COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-328-CV
CURTIS R. FRANCIS APPELLANT
V.
DANNY HORTON APPELLEES
AND DEBORAH FORD
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Curtis R. Francis appeals the trial court’s order granting the
summary judgment motion of appellees Danny Horton and Deborah Ford. In
1
… See Tex. R. App. P. 47.4.
two related issues,2 appellant asserts that the trial court erred by granting
appellees’ motion because the motion did not relate to the legal theories he had
pled at the time it was filed. We reverse and remand.
Background Facts
This is the third appeal of this case to our court. See Francis v.
TDCJ-CID, No. 02-06-00352-CV, 2007 WL 2460270, at *1 (Tex. App.—Fort
Worth Aug. 31, 2007, no pet.) (mem. op.); Francis v. TDCJ-CID, 188 S.W.3d
799, 800 (Tex. App.—Fort Worth 2006, no pet.). Because the procedural
history of this case is well detailed by our previous opinions, we will only briefly
summarize the facts relevant to disposition of the issues in this appeal.
In October 2004, appellant, an inmate, filed a pro se petition against
appellees and the Texas Department of Criminal Justice-Correctional Institutions
Division (TDCJ-CID) alleging common law torts and violations of the Texas
constitution and seeking relief through the Texas Tort Claims Act (TTCA). 3 See
Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109 (Vernon 2005 & Supp.
2008). The three defendants filed motions to dismiss under chapter fourteen
2
… Appellant contends that summary judgment was improper and that the
trial court abused its discretion by denying his motion for new trial, which also
concerned the propriety of the summary judgment.
3
… The claims brought through the TTCA in appellant’s original petition
concerned the conditions of his confinement, which he alleged were unsanitary.
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of the civil practice and remedies code. See id. §§ 14.001–.014 (Vernon
2002). The trial court dismissed all of appellant’s claims. On appeal, we
reversed the trial court’s dismissal order to the extent that it related to claims
based on a September 27, 2004 prison grievance decision.4 Francis, 188
S.W.3d at 805.
After remand, the three defendants filed separate motions for summary
judgment. However, the motions did not address appellant’s claims then
pending under the Texas constitution. The trial court granted all three motions,
and appellant again appealed. We affirmed the trial court’s grant of summary
judgment to TDCJ-CID in all respects, and we also affirmed the trial court’s
grant of summary judgment to appellees on appellant’s federal civil rights
claims, but we reversed the summary judgments in appellees’ favor as they
related to claims under the Texas constitution. Francis, 2007 WL 2460270,
at *3–6.
Following the second remand, in September 2007, appellant amended his
petition to add a negligence claim related to his alleged denial of access to court
and to clarify that he sought only injunctive and declaratory relief on his claims
under the Texas constitution. After filing other various documents, appellant
4
… That grievance decision related to an alleged denial of access to books
from a law library.
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filed a second amended petition in January 2008. That petition reasserted
claims against TDCJ-CID 5 and maintained claims against appellees. However,
while the petition continued to focus on appellant’s alleged denial of access to
court (through deprivation of law books), it abandoned the theories previously
asserted under the Texas constitution and common law negligence. Instead,
it focused solely on claims of personal injuries caused by appellees’ alleged
misuse of tangible personal property (the law books and a law book request
form), which appellant claimed waived immunity under the TTCA. 6 See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(2).
In March 2008, appellees filed another motion for summary judgment.
However, the motion addressed only appellant’s prior claims under the Texas
5
… Nothing in the record indicates that appellant served TDCJ-CID with
citation following his reassertion of claims against it after we affirmed summary
judgment in its favor on all grounds. See Scoggins v. Best Indus. Unif. Supply
Co., 899 S.W.2d 276, 278 (Tex. App.—Houston [14th Dist.] 1995, no writ);
Evans v. Hoag, 711 S.W.2d 744, 746 (Tex. App.—Houston [14th Dist.] 1986,
writ ref’d n.r.e.) (concluding that to be brought back into a suit after dismissal,
a party must be served again with citation).
6
… Appellant certified that he mailed the second amended petition to the
correct address of the assistant attorney general who represented appellees at
that time. While appellees’ new attorney (who first appeared in February 2008
after appellant filed the second amended petition) claims that she never
received the petition, appellant’s certification is “prima facie evidence of the
fact of service.” Tex. R. Civ. P. 21a; see Mathis v. Lockwood, 166 S.W.3d
743, 745 (Tex. 2005).
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constitution; it did not address his newly pled claims.7 In May 2008, the trial
court granted appellees’ summary judgment motion and dismissed all claims
against appellees with prejudice. 8 After filing a motion for new trial, appellant
timely filed his notice of this appeal.
The Summary Judgment Was Improper
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004); see Tex. R. Civ. P. 166a(b), (c).
A trial court cannot grant summary judgment on grounds not presented
in the summary judgment motion; when the court does so, remand is proper.
See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002);
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997); Francis,
2007 WL 2460270, at *2. When a plaintiff amends its petition to assert new
legal theories, the defendant’s motion for summary judgment must correspond
7
… Specifically, the motion stated that the “issue for consideration” was
whether appellant could “maintain an action against [appellees] under . . . the
Texas Constitution.”
8
… Although appellant sued TDCJ-CID in his second amended petition and
although the summary judgment concerned only appellees, the summary
judgment is still a final, appealable order because nothing in the record indicates
appellant’s intention to obtain new service of citation on TDCJ-CID. See M.O.
Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004).
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to those new claims. See Johnson v. Fuselier, 83 S.W.3d 892, 898 (Tex.
App.—Texarkana 2002, no pet.); Jones v. Ray Ins. Agency, 59 S.W.3d 739,
749 (Tex. App.—Corpus Christi 2001), (indicating that the movant must tailor
”the motion to negate the newly pled theories”), pet. denied, 92 S.W.3d 530
(Tex. 2002).
Appellees’ summary judgment motion solely concerned claims under the
Texas constitution; these claims had been abandoned by appellant at the time
the motion was filed. 9 The trial court therefore erred by granting summary
judgment on appellant’s sole remaining personal injury claim brought through
the alleged waiver of immunity by the TTCA. See Johnson, 73 S.W.3d at 204;
Jones, 59 S.W.3d at 749. Thus, we sustain appellant’s first issue challenging
the propriety of the trial court’s grant of summary judgment, and we therefore
necessarily sustain appellant’s second issue concerning the trial court’s denial
of his motion for new trial.
9
… Appellees’ brief also concerns only the propriety of summary judgment
under appellant’s previously asserted Texas constitutional claims.
6
Conclusion
Having sustained appellant’s issues, we reverse the trial court’s summary
judgment in favor of appellees, and we remand appellant’s remaining claim for
further proceedings.
PER CURIAM
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DELIVERED: March 5, 2009
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