IN THE
TENTH COURT OF APPEALS
No. 10-99-302-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
v.
RONALD K. ACKERMAN,
Appellee
From the County Criminal Court No. 2
Dallas County, Texas
Trial Court # CC98-01806-D
DISSENTING OPINION
The majority holds that Ronald K. Ackerman failed to state any ground in his motion for summary judgment which would entitle him to judgment. They conclude that “his motion is insufficient to sustain the judgment rendered by the trial court, and the judgment must be reversed.” What’s a person gotta’ do to get a summary judgment these days?
In Ackerman’s motion for summary judgment he states: “The only issue remaining in this case is the applicability of Section 411.180(d), Texas Government Code, for costs and attorney fees.” He then prays for a recovery of fees and expenses. That section of the Government Code states: “A proceeding under this section is subject to Chapter 105, Civil Practice and Remedies Code, relating to fees, expenses, and attorney’s fees.” Chapter 105 of the Civil Practice and Remedies Code is entitled “Frivolous Claim by State Agency.” This chapter consists of only four sections and provides for only one type of recovery: fees, expenses and attorney’s fees for a frivolous claim by a State agency.
Where the majority errs in their analysis is a potential problem with Ackerman’s underlying petition. As the majority notes, Chapter 105 of the Civil Practice and Remedies Code specifies that a claimant may recover “fees, expenses, and attorney’s fees” if the state agency asserted a claim that was “frivolous, unreasonable, or without foundation.” They note that Ackerman did not allege in his “motion” any of these criteria. This may be a problem with Ackerman’s underlying pleading, but it is not a defect in his motion for summary judgment as the majority holds.
Ackerman told the reader of his motion for summary judgment exactly the ground under which he was seeking summary judgment for fees, expenses and attorney’s fees; Section 411.180(d) of the Government Code. The reader may have to go read the statute, but this is no different than the movant stating that the ground upon which they rely as “Chapter 101 of the Texas Tort Claims Act,” or a reference to any one of the myriad of statutes that provide for some specific relief or defense.
We should avoid imposing any magic language requirement to state a ground of recovery in a summary judgment motion. If the motion provides a reader reasonable notice of the ground upon which summary judgment is sought, that should be adequate. The ground of recovery is sufficiently stated in Ackerman’s summary judgment motion.
For the reasons stated, I respectfully dissent from the majority’s remand of this cause on the basis indicated. I concur in the remainder of the opinion.
TOM GRAY
Justice
Dissenting opinion delivered and filed October 4, 2000
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