This is a summary judgment case. Appellant Shank, Irwin, Conant & Williamson (“Shank Irwin”) appeals a summary judgment awarded Appellee Durant, Mankoff, Davis, Wolens & Francis (“Durant Man-koff”) on its contract action against Shank Irwin. Shank Irwin contends that Durant Mankoff is not entitled to summary judgment because Shank Irwin executed the contract solely as an agent for Appellant A1 Hill, Jr. (“Hill”). Hill also appeals the summary judgment granted Durant Man-koff on Hill’s claim in which Hill sought to challenge Durant Mankoff s right to any recovery on its contract action against Shank Irwin. For the reasons set forth below, we reverse the trial court’s judgment as to Shank Irwin and affirm it as to Hill.
THE FACTS
The agreement at the center of this controversy arose in the context of a divorce proceeding between Hill and his wife, Victoria Hill. Durant Mankoff represented Victoria Hill. During the settlement of the divorce, based on information gathered in representing Victoria Hill, Durant Mankoff proposed to render tax opinions as to business transactions involving Mr. Hill and related entities. In return for this advice, Durant Mankoff was to receive $85,000.00.
According to affidavits of Mr. Hill and A.B. Conant, Jr. (a partner with Shank Irwin), this arrangement was intended to allow Mr. Hill to pay a portion of the legal fees incurred by Victoria Hill in the divorce in a manner that would allow Mr. Hill to deduct it from his income for federal income tax purposes. Mr. Conant stated, in his affidavit, that Shank Irwin agreed to facilitate this arrangement and to assure Durant Mankoff that it would receive its fee.
Representatives of Durant Mankoff and Shank Irwin executed a letter setting forth the terms of the agreement (the “engagement letter”). This letter specified that Durant Mankoff would provide Shank Irwin with income tax opinions regarding business transactions involving Mr. Hill and related entities. The letter stated that Durant Mankoff’s fee would not exceed $85,000.00, but it did not state whether Shank Irwin or Hill would pay the fee. In the letter, Durant Mankoff also stated its opinion that the fee would be tax deductible. The letter was signed by representatives of Durant Mankoff and Shank Irwin. Hill did not sign the engagement letter, and the letter did not state that Shank Irwin was signing solely on Hill’s behalf.
After receiving the tax opinions, Hill concluded that they were valueless to him because they involved no more than basic applications of tax and corporate law principles and because they represented a “rehash” of opinions prepared by Hill’s accounting firm and submitted to Durant Mankoff. In addition, Hill concluded that, given the circumstances, he could not legally deduct the $85,000.00 fee if he paid it. Therefore, Hill refused to pay Durant Man-koff the fee.
Durant Mankoff demanded that Shank Irwin pay the fee, and Shank Irwin filed suit seeking a declaratory judgment against Durant Mankoff. 3 Shank Irwin also filed an action against Hill for indemnity and reimbursement. Durant Mankoff counterclaimed against Shank Irwin, seeking recovery of the $85,000.00 fee plus interest, attorneys’ fees, and costs. Hill filed a cross action against Durant Man-koff, seeking attorneys’ fees and a judgment “denying all relief sought with reference to the $85,000 fee.”
Durant Mankoff sought a summary judgment on its counterclaim and on Shank Irwin’s and Hill’s claims against it. Hill filed a written response and summary judg *497 ment evidence intended to raise fact issues as to whether Durant Mankoff was entitled to its $85,000 fee. Shank Irwin filed Co-nant’s affidavit, but it filed no other written answer to Durant Mankoff’s motion.
Durant Mankoff was granted summary judgment on all claims against it and on its counterclaim as to all matters except the reasonableness of attorneys’ fees incurred by Durant Mankoff in the action. The attorneys’ fees issue was tried to a jury. The trial court entered final judgment for Durant Mankoff on all claims and severed Shank Irwin’s claim for indemnity against Hill. Shank Irwin appeals the trial court’s judgment as to Durant Mankoff’s contract claim. Hill appeals the trial court’s judgment on his action against Durant Mankoff and its severance of the indemnity claim.
SHANK IRWIN’S APPEAL
In its first point of error, Shank Irwin states that the trial court erred in granting Durant Mankoff’s motion for summary judgment as to the contract claim. In support of this point, Shank Irwin relies on this Court’s decision in
Eppler, Guerin & Turner, Inc. v. Kasmir,
In its brief, Shank Irwin contends that, although it did not file a formal written response to Durant Mankoff’s motion for summary judgment, its filing of Conant’s affidavit was sufficient to raise the issue of its agency status. Shank Irwin also contends that Durant Mankoff’s own summary judgment motion and evidence raised the issue of Shank Irwin’s agency status. In support of this latter contention, Shank Irwin notes that Durant Mankoff, in its motion for summary judgment, stated that Shank Irwin and Durant Mankoff were the only parties to the agreement. Shank Irwin points out, however, that the engagement letter clearly indicates that Durant Mankoff was to render tax advice for the benefit of Shank Irwin’s client, Al Hill, Jr., and related entities. Shank Irwin argues that the engagement letter in this case is indistinguishable from the letter of agreement considered by this Court in Eppler, Guerin & Turner. This Court held that the letter of agreement in Eppler, Guerin & Turner conclusively established that the attorneys in that case were acting only as agents for a disclosed principal and, therefore, were not liable on the letter of agreement. Id. at 739.
Durant Mankoff raises two arguments in response. First, Durant Mankoff contends that Eppler, Guerin & Turner held only that the defense of agency was established on the basis of the facts of that case and that in this case the summary judgment evidence clearly established that Shank Irwin had obligated itself on the engagement letter. Second, Durant Mankoff contends that Shank Irwin is precluded from raising the matter of its agency status in this Court since it failed expressly to present this issue to the trial court in a written response to Durant Mankoff’s motion for summary judgment.
For the reasons explained below, we conclude that we may consider the issue of Shank Irwin’s agency status in determining whether Durant Mankoff has established its entitlement to summary judgment. Construing the engagement letter in light *498 of Eppler, Guerin & Turner, we further conclude that the summary judgment evidence conclusively establishes that Shank Irwin is not obligated on the engagement letter. Therefore, we reverse the trial court’s judgment as to Shank Irwin.
Texas Rule of Civil Procedure 166a governs summary judgments. Section (c) of that rule provides in part:
The judgment sought shall be rendered forthwith if [the summary judgment evidence shows that] there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.
TEX.R.CIV.P. 166a(c).
The primary case interpreting Rule 166a(c) is
City of Houston v. Clear Creek Basin Authority,
In this case, other than Conant’s affidavit, Shank Irwin filed no written response to Durant Mankoff’s motion for summary judgment. Even if Conant’s affidavit contained statements which would raise a fact issue with regard to Shank Irwin’s agency status, this affidavit did not, by itself, constitute a “written answer or other response” expressly presenting the agency issue to the trial court.
Holmes v. Dallas International Bank,
Consequently, with respect to its contention on appeal that the summary judgment evidence presents an issue as to its agency status, Shank Irwin is in the position of a nonmovant who has filed no written answer or other response. Therefore, we must first decide whether Shank Irwin’s claim that the engagement letter itself raises the issue of Shank Irwin’s status as an agent for a disclosed principal is a challenge to the legal sufficiency of Durant Mankoff’s grounds for summary judgment. If so, it is an issue which Shank Irwin may raise despite its failure to respond to Durant Mankoff s motion. On the other hand, if Shank Irwin’s claim is an affirmative defense, Shank Irwin is precluded from raising it on appeal because of Shank Irwin’s failure to present this defense to the trial court.
In this case, the existence of a contractual relationship between Durant Mankoff and Shank Irwin is an essential element of Durant Mankoff’s action against Shank Irwin.
See Koenning v. Manco Corp.,
Cases involving suits on sworn accounts under Texas Rule of Civil Procedure 185 support our decision to consider Shank Irwin’s claim a challenge to the legal sufficiency of Durant Mankoff’s grounds for summary judgment. In two cases decided after
Clear Creek,
the courts of appeals have reversed summary judgments in favor of plaintiffs on the basis of defendants’ contentions that the evidence which the plaintiffs submitted in support of the motion for summary judgment created a fact issue as to whether the appealing defendant was a party to the transaction.
Keever v. Hall & Northway Advertising, Inc.,
Durant Mankoff argues that, even if we consider the issue of Shank Irwin’s agency status, Durant Mankoff has still conclusively established that it is entitled to summary judgment on the engagement letter. Noting that Texas law recognizes that an agent may obligate himself on a contract for a disclosed principal, Durant Mankoff contends that the summary judgment evidence conclusively established Shank Irwin’s liability on the engagement letter. In support of this contention, Durant Mankoff points to statements by A.B. Conant, a partner in Shank Irwin. In his deposition and his affidavit, Conant indicated that Shank Irwin obligated itself to pay Durant Mankoff the $85,000 fee if Hill refused to pay it. Durant Mankoff contends that these statements show that the parties intended that Shank Irwin would be obligated on the engagement letter.
In this case, neither Shank Irwin nor Durant Mankoff contend that the engagement letter is ambiguous, and neither party has pleaded an ambiguity in the letter. Consequently, we may not consider the parol evidence that Durant Mankoff cites.
Heffron v. Pollard,
In its prayer for relief, Shank Irwin requests this court to render judgment in its favor on the contract claim. As the previous discussion indicates, under the pleadings in this case, we must construe the engagement letter as a matter of law. On this basis, the engagement letter conclusively establishes that Shank Irwin contracted solely as an agent for a disclosed principal and assumed no liability on the engagement letter. Therefore, Shank Irwin has established that it is entitled to judgment as a matter of law. When a court of appeals reverses a summary judgment, however, if the opposing party did not also move for summary judgment, the court of appeals may only remand the case to the trial court; it may not render judgment in favor of the nonmovant.
CRA, Inc. v. Bullock,
AL HILL’S APPEAL
In his first two points of error, Hill contends that the trial court erred in entering summary judgment against him on his cross action against Durant Mankoff. In that action, Hill set forth the facts surrounding the engagement letter. He presented his contentions that the $85,-000.00 fee sought by Durant Mankoff was an unreasonable charge under the circumstances and that his payment of the fee would have been participation in tax fraud. As relief, Hill requested that the trial court “deny all relief sought with reference to the $85,000 fee” and that the trial court award him attorneys’ fees and costs against Durant Mankoff.
In his brief, Hill presents the following arguments in support of his assertion that the trial court erred in granting summary judgment against him. First, Hill argues that the summary judgment evidence raised fact issues regarding the reasonableness of the $85,000.00 fee, the value of the tax opinions as consideration for the agreement, and other issues constituting a defense to Durant Mankoff’s contract action. In addition, Hill argues that a principal is entitled to participate with its agent in any action in which the principal has an interest and to prosecute and defend all issues in such an action. Finally, Hill contends that the trial court’s judgment will allow Shank Irwin to invoke the doctrines of collateral estoppel and res judicata to prevent Hill from raising his defenses in Shank Irwin’s indemnity action.
In his cross action, Hill did not seek a declaratory judgment that
he
had no liability to Durant Mankoff or Shank Irwin for the $85,000.00 fee. Instead he attempted to raise, by means of a cross action, defenses to Durant Mankoff’s action to recover on the contract against Shank Irwin. Because Hill’s cross action did no more than assert defenses to an action to which he was not a party, his cross action did not
*501
state a cause of action. In addition, Hill has stated no statutory or contractual basis for his claim of attorneys’ fees. For these reasons, we conclude that the trial court was correct in granting summary judgment against Hill on his cross action.
See Jacobs v. Cude,
This case raises the question of the rights of a principal. Hill contends that he is entitled to participate, independently, in this action because of his status as a principal. However, he has cited no authority, and we have found none, supporting a third party’s right to raise defenses by way of a cross action such as this. As a principal, Hill has the right to
demand of his agent
the opportunity to defend the agent.
See Butler v. Continental Oil Co.,
As to Hill’s last argument, his brief indicates that he is concerned with the preclu-sive effect of a judgment against Shank Irwin as that relates to Shank Irwin’s pending indemnity action against him. The pre-clusiveness of the judgment as between Shank Irwin and Hill is a function of whether Shank Irwin (as agent) accedes to the demand of Hill (the principal) to take over the defense of the suit.
In his third point of error, Hill contends that the trial court abused its discretion in severing Shank Irwin’s indemnity action. In general, to preserve a complaint for appellate review, the complaining party must have presented a timely objection, motion or request to the trial court.
See PGP Gas Products, Inc. v. Fariss,
The judgment of the trial court granting Durant Mankoff summary judgment on Hill’s cross action is affirmed. The judgment of the trial court granting Durant Mankoff summary judgment on its contract claim against Shank Irwin is reversed and that claim is remanded to the trial court with instructions.
Notes
.Although Shank Irwin is representing itself in this appeal, it was represented by outside counsel in the trial court.
. In its prayer for relief, Shank Irwin also requests that we remand the case to the trial court for a determination of its reasonable attorneys’ fees as the prevailing party in its declaratory judgment action. However, once Durant Man-koff filed its action on the contract, Shank Irwin’s request for declaratory judgment of non-liability became moot.
See Serna v. Cochrum,