IN THE
TENTH COURT OF APPEALS
No. 10-04-00268-CV
Wells Fargo Bank, N.A.,
Appellant
v.
Citizens Bank of Texas, N.A.,
Appellee
From the 9th District Court
Montgomery County, Texas
Trial Court No. 02-04-02426 CV
ORDER
Appellant’s motion for rehearing is denied. The opinion and judgment dated September 7, 2005 are withdrawn, and the opinion and judgment of even date herewith are substituted therefor.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Order issued and filed November 23, 2005
[CV06]
one point of error, to-wit, that the trial court erred in granting the motion for summary judgment because (he asserts) there existed genuine issues of fact and therefore Whitworth was not entitled to judgment as a matter of law. In view of Rule 166A, Texas Rules of Civil Procedure, as it is now constituted, we disagree with Appellant and affirm the trial court's judgment.
We have carefully examined Plaintiff-Appellant's summary judgment proof, and do not find any summary judgment evidence which would rebut movant Whitworth's summary judgment proof of impossibility of performance, so as to set up a fact issue.
Plaintiff-Appellant Fieseler as non-movant had a duty to come forward with summary judgment proof to rebut (movant) Defendant-Appellee Whitworth's summary judgment proof of impossibility of performance in order to raise a fact issue. This he did not do. Rule 166A, Texas Rules of Civil Procedure; City of Houston v. Clear Creek Basin Authority (Tex. 1979) 589 S.W.2d 671. Pleadings do not constitute summary judgment proof. Hidalgo v. Sur. Savings and Loan Assn (Tex. 1971) 462 S.W.2d 540.
With the exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, the non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement, and he must present summary judgment proof when necessary to establish a fact issue. City of Houston v. Clear Creek Basin Authority, supra, at page 678. Moreover, Rule 166A as it now exists precludes from consideration on appeal grounds not raised in the trial court in opposition to a summary judgment motion. Also see Westland Oil Development Corporation v. Gulf Oil Corporation (Tex. 1982) 637 S.W.2d 903; O'Shea v. Coronado Transmission Co. (Corpus Christi CA 1983) 656 S.W.2d 557, NRE; Kehoe v. Lambert (Houston 14th CA 1982) 633 S.W.2d 576, NRE.
For the reasons herein stated, judgment of the trial court is affirmed.
AFFIRMED
JOHN A. JAMES, JR.
DO NOT PUBLISHJustice (Retired)
[Participating: Chief Justice Thomas, Justices Hall and Means and Justice James (Retired)]