Chessher v. Southwestern Bell Telephone Co.

ON MOTION FOR REHEARING

We did not intend to give the impression in our original opinion that the nonmovant in a summary judgment proceeding has any burden to defeat the right of the movant to summary judgment if the movant has not shown he is entitled to judgment as a matter of law. To the extent that any portion of our opinion of June 9, 1983 creates such an implication, we retract it. It is clear that regardless of what a nonmovant may have contended or failed to present at the trial court level, he may for the first time on appeal argue that the grounds contained in the motion were insufficient as a matter of law to support summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). However, no other grounds for reversal may be urged for the first time on appeal. Id.

Points of error two, three and four involved just such new grounds not addressed in Appellant’s response to Appel-lee’s motion for summary judgment. For example, Appellant’s discussion of the “terminable at will rule” in his response was limited to a denial that his employment contract was subject to an at-will termination by Appellee. Now he urges on appeal *904that the court applied the rule inappropriately in his case, and that any application of the doctrine is contrary to public policy. We reiterate that he is not entitled to raise new issues on appeal, save an allegation that Appellee was not entitled to summary judgment as a matter of law.

Although Appellant contends his deposition on file with the trial court conclusively establishes the existence of a written contract, the deposition has not been made a part of the appellate record. Appellant has failed to meet his burden of showing harmful error and we must, therefore, assume the omitted deposition supports the summary judgment. Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex.1982); DeBell v. Texas General Realty, Inc., 609 S.W.2d 892, 893 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ).

In short, Appellant is foreclosed from having access to the appellate process not because this court is reluctant to address the merits of his appeal, but because he has not taken critical procedural steps to insure that we may do so.

Motion for rehearing overruled.