law-waiver-of-issues-for-appeal | preservation of error | waiver by failure to submit to the jury | summary
judgment issues must be expressly presented to the trial court |
“Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal."
Tex. R. Civ. P. 166a(c).
For the first time on appeal, Sandhu argues he never actually received the $131,000. The non-movant must
expressly present to the trial court, by written answer or response, any issues defeating the movant's
entitlement to summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979); Tello v. Bank One, N.A., 218 S.W.3d 109, 118 (Tex. App.- Houston [14th Dist.] 2007, no pet.).
In his fourth issue, Sandhu contends he pleaded and raised a fact issue on each element of the affirmative
defenses of failure of consideration, fraud, and estoppel. However, Sandhu did not raise failure of
consideration or estoppel in either his response or supplemental response to the motion for partial summary
judgment. A non-movant is required to expressly present to the trial court any issues defeating the movant's
entitlement to summary judgment. Tello, 218 S.W.3d at 118. Issues are "expressly" presented in accordance
with Rule 166a(c) when the written answer or response to the motion for summary judgment fairly apprises the
movant and the trial court of the issues the non-movant contends should defeat the motion. Id. at 119. In
determining which issues were expressly presented to the trial court, a reviewing court may not rely on the
appellate briefs or the summary-judgment evidence.[5] Dubose v. Worker's Med., P.A., 117 S.W.3d 916, 920
(Tex. App.- Houston [14th Dist.] 2003, no pet.). Any issues not expressly presented to the trial court in a
written response shall not be considered as grounds for reversal. Id. Therefore, Sandhu has waived these
issues on appeal. Id.
Sandhu v. Pinglia Investments of Texas, LLC (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Seymore)
(commercial real estate transaction: financing of purchase of shopping center, breach of promissory note,
summary judgment procedure, sufficiency of response to PMSJ, affirmative defenses not properly asserted in
response to Plaintiff's motion, proof of balance due and damages in note suit, challenges to summary judgment
evidence, affidavit conclusory)
Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Charles Seymore
Panel members: Chief Justice Hedges, Justices Anderson and Seymore
14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia
Appeal from 164th District Court of Harris County