s Houston [14th] Court of Appeals Reverses TC Order Granting Summary Judgment to Parties That Didn’t Request It | Texas Civil Justice League

Justice Ken Wise

The Houston [14th] Court of Appeals has reversed and remanded an atypical breach of contract case in which the trial court granted summary judgment in favor of parties that didn’t request it.

Insurors Indemnity Company v. Quality Works Construction, Inc., Misheck Kiragu, and City of Galveston (No. 14-23-00852-CV; August 26, 2025) arose from a dispute over a construction contract for restoration of an historic building in Galveston. Quality Works entered into a contract with the City of Galveston to restore the building. Insurors acted as surety and provided performance and payment bonds with the city as obligee, as required by § 2253.021, Government Code.  Quality Works agreed to indemnify Insurors for losses incurred by Insurors under bonds or due to Quality Works’ failure to perform or comply with the indemnity agreement. The indemnity agreement also granted Insurors a subrogation right in certain amounts owed to Contractor. After a dispute, the city terminated the contract, demanding that Insurors perform under the performance bond. After negotiations and the city withdrew the termination. The building’s owner subsequently filed suit against Quality Works and Insurors and made demands against one of the bonds. Quality Works then sued the city. The city settled with Quality Works, and Insurors settled with the owner.

Surety demanded that Quality Works indemnify it for the $79,693.88 in costs it had incurred from the demands made by the owner and the city. Contractor refused. Insurors filed suit for breach of contract and its common law rights to indemnity and equitable subrogation. It also sought a declaratory judgment stating that it was entitled to $79,693.88 from the proceeds of the city’s settlement with Quality Works. Insurors filed a motion for summary judgment, but Quality Works and the city did not. The trial court denied Insurors’ motion and issued a take-nothing judgment against it. Insurors moved for a new trial, arguing that the trial court erred by granting  judgment for Defendants when they didn’t request it. When the trial court did not rule on the motion, Insurors appealed.

In an opinion by Justice Wise, the court of appeals reversed and remanded. The question before the court was whether the trial court erred in effectively granting summary judgment in favor of Defendants when neither of them asked for it. As the court pointed out, “[t]he general rule is that a denial of a summary judgment cannot be reviewed on appeal,” except “when two parties move for summary judgment, and the trial court grants one motion but denies the other, the non-prevailing party may appeal both the summary judgment granted against it and the summary judgment denied it” (citation omitted). But the exception only applies if both parties filed motions, which was not the case here. The court further observed that the trial court’s judgment stated that it “finally disposes of all claims and all parties and is appealable.” Consequently, the court had jurisdiction over the judgment and could review its grant of summary judgment for Defendants (citation omitted). At the same time, the court noted, it did not have jurisdiction to review the trial court’s denial of Insurors’ motion for summary judgment, in accordance with the general rule. [The court also ruled that it could not review Quality Works’ challenge to the trial court’s denial of its attorney’s fees because that issue was not preserved for review.)

Turning to the judgment, the court concluded that the trial court erred in granting Defendants’ relief that they did not request. Quality Works argued that the trial court’s judgment amounted to a sua sponte dismissal for lack of subject matter jurisdiction because Insurors’ had no standing to bring its claims. The record, however, did not indicate that the trial court dismissed Insurors’ claims for lack of subject matter jurisdiction, and Quality Works conceded that it didn’t raise the standing issue with the trial court. Still, since standing is a jurisdictional issue, it may be raised for the first time on appeal. Applying the standing doctrine, Justice Wise concluded that Insurors alleged that it had an indemnity agreement with Quality Works, it incurred costs and expenses covered by the agreement, and it had not been indemnified by Quality Works as the agreement required. Consequently, Insurors suffered a concrete, particularized injury was fairly traceable to Quality Works’ conduct, and that the injury would likely be redressed by the requested relief. Insurors thus had standing, and since “[a] trial court cannot grant summary judgment for a party that has not moved for summary judgment” (citations omitted), the trial court erred in granting judgment for Defendants. It remanded the case for further proceedings.

TCJL Intern Satchel Williams researched and prepared the first draft of this article.

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