OPINION
Opinion by
This is an appeal from the trial court’s summary judgment rendered in favor of appellees. We affirm in part and reverse in part and remand.
*710 BACKGROUND
Appellants, Henry Sanchez, Jr. and Josefina Sanchez, are the co-owners of real property on which they intended to construct a Sonic Drive-in restaurant. The Sanchezes hired appellee Hypersonic Construction, LLC (“Hypersonic”) as the general contractor. Appellee, Ryan Mulva-ney, was one of the member-owners of Hypersonic. Ryan Mulvaney d/b/a Freestone Equipment Co. (“Mulvaney”) was also one of the subcontractоrs on the project. Alamo Concrete Products, Ltd. (“Alamo”) supplied the concrete. At some point during construction, Alamo was not paid for all the concrete it supplied to the prоject, and it filed a mechanic’s and mate-rialman’s lien encumbering the Sanchezes’ property. To avoid foreclosure and obtain permanent financing for the project, the Sanchezes paid Alamo the amount owed, plus attorney’s fees and interest.
The Sanchezes then sued Hypersonic; Ryan Mulvaney individually, in his capacity as an owner of Hypersonic, and in his capaсity as owner/operator of Freestone Equipment Co.; and four other individuals who were either owners or managers of Hypersonic on the following causes of action: violation of the Cоnstruction Trust Fund Act, DTPA violations, breach of contract, conversion, and common law contribution and equitable subrogation. In their petition, the Sanchezes asserted they paid to Hypersonic suffiсient funds earmarked for payment to Alamo, but that neither Hypersonic nor Mulvaney ensured that the money was tendered to Alamo. The San-chezes sought reimbursement for the monies paid by them to Alamo.
During mediation, the Sanchezes settled their claims against the four other individuals. Also, by this time, Hypersonic was defunct and insolvent. Eventually, the trial court rendered summary judgment in favor of Mulvaney on all of the Sanсhezes’ claims, and this appeal ensued.
MULVANEY’S MOTION FOR SUMMARY JUDGMENT
As a preliminary matter, we first address the parties’ disagreement over the type of summary judgment sought by Mul-vaney and the grounds on which he sought summary judgment. Mulvaney’s motion stаtes he sought both a traditional and no-evidence summary judgment. However, we determine the standard of proof on a summary judgment motion after considering the substance of the motion, rather than categorizing the motion strictly by its form or title.
See Rodgers v. Weather-spoon,
A motion for summary judgment must state the specific grounds upon which judgment is sought.
See
Tex.R. Civ. P. 166a(c). Under traditional summary judgment standards, a party moving for summary judgment has the burden of establishing as a mаtter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiffs cause of action.
Casso v. Brand,
The Sanchezes assert that, to the extent Mulvaney’s motion seeks a no-evidence summary judgment, it was insuffi
*711
cient because it failed to identify any elements of their causes of action upon which Mulvaney moved for summary judgment. Mulvaney contends his reply to the San-chezes’ response set out the elements of the Sanchezes’ claims as to which there was no evidencе. For the first time in his reply, Mulvaney specifically challenged the Sanchezes’ causes of action under the Texas Construction Trust Fund Act, and for DTPA violations, breach of contract, conversion, and common law contribution and equitable subrogation. However, a mov-ant may not use a reply brief to meet the specificity requirement or to assert new grounds for summary judgment.
Community Initiatives, Inc. v. Chase Bank of Texas,
In his motion for summary judgment, Mulvaney argued all of the liability the Sanchezes sought to impose on him was related to or arose from the contract between Hypersonic and the Sanchezеs; therefore, personal liability could be imposed on him only if the Sanchezes could pierce Hypersonic’s corporate veil. Mul-vaney argued the corporate veil could not be pierced because there was no evidence he committed any actual fraud or that he used Hypersonic as a sham to perpetrate a fraud. Mulvaney also argued that thе Sanchezes could not impose individual liability on him based upon Hypersonic’s forfeiture of its charter because all causes of action arose before Hypersonic forfeited its сharter in December 2006. Mulvaney did not seek to establish his entitlement to a traditional summary judgment by arguing that there existed no genuine issue of material fact as to one or more essential elements of each of the Sanchezes’ causes of action. Instead, he sought a no-evidence summary judgment only on the grounds that he was shielded from personal liability because there was no evidence of actual fraud on his part. Therefore, we construe Mulvaney’s motion as seeking a no-evidence summary judgment, and we apply the appropriate standard of review.
A no-evidenсe summary judgment motion is improperly granted when the non-movant brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Tex.R. Civ. P. 166a(i);
Gomez v. Tri City Cmty. Hosp., Ltd.,
BREACH OF CONTRACT CLAIM
There is no dispute that the only contract in this case is the one entered into bеtween the Sanchezes and Hypersonic. In their petition, the Sanchezes alleged Hypersonic “and its individual owners” breached the construction contract because “[Hypersonic] ... fаiled to perform numerous obligations under said contract.” The Sanchezes sought recovery against Mulvaney and the other individual defendants “as a result of [Hypersonic’s] forfeited status as a Texas Limited Liability Company.” Thus, the Sanchezes sought to hold Mulvaney individually liable for Hy *712 personic’s breach of its contractual obligations.
Generally, members are not individually liable for the debts of a limited liability company.
McCarthy v. Wani Venture, A.S.,
NON-CONTRACT CLAIMS
We believe Mulvanеy’s argument that liability could be imposed on him only if the Sanchezes pierced Hypersonic’s corporate veil misconstrues the non-contract claims brought against him. In their petition, the Sanchezes alleged Mulvaney “intentionally or knowingly or with intent to defraud, directly or indirectly retained, used, disbursed, or otherwise diverted [construction payments] without first fully paying obligations then owed ... to [Alamo].” The Sanсhezes also alleged Mulva-ney violated the DTPA by making certain misrepresentations, breaching certain warranties, and engaging in an unconscionable action or course of action. It is therefore clear that the Sanchezes sought to hold Mulvaney individually liable for his own allegedly tortious or fraudulent actions.
The issue of a defendant’s liability in his individual capacity is distinct from that of his liability under an alter ego theory. A corporatiоn’s agent is personally liable for his own fraudulent or tortious acts, even when acting within the course and scope of his employment.
See Miller v. Keyser,
CONCLUSION
Wе affirm the trial court’s summary judgment in favor of Mulvaney on the *713 Sanehezes’ breach of contract claim and we reverse the summary judgment in all other respects and remand for further proceedings.