dissenting.
Despite the discursive plurality opinion, the actual holding in this case is a narrow one. It is that the grounds for a motion for summary judgment must be set out in the motion itself and cannot be supplied by an accompanying brief on which the motion is expressly based. Because the motion in this case does not comport with this rule, the Court reverses the judgment for the movant, even though any error in granting the motion is made entirely harmless by the non-movant’s concession that he was fully apprised of the grounds on which it was based. I disagree with the Court’s rule; it is a rigid formality incongruent with the more basic principle it is meant to effectuate, which is, that the grounds for a summary judgment motion should be clear to the non-movant and the trial court. The Court’s rule is concerned only with where the grounds for summary judgment are stated, and not with whether they are stated clearly. I also disagree that a violation of the rule requires reversal even when it has caused no prejudice. Finally, I do not join in the plurality opinion’s extensive discussions of various other subjects, all obi-ter dicta, which are in some respects wrong and in all respects completely unnecessary to a decision of the dispute before us.
Defendants filed a motion for summary judgment stating as its only grounds “that there are no genuiné issues as to any material facts and that these Defendants are entitled to judgment dismissing Plaintiffs amended complaint as a matter of law.” The motion also recited, however, that it was based on a supporting brief. That brief accompanied the motion (plaintiff does not contradict defendants’ assertion that the two instruments were actually attached to each other), was 12 pages long, and clearly set out the grounds for granting summary judgment. Plaintiff concedes that he understood the basis for defendants’ motion but made a tactical choice not to respond to it on the merits. Instead, plaintiff excepted to the motion because it did not itself, apart from the accompanying brief, state the grounds for summary judg*345ment. Plaintiffs sole contention in this Court is that it was reversible error for the trial court to grant defendants’ motion in the face of his exception.
Plaintiffs exception to defendants’ motion for summary judgment is based upon the first sentence of Rule 166a(c), Tex. R.Civ.P., which provides simply: “The motion for summary judgment shall state the specific grounds therefor.” In Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex.1978), we stated: “The purpose of this requirement is to provide the opposing party with adequate information for opposing the motion, and to define the issues for the purpose of summary judgment.” There is no question that the purpose of Rule 166a(c) was fully served in this case by the brief accompanying defendants’ motion. Plaintiff concedes as much. Nevertheless, the Court holds that the summary judgment must be reversed because defendants did not comply with the rule.
The plurality opinion reasons that Rule 166a(c) “plainly” requires that the grounds for a motion for summary judgment must actually be set out in the motion itself. The alternative, according to the plurality opinion, would be to permit the grounds to be stated anywhere in the summary judgment record. This procedure would fail to provide a cogent statement of the issues in a particular place and thus would defeat the purpose of the rule. Since this procedure is unacceptable, the plurality opinion concludes that its reading of the rule must be correct.
The fallacy in the plurality opinion’s reasoning lies in its misapplication of the law of the excluded middle. It is just not true that the only alternatives are either to require that the grounds for summary judgment be recited in the motion, or to permit them to be raised anywhere in the record. There is a middle position more flexible than the Court’s rule and still fully consistent with the underlying purpose: the motion may state the grounds for summary judgment by reference to other documents as long as the opposing party is provided with adequate information to oppose the motion, and the summary judgment issues are defined. That is precisely what happened in this case. Defendants’ motion expressly stated that it was based upon a supporting brief, which accompanied the motion. From the motion and brief, plaintiff knew exactly what defendants’ contentions were. Both the rule and its purpose were thus fully satisfied. The motion stated “the specific grounds therefor” by reference to the accompanying brief, giving plaintiff full notice of defendants’ contentions and defining the issues for resolution.
This is not a less than literal reading of the rule. As long as the purpose of the rule is met, its precise language does not preclude specification of the grounds for summary judgment in documents accompanying or referenced in the motion. We have never suggested that the rule is as restrictive as the Court views it. In Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam), we wrote: “It is axiomatic that one may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding." (Emphasis added.) In Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990), we reiterated: “A summary judgment movant may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding.” (Emphasis added.) In both instances we insisted that the issues determined by summary judgment must actually be raised, but only in the proceeding. In neither case did we suggest that those issues must always be recited in the motion.
No reported Texas case addresses the specific issue before us. Most of the cases cited by the plurality opinion stand only for the general proposition that the grounds for summary judgment must be stated and do not specify where or how. One court of appeals has held that issues in opposition to a motion for summary judgment may be raised in a brief incorporated in the non-movant’s response. In Resolution Trust Corp. v. Ammons, 836 S.W.2d 705, 708-709 (Tex.App.-Houston [1st Dist.1992, no writ), the court explained:
*346The RTC filed a response to Ammons’ motion for summary judgment and incorporated a memorandum of law in support of its response that was served on all parties and the trial court contemporaneously with its response. It is undisputed that the RTC’s motion in response and memorandum of law in support of the response were in ‘writing’ and ‘before’ the trial court at the summary judgment hearing. Moreover, the motion itself, by its language, expressly incorporated the memorandum of law. We find the RTC’s motion in response and supporting memorandum of law constitutes the type of ‘written motion, answer or other response’ contemplated by rule 166a(e). See S. McConnell v. Southside Indep. School Dist., 814 S.W.2d 247, 248 (Tex.App.-Austin 1991, writ granted) (Rule 166a allows a summary judgment mov-ant to set out the specific grounds for summary judgment in a brief served on all parties contemporaneously with the motion itself); see also Tex.R.Civ.P. 1 (rules are to be given liberal construction).
Other courts have uniformly refused to consider grounds for summary judgment raised only in a brief not accompanying the motion. Shade v. City of Dallas, 819 S.W.2d 578, 588 (Tex.App.-Dallas 1991, no writ) (the “motion does not incorporate the brief, and the trial court’s judgment does not state that the brief was considered”); Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d 141, 144-146 (Tex.App.- San Antonio 1991, writ denied) (arguments not raised in motion were made “later in a brief”); Avinger v. Campbell, 499 S.W.2d 698, 702 (Tex.Civ.App.-Dallas 1973) (grounds cannot be raised for the first time in appellate briefs), writ ref'd n.r.e., 505 S.W.2d 788 (Tex.1974) (per curiam). The holding in each of these cases, as distinct from desultory language in some of the opinions, is correct. Raising issues in a brief which is filed separately and not referenced in the summary judgment motion or response may not comply with Rule 166a(c). Still, no Texas court has ever held that the grounds for or against a summary judgment cannot be stated in a brief accompanying the motion or response.
The plurality opinion argues that its rule promotes clarity and simplicity in summary judgment practice. Actually, however, a rigid rule requiring recitation of the grounds for summary judgment in the motion itself does not make for clearer, simpler motions; to the contrary, such a rule simply encourages prudent counsel to incorporate any supporting briefing and affidavits in the body of the motion when it is possible to do so. As defendants’ counsel in this case observed in oral argument: “Had I served this motion and left off the title of the third page which begins, “Brief in Support”, the entire document would have been deemed a motion, and I wouldn’t be here today.” Under the Court’s rule, counsel is correct. But merely deleting the caption on defendants’ brief so that its text is inside the motion itself instead of attached to it does not make the issues in this case clearer or simpler. No such purely formal requirement can serve the purpose of clarifying the issues. In this case, the Court’s clearer, simpler rule requires a remand so that the parties and lower courts can all reconsider the very same issues they have already considered. The needless delay and expense in this case will be multiplied in others.
The Court’s objectives of clarity and simplicity are not achieved by its rule. A 1-page motion which does not state the grounds for summary judgment, attached to a 99-page brief which does, is not made clearer or simpler merely by combining the two documents into a single 100-page motion which states the grounds for summary judgment amid supporting arguments. Yet the 100-page motion in this example complies with the Court’s rule while the 1-page motion does not. This sort of nonsense results when the application of a rule becomes divorced from its purpose. What is essential for summary judgment, as we explained in Westchester, is that the issues be set out with sufficient specificity to assure that they are fairly addressed by the parties and trial court. How that is achieved, while not totally immaterial, should certainly be of far less importance *347than whether it is achieved. A motion which does not serve the purpose of the rule should not be preferred to a motion and brief which, together, do.
Rules of procedure are not written to define a perverse game of legal hopscotch to test the adroitness of lawyers; they are devised to provide a logical) predictable, simple, sensible structure for achieving justice. When rules are divorced from the basic principles they effectuate, the resulting structure is deformed and arbitrary, and its purpose — achieving justice — is thwarted. A rule that does not simply restate the basic principle on which it is based, but instead prescribes a guideline which tends to further that principle, must be applied consistent with its principle. Rule 166a, for example, does not restate its purpose (fair notice and definition of issues), but prescribes a guideline (motion shall state grounds). The words of the rule are defined by its purpose. A motion which does not provide fair notice of the issues raised is not proper simply because somewhere in its ramblings the grounds are stated; a motion which does define the issues is not improper simply because the grounds are stated in an attachment. The plain language of the rule itself cannot be disregarded, but it does not supplant the purpose and cannot properly be construed to reach a result incongruent with that purpose.
There are many other examples of such rules. The “in anticipation of litigation” standard of Rule 166b is not a basic legal principle but an abbreviation to describe the balance struck among the conflicting purposes of privilege and discovery. The standard is intended to achieve in application the balance desired in the abstract. If the standard is applied without regard to its purpose, it may mean anything from the remotest speculation that litigation may be an eventuality to service of summons. Application of the standard is defined not by the dictionary meaning of its words but by its underlying purposes. See National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex.1993). Likewise, the rules governing preservation of error in the jury charge are meant to assure that a party’s position is fully communicated to the trial court and ruled upon. Application of those rules apart from their purpose leads to an endless development of arcane distinctions. See State v. Payne, 838 S.W.2d 235 (Tex.1992). There are many other similar examples. All such rules can be applied under the rubric of literal construction to defeat their own purposes unless those purposes govern and define the rules. The underlying principles must control.
I do not doubt that the Court’s decision today is motivated by the very legitimate desire to clarify summary judgment procedure with a bright-line rule. I do not believe, however, that that desire is fulfilled. Rule 166a should be applied to serve its purpose; it should not be an end in itself.
At least as troubling as the rule the Court adopts is its conclusion that the judgment in this case must be reversed. Rule 184(b), Tex.R.App.P., states:
No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the Supreme Court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the petitioner from making a proper presentation of his case to the appellate courts....
The plurality opinion does not apply or mention this rule. Even if it be conceded that the trial court erred, reversal is not proper except under Rule 184. Petitioner does not argue that the trial court’s alleged error “amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment”. Nor does petitioner argue that the trial court’s action “probably prevented the petitioner from making a proper presentation of his case to the appellate courts”. The Court does not explain why reversal is necessary in these circumstances. The only logical alternatives are that the trial court *348committed fundamental error, or that Rule 184 does not apply to this case. Both alternatives are clearly wrong.
In very similar circumstances, the court in McCloud v. Knapp, 507 S.W.2d 644 (Tex.Civ.App.-Dallas 1974, no writ), refused to reverse the judgment. In that case, as in this one, the trial court granted a motion for summary judgment which did not state specific grounds, although the grounds were stated in a supporting brief. The court reasoned:
Appellee cannot say that she was misled or misinformed concerning appellee’s position; her only complaint is that there was technical noncompliance with the Rule.
We do not wish to be understood as holding that strict compliance with Rule 166-A is unnecessary, but it is our holding that in this particular factual situation it appears that no harm or prejudice was suffered by appellant and that she presents no proper ground for reversal. Rule 434. [Tex.R.Civ.P. 434, now Tex. R.App.P. 81(b)(1), counterpart to Tex. R.App.P, 184.]
Id. at 645. The Court should adopt the same reasoning in this case.
Finally, most of the plurality opinion is a discourse on summary judgment procedure unnecessary to a decision in this case. There has not been one word of argument in this Court or in the court of appeals concerning whether the grounds for summary judgment may be statéd in the evidence, yet the plurality opinion undertakes not only to resolve this issue but to disapprove the three other cases which mention it. Two of those cases did hold that the grounds for summary judgment may be found in the evidence in at least some circumstances. City of Asherton v. Trigo, 714 S.W.2d 90, 92 (Tex.App.-San Antonio 1986, no writ) (grounds for motion may be found in affidavit even though not stated in the motion); Sparks v. Cameron Employees Credit Union, 678 S.W.2d 600, 602 (Tex.App.-Houston [14th Dist.] 1984, no writ) (grounds readily apparent from the evidence in suit on a note). In the other case, however, the issue appears, as in this case, only in dicta. Albritton v. Henry S. Miller Co., 608 S.W.2d 693, 695 (Tex.Civ.App.-Dallas 1980, writ ref’d n.r.e.) (non-movant’s complaint was not that motion failed to state grounds, but that it should have stated each element of the movant’s cause of action). The plurality opinion also addresses when issues may be raised by the summary judgment evidence offered in response to a motion, another matter not involved in this case.
The plurality opinion indicates the level of specificity required of motions for summary judgment by disapproving Bado Equip. Co. v. Ryder Truck Lines, Inc., 612 S.W.2d 81 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.). There the court held that summary judgment was properly granted in a sworn account suit on a motion which stated only that defendant’s answer was “insufficient in law to constitute a defense” and did not refer specifically to Tex.R.Civ.P. 185. Id. at 82. Whether Bado was correctly decided has nothing to do with the issues in the case before us.
The plurality opinion also decides what it euphemistically refers to as a “corollary question”: in what circumstances must a non-movant except to a summary judgment motion which does not state grounds in order to preserve error. The plurality opinion suggests, among other things, that if the motion states no grounds at all, no exception is required. That is directly contrary to our decision in Westchester. There we wrote:
The question in this case is whether the specificity requirement in Texas Rules of Civil Procedure 166-A(c) is waived by failure to except to the motion for summary judgment prior to rendition of judgment. ...
Rule 166-A(c) states that “the motion for summary judgment shall state the specific grounds therefor.” The purpose of this requirement is to provide the opposing party with adequate information for opposing the motion, and to define the issues for the purpose of summary judgment. In this respect, the specificity requirement in Rule 166-A(c) parallels the *349pleading requirements of Rule 45(b) and Rule 47(a) [Tex.R.Civ.P.]. Although Rule 90 [Tex.R.Civ.P.] does not specifically refer to summary judgment pleadings, the same considerations apply. Just as defects in pleadings are waived unless specifically pointed out by motion or exception in writing before the charge to the jury or rendition of judgment, we hold that the failure of a motion for summary judgment to specify grounds is a defect of form that is waived unless excepted to prior to rendition of judgment.
576 S.W.2d at 772-773. The plurality opinion states that this holding in Westchester was “effectively” overruled in City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). By use of the word “effectively”, the plurality opinion avoids pointing out that Clear Creek did not actually say it was overruling Westchester. In fact, Clear Creek does not even cite Westchester. The plurality opinion’s reliance on a part of a sentence from Clear Creek is very misleading. What Clear Creek says is a non-movant may assert that a motion for summary judgment lacks legal substance without filing a response. Clear Creek does not suggest that a procedural deficiency, such as the failure to state grounds in the motion itself, can be asserted without some objection in the trial court. The relevant passage from Clear Creek makes this clear:
We are not to be understood, however, as shifting the burden of proof that exists in summary judgment proceedings. The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Summary judgments must stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant s right.
While it would be prudent and helpful to the trial court for the non-movant always to file an answer or response, the non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment. The non-mov-ant, however, may not raise any other issues as grounds for reversal. Under the new rule, the non-movant may not urge on appeal as reason for reversal of the summary judgment any and every new ground that he can think of, nor can he resurrect grounds that he abandoned at the hearing.
Id. at 678 (footnote omitted) (emphasis added). A fair reading of this passage does not support the plurality opinion’s position that Westchester was silently overruled and its rule abandoned. Nor should West-chester be overruled. A rule requiring the non-movant to object to procedural deficiencies in the trial court operates to assure a decision on the merits in the trial court, thereby minimizing unnecessary appeals.
However, the propriety of the Westches-ter rule is outside the proper scope of the issues in this case. The plurality opinion’s discussion of these and other “corollary” questions comprises the bulk of its opinion. Some of it is wrong — such as the treatment of Westchester — most of it is ill-advised, and all of it is dicta entitled to no regard.
* * * * * *
For the reasons I have explained, I would affirm the judgment of the court of appeals. I therefore respectfully dissent.
CORNYN, J., joins in this dissenting opinion.