 2014, appellees filed a motion to deem admissions

requested admitted as well as a motion for summary judgment. Sibley filed her

summary judgment response. On May 27, 2014, the trial court granted appellees’

motion to deem admissions and motion for summary judgment. Sibley timely filed

this appeal.

Standard of Review

We review a trial court’s ruling on a summary judgment motion de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). To prevail on a

traditional summary judgment motion, the movant bears the burden of proving that

no genuine issues of material fact exist and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a plaintiff moves for

summary judgment, it must prove that it is entitled to summary judgment as a

matter of law on each element of its causes of action. See MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986) (per curiam); Action Towing, Inc. v. Mint Leasing, Inc.,

451 S.W.3d 525, 529–30 (Tex. App.—Houston [1st Dist.] 2014 no pet.).

If the movant meets its burden, the burden then shifts to the nonmovant to

raise a genuine issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Goodyear Tire & Rubber

Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (stating that summary

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judgment evidence raises fact issue if “reasonable and fair-minded jurors could

differ in their conclusions in light of all evidence presented”). In determining

whether there are disputed issues of material fact, we take as true all evidence

favorable to the nonmovant and indulge every reasonable inference in the

nonmovant’s favor. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997));

Action Towing, Inc., 451 S.W.3d at 530.

Discussion

In her second issue, Sibley contends that the trial court erred in granting

summary judgment in favor of appellees because their motion failed to state the

specific grounds upon which they sought summary judgment.

Rule of Civil Procedure 166a(c) requires that a motion for summary

judgment “state the specific grounds therefor,” and judgment will be rendered if

“there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law on the issues expressly set out in the motion or in an

answer or any other response.” TEX. R. CIV. P. 166a(c). Thus, “[a] motion for

summary judgment must itself expressly present the grounds upon which it is made

[and] . . . . must stand or fall on the grounds expressly presented in the motion.”

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

Appellees’ summary judgment motion states, in pertinent part:

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 The grounds of this request are that . . . any defense set forth in
Defendant’s, Adriene Sibley’s and Joel Ross’s, original answers are
insufficient as a matter of law; that there is no genuine issue as to any
material fact; and that the plaintiff is entitled to judgment as a matter
of law.

Citing to this Court’s decision in Boney v. Harris, Sibley argues that

appellees’ motion is insufficient under Rule 166a(c) and cannot support summary

judgment. See Boney, 557 S.W.2d 376, 378 (Tex. App.—Houston [1st Dist.] 1977,

no writ). In Boney, we concluded that the trial court erred in granting summary

judgment for the plaintiff because his summary judgment motion did not state any

specific grounds upon which it was based and, in failing to do so, did not comply

with Rule 166a(c). See id.; see also McConnell, 858 S.W.2d at 339 (noting that

Boney considered the language of Rule 166a(c) “when the motion for summary

judgment presented no grounds”). There, the plaintiff’s motion asserted that the

defendants’ answer was

insufficient in law to constitute a defense to Plaintiff’s cause of action;
that as shown by the pleadings, together with depositions, admissions
and affidavits, if any, on file herein, there is no genuine issue as to any
material fact between the parties herein, and by reason thereof the
Plaintiff is entitled to a judgment against both Defendants . . . as a
matter of law as prayed for by Plaintiff.

Id. The language in Boney is substantially similar to the language in appellees’

motion in this case.

Appellees, however, contend that their motion was sufficiently specific to

support summary judgment. In particular, they argue that their asserted grounds
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are dispersed throughout the motion and that, in addition to the quoted portion

above from paragraph one of their motion, they sought summary judgment based

on the additional grounds contained in paragraphs two through four below:

2. That on June 27, 2012, Defendant[] . . . Adriene Sibley . . . was
served with Request for Admissions in this action by Plaintiffs, and
the Defendant[] Adriene Sibley . . . failed to serve answers or
objections to the said Requests within the time designated therein or
within any longer period of time ordered by the Court.

3. That on October 4, 2013, Defendant, Joel Ross, was served with
Request for Admissions in this action by Plaintiffs, and the Defendant,
Joel Ross, served answers or objections to the said Requests within
the time designated therein.

4. That on January 27, 2014, this Court heard Plaintiff’s Motion to
Compel Responses to Plaintiff’s First Request for Admissions, First
Set of Interrogatories, and First Request for Production, and this Court
entered an order compelling the Defendant, Joel Ross, to appear
before this Court on or before February 10, 2014, and report that the
order had been complied with in total or show cause why he should
not be held in contempt. The Defendant, Joes Ross, has failed to
report to this court and has failed to amend his responses to discovery
requests.

Appellees’ argument is unavailing. None of these paragraphs specify a

ground for summary judgment; rather they merely allege that Sibley and Ross

failed to answer appellees’ requests for admission and other discovery requests.

Further, paragraphs three and four pertain only to Ross and make no mention of

Sibley. The only ground asserted in appellees’ motion—that any defense set forth

in Sibley’s answer was insufficient as a matter of law—is insufficient to support

summary judgment. See Boney, 557 S.W.2d at 378. Because appellees’ motion
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did not comport with Rule 166a(c), the trial court erred in granting summary

judgment in favor of appellees. We sustain Sibley’s second issue. 2

Conclusion

We reverse and remand the trial court’s judgment for proceedings consistent

with this opinion.

Russell Lloyd
Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

2
In light of our disposition, we do not reach Sibley’s remaining issues. See TEX. R.
APP. P. 47.1.
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