SOUTHEAST TEXAS RECORD

Beacon Maritime may have won a summary judgment involving hurricane damage in Sabine Pass, but Beaumont appeals justices said the company will be going back to court because it failed to sumbit proper legal documents.

The opinion written April 23 by Justice David Gaultney for Chief Justice Steve McKeithen and Justice Charles Kreger reversed and remanded in part and affirmed in part Kelli Sartin's appeal from a summary judgment in Jefferson County.

Shortly after Hurricane Rita in 2005, Sartin filed the claim in Jefferson County Court at Law No. 1 against Beacon Maritime, alleging the company negligently caused damages to her property.

Sartin contended that during the storm, her Sabine Pass property was damaged when a trailer leased to Beacon drifted onto it and struck a partially-built structure.

On June 15, 2007, Beacon filed a motion for summary judgment asserting both traditional and no-evidence grounds.

Judge Alfred Gerson granted it two days later, dismissing Sartin's claims against Beacon with prejudice.

About a month later Sartin filed a second amended petition, in which she alleged previously unasserted causes of action, including trespass related to efforts to remove the trailer.

According to court papers, Beacon filed a pleading titled "Reply to Plaintiff's Joint Response to All Defendants' Traditional and No Evidence Motions for Summary Judgment," on July 13, 2007.

In the reply, Beacon addressed Sartin's newly-added trespass claim and requested summary judgment and dismissal of "all the claims alleged by Plaintiff against Defendant." Beacon attached additional summary judgment evidence to its reply.

However Sartin then filed a motion for new trial on the trespass claim because Beacon did not seek "leave of court" to amend its motion for summary judgment to reflect the new evidence, but filed only a reply to Sartin's claims.

She also claimed she was not provided adequate notice under Rule 166a of the Texas Rules of Civil Procedure.

The rule states that "the motion for summary judgment shall state the specific grounds," and that "except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least 21 days before the time specified for hearing."

Sartin argued the trial court erred when it granted the summary judgment.

But Gerson denied Sartin's motion for a new trial, and she filed an appeal on April 3, 2008.

A year later, the Ninth Court of Appeals of Texas issued a memorandum opinion reversing the trial court's judgment as to the trespass claim.

"Defendant addressed the trespass cause of action only in a reply, not in a motion," Gaultney wrote. "A 'reply is not a motion' for summary judgment. A trial court cannot grant summary judgment on a cause of action addressed only in movant's reply brief, which in this case was filed the Friday afternoon before the Monday hearing."

Gaultney wrote that the Texas Supreme Court has held that a motion for summary judgment must "stand or fall on the grounds expressly presented in the motion."

"The trial court's summary judgment on the trespass claim is reversed, and the case is remanded for further proceedings consistent with this opinion," he wrote.

Sartin is represented in part by attorney Josh B. Maness.

Beacon is represented in part by attorney Michael K. Eaves.

Appeals case No. 09-08-00166-CV