APPELLANT

APPELLEES

In an action for underinsured motorist benefits arising out of an automobile accident, Dorothy Pendleton, the insured, appeals a summary judgment rendered in favor of Texas Farmers Insurance Company ("Farmers") and State Farm Mutual Automobile Insurance Company ("State Farm") (collectively, "Insurers"). In nine points of error and four reply points of error, Pendleton argues: (1) a fact issue exists regarding Insurers' consent to Pendleton's settlement of her negligence claim against the other driver involved in the accident; (2) the summary judgment evidence did not establish as a matter of law that Pendleton was required to get Insurers' consent before settling with the other driver; (3) the summary judgment in favor of Insurers was erroneously based on a judgment in another suit when the other suit was not pleaded as a ground for summary judgment; (4) the summary judgment evidence did not establish as a matter of law that the other driver was not an underinsured motorist. We will reverse.

Dorothy Pendleton was involved in an automobile accident with Gloria McCoy. At the time of the accident, Pendleton had underinsured motorist coverage with Farmers and she was driving a vehicle insured by State Farm for underinsured motorists benefits. Pendleton filed suit in the Travis County District Court against Farmers and State Farm for underinsured motorists benefits, and against McCoy for negligence. Farmers and State Farm subsequently filed suit in the Lubbock County District Court for declaratory judgment to determine the rights and legal relationships of the parties pursuant to the insurance policies. Farmers and State Farm filed motions for summary judgment in the Travis County suit, alleging that Pendleton's claims were based on a valid, enforceable policy exclusion. Meanwhile, in the Lubbock County case, the trial court rendered an adverse judgment against Pendleton. Insurers then filed a joint motion in the Travis County court to supplement their previous motions for summary judgment with evidence of the Lubbock County court's adverse judgment against Pendleton. ⁽¹⁾ The Travis County District Court granted Insurers' motion to file supplemental evidence and then granted summary judgment to Insurers based on the judgment rendered by the Lubbock County District Court. Pendleton appeals.

In her sixth and seventh points of error, Pendleton asserts that the Travis County District Court erred in granting summary judgment on a theory not pleaded in Insurers' motion for summary judgment. In response, Insurers contend that they expressly presented the Lubbock County judgment to the Travis County court by written motion and that under the doctrine of res judicata, the Travis County court properly rendered summary judgment based on the Lubbock County judgment.

A motion for summary judgment must "itself expressly present the grounds upon which it is made." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Furthermore, the motion for summary judgment will "stand or fall on the grounds expressly presented in the motion." Id. This rule does not permit the trial court to rely upon summary judgment evidence in determining whether grounds for summary judgment have been presented. Id. Consequently, it is error for a trial court to grant summary judgment based on evidence filed in support of the motion for summary judgment when that evidence attempts to raise a theory not presented in the actual motion.

In the instant case, Insurers moved for summary judgment with the Travis County District Court on the sole basis that Pendleton settled her claims without Insurers' consent and thus fell within a valid and enforceable exclusion of coverage under her policies. It was not until after the Lubbock County District Court rendered its judgment that Insurers moved for leave to file the Lubbock County judgment as supplemental evidence in support of their motions for summary judgment. Even then, Insurers did not amend their original motions for summary judgment to add the additional ground of a prior adverse judgment; they merely offered more evidence in support of their original motions. Because the Lubbock County judgment was never pleaded as a ground for summary judgment, the Travis County District Court erred in granting summary judgment on that basis. Accordingly, we sustain Pendleton's sixth and seventh points of error. Because these points are dispositive of the appeal, we do not address Pendleton's remaining points of error.

We reverse the judgment of the Travis County District Court and remand the cause.

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and Jones

Reversed and Remanded

Filed: April 6, 1994

Do Not Publish

1. Insurers' motion was titled "Defendants' Joint Motion for Leave to File Supplemental Evidence in Support of Defendants' Motions for Summary Judgment, or in the Alternative, Defendants' Motion for Continuance." In this motion, Insurers requested leave to supplement the evidence in support of their motions for summary judgment with the Lubbock County judgment and jury verdict. In the alternative, Insurers requested a continuance so that they could tender additional summary judgment evidence which would consist of the live pleadings from the Lubbock County case, together with the verdict and judgment rendered in that case. At oral argument in this Court, the parties stated to the Court that the Lubbock County judgment is presently on appeal.