DISSENTING OPINION ON MOTION FOR REHEARING
KILGARLIN, Justice,dissenting.
I concur with the dissent of Justice Gonzalez but would offer an additional reason why the judgment of the court of appeals should be affirmed.
Boswell, O’Toole, Davis & Pickering filed its petition in intervention for attorney’s fees in the divorce action between Theresa Van Dyke and Gene Van Dyke on May 9, 1980. It was not until September 25, 1980 that an instrument styled “Answer of Theresa Van Dyke to Plea in Intervention of Boswell, O’Toole, Davis & Pickering” was filed. Trial was already scheduled for September 30, 1980, at the time of the filing of the answer. On the day of trial, Boswell, O’Toole filed a motion to strike the answer, in which they alleged that they had not learned until the previous day that the answer had been filed. In the motion to strike, the firm alleged that the answer was a complete surprise; that it was filed without prior leave of court, and within seven days of the date of trial, all in violation of Tex.R.Civ.P. 63. With a jury panel awaiting voir dire examination, the trial court considered the motion to strike and then severed out paragraph IV of the answer for trial at a later date.
The record fails to reveal that the trial court ever granted leave for the filing of Theresa Van Dyke’s answer. The motion to strike should have been granted by the trial court because of the late filing and showing of surprise.
After the jury trial with its verdict favorable to Boswell, O’Toole, the trial judge granted their motion for summary judgment. Our court now concludes that it was error for the trial judge to grant the summary judgment on a res judicata theory. While I disagree with the court as to this holding, a summary judgment was nevertheless proper even if it was granted on an erroneous ground if it “may properly be upheld on an alternative ground expressly presented to the trial court ...” Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668 (Tex.1984). Because Boswell, O’Toole’s motion to strike was an alternative ground that would properly be upheld, the subsequent granting of the summary judgment should be affirmed irrespective of the stated basis on which that judgment was granted.
Moreover, Mrs. Van Dyke had her day in court on her defensive theory of legal malpractice. During the trial to the jury on the issue of attorney’s fees, the record is replete with instances where Mrs. Van Dyke’s attorney injected legal malpractice into the case in an effort to defeat the claim for attorney’s fees. The jury chose not to accept her theory.
Final judgment in behalf of Boswell, O’Toole was proper.
McGEE, J., joins in this dissenting opinion.