When to Raise Summary Judgment Grounds
A party seeking summary judgment must raise all its grounds in the motion itself; raising a ground for summary judgment at the summary judgment hearing will not support the summary judgment if the judgment is attacked on appeal.
In Ritchey v. Pinnell, Brenda Ritchey brought suit against Steven and Amy Pinnell after Ritchey purchased a home from the Pinnells and learned that she could not get a certificate of occupancy because many of the home improvements made by the Pinnells did not meet code requirements. Ritchey asserted claims for breach of contract and real estate fraud. The contract for purchase contained an "as is" clause.
The Pinnells sought summary judgment against Ritchey's claims. With respect to the fraud claim, the motion asserted that there was no evidence Steve Pinnell knew the alleged misrepresentations were false and there was no evidence the misrepresentations induced the sale. As to the breach-of-contract claim, the Pinnells argued that the "as is" clause defeated the claim. At the summary judgment hearing, the argument arose that the "as is" clause defeated causation as to the fraud claim. The trial court granted the Pinnells' motion on all claims and Ritchey appealed.
On appeal, the Texarkana Court of Appeals holds that the "as is" clause cannot be used to support the summary judgment on the fraud claim since that ground was not raised in the motion for summary judgment. The court otherwise holds that statutory fraud does not require that the declarant know that the misrepresentation was false and that there was some evidence the false representation induced the sale. Thus, the court reversed the summary judgmetn on the fraud claim. However, the court held that the "as is" clause defeated the breach of contract claim and the court affirmed the summary judgment on that claim. The court's opinion may be found at this link.
