concurring.
I concur but with some reluctance.
Here the trial court rendered a take-nothing summary judgment on six causes of action even though the motion addressed only one. Plaintiff properly attacks that action in this court. In these circumstances, the sensible course of action for appellate courts is to review the propriety of the ruling on the one cause of action properly addressed in the motion and remand as to the others.
The supreme court cases on this issue seem to me a little ambiguous about the proper approach because the court’s judgments have not always corresponded precisely to its language. In Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563 (Tex.1983), the court said it was improper for the court of appeals to affirm os to the unaddressed causes of action. Id. at 564. But the court did not discuss the merits of the properly addressed cause of action; it reversed and remanded the entire case to the trial court. In Teer v. Duddles-ten, 664 S.W.2d 702 (Tex.1984), the summary judgment adjudicated the rights of a defendant, the City of Bellaire, which was not even mentioned in the summary judgment motion. The court reversed the entire cause (involving all parties) and remanded “for a trial of the action against City of Bellaire." Id. at 705. But the court earlier said the correct approach in such cases is to “remand for a trial of the untried [i.e. unaddressed] issue.” Id. at 704. That language seems to say that an appellate court should review the issues that were properly joined and litigated, but remand for trial of the other issues.
The whole problem can be avoided at the trial level by ensuring that the relief granted does not exceed the relief requested. If partial relief is requested and granted, either party may ask for a severance to make that action final and appealable. But when the trial court grants a final summary judgment even though the motion requested only partial relief, the question on appeal is whether to decide the correctness of the partial relief that was requested and granted (remanding the remainder of the case), or whether to send the entire case back without any appellate decision at all. Since the latter approach corresponds with the supreme court’s actions, though not its language, I concur.