The plaintiff in Benit v. Primalend Capital Partners filed a nonsuit of his claims on the evening before a summary-judgment hearing. The trial court struck the nonsuit and entered summary judgment against the plaintiff. The Fifth Court reversed, noting that the defendant had not made a claim for affirmative relief against the plaintiff, and holding that the defendant’s argument on appeal–that its motion to strike was in fact a Tex. R. Civ. P. 12 motion to show authority–was not supported by the defendant’s trial-court filing:
“Although Primalend’s motion to strike used the phrase ‘lacks authority,’ the motion did not mention rule 12; it was not sworn; it was not set for hearing; nor did it provide 10 days’ notice of a hearing. ... Primalend’s motion did not provide fair notice regarding the basis for the serious relief that Primalend now insists—on appeal—it requested of the trial court pursuant to rule 12.”
No. 05-21-00024-CV (May 6, 2022) (mem. op.) (citation omitted).
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