author: TERRY JENNINGS, Justice.

text:
    Michael W. MORRIS, M.D., Appellant, v. Mary UMBERSON, Appellee.
    No. 01-09-00644-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 5, 2009.

      Roger D. Oppenheim, Scott B. Novak, Lorance & Thompson, P.C., Houston, TX, for Appellant.
    Kelly Greenwood Prather, The Greenwood Prather Law Firm, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

TERRY JENNINGS, Justice.

In this interlocutory appeal, appellant, Michael W. Morris, M.D., challenges the trial court’s order denying his motion to dismiss the health care liability claim of appellee, Mary Umberson. In two issues, Dr. Morris contends that the trial court erred in not dismissing Umberson’s claim for failure to serve an expert report within 120 days of filing suit and in granting Umberson a thirty-day extension to cure deficiencies in her late served expert report that was “fundamentally deficient and, consequently, represented no report at all.” Umberson has filed in this Court a motion to dismiss Dr. Morris’s interlocutory appeal for lack of jurisdiction.

We dismiss the interlocutory appeal.

Background

On November 21, 2008, Umberson filed her health care liability claim alleging that Dr. Morris was negligent in attempting to “insert a port-a-cath chemotherapy port as a part of her chemotherapy and radiotherapy treatment.” She alleges that Dr. Morris undertook a mode of treatment that “a reasonable and prudent member of the medical profession would not have taken under the same or similar circumstances.” Dr. Morris was served with citation on December 9, 2008, and his answer was due on January'5, 2009. However, he did not timely answer. On February 6, 2009, Um-berson filed with the trial court Dr. Ahsan Ali’s expert report and curriculum vitae, but she did not serve it on Dr. Morris, who still had not answered.

On April 30, 2009, Umberson filed a “Motion for Interlocutory Default Judgment as to Liability Only,” and on May 7, 2009, Dr. Morris filed his answer. He then filed his response to Umberson’s motion on May 8, 2009. On May 11, 2009, Umberson served Dr. Morris the expert report of Dr. Ahsan Ali and his curriculum vitae.

In his report, Dr. Ali reviewed the history of the incident and Umberson’s prior health, discussed the applicable standard of care for placement of a central venous catheter, or port-a-cath, explained how Dr. Morris breached that standard of care, and assigned cause for Umberson’s injury to Dr. Morris’s failure to meet the standard of care.

Dr. Morris moved to dismiss Umber-son’s claim on the ground that she had not timely served him with a copy of her expert report, and he also objected to the sufficiency of the report. The trial court denied Dr. Morris’s motion, but, finding that the expert report was deficient as to causation, granted Umberson a thirty-day extension to cure-the deficiency. Dr. Morris then filed this interlocutory appeal challenging the trial court’s order denying his motion and granting Umberson a thirty-day extension to cure.

Interlocutory Appeal

At the outset, we must determine whether we have jurisdiction over this interlocutory appeal. Umberson argues that this Court lacks jurisdiction over the appeal because “[Dr. Morris] filed it before the deadline to supplement the expert report expired.” Umberson asserts that the trial court denied Dr. Morris’s motion to dismiss and granted her a thirty-day extension to cure deficiencies in her report. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008).

If a trial court has not entered a final and appealable order, we have jurisdiction to hear an interlocutory appeal only if authorized by statute. Stary v. DeBord, 967 S.W.2d 852, 352-58 (Tex.1998). Section 51.014(a)(9) provides,

A person may appeal from an interlocutory order of a district court, county court at law, or county court that denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351.

Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9). Section 74.351, in pertinent part, provides:

(a)In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court’s ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.

Id. § 74.351(a)-(c) (Vernon 2008).

An expert report may be deemed untimely filed under section 74.351(a) if it is served before the 120-day deadline, but is deficient. CHCA Mainland L.P. v. Burkhalter, 227 S.W.3d 221, 225 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see Ogletree v. Matthews, 262 S.W.3d 316, 320-21 (Tex.2007). In its discretion, a trial court may then grant one thirty-day extension to cure defects. Tex. Civ. Prac. & Rem.Code ANN. § 74.351(c). A defendant may not appeal from an order denying his motion to dismiss if the trial court also grants such an extension. Id. § 51.014(a)(9). This allows “plaintiffs the opportunity to cure defects in existing reports. If a defendant could immediately appeal the denial of his motion to dismiss, the court of appeals would be reviewing the report’s sufficiency while its deficiencies were presumably being cured in the trial court.” Badiga v. Lopez, 274 S.W.3d 681, 684 (Tex.2009). However, a trial court has no discretion to grant an extension if no report is filed by the deadline, and a defendant may properly appeal an order denying his motion and granting such an extension. Id.

Timely Service of the Expert Report

Dr. Morris first argues that this Court has jurisdiction over his interlocutory appeal because the trial court abused its discretion in denying his motion to dismiss and in granting Umberson a thirty-day extension to file a sufficient expert report. He asserts that Umberson “fail[ed] to serve an expert report within the time allotted by Tex. Civ. Prac. & Rem. Code Ann. 74.351.” Dr. Morris further argues that because no report was timely served on him, the trial court did not have discretion to grant Umberson an extension.

We review de novo the trial court’s conclusion that Dr. Morris, under section 74.351(a), was timely served with Umberson’s expert report. Univ. of Tex. Health Sci Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

Umberson argues that her expert report was timely served on May 11, 2009, because the statutory period was tolled during the time between the date Dr. Morris’s answer was due, January 5, 2009, and the date he actually filed his answer, May 7, 2009. In support of her argument, Umberson relies on Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008) (per curiam).

In Gardner, the plaintiffs, on August 24, 2006, filed a medical malpractice action against the doctor and the facility where the doctor performed the procedure about which the plaintiffs complained. Id. at 670. The doctor timely answered and the plaintiffs timely served him with an expert report. Id. The facility did not answer and before the 120-day period for serving the expert report expired on December 22, 2006, the plaintiffs moved for a default judgment. Id. The plaintiffs did not serve the facility with an expert report before that date. Id. The trial court granted the default judgment on December 14, 2006, and severed the suit against the facility. Id. Upon learning of the judgment, the facility filed a motion for new trial to set aside the default judgment, which the trial court granted on February 8, 2007. Id. The plaintiffs non-suited the facility in the severed suit, and the facility then answered the original suit on February 12, 2007. Id. On March 20, 2007, the plaintiffs served the facility with their expert report. Id. The facility, relying on section 74.351(b), moved to dismiss the claim asserting that the report was non-compliant. Id. The trial court denied the motion, and the facility appealed. Id. The court of appeals, finding the report deficient, remanded the claim to the trial court for a determination of attorney’s fees only in favor of the facility. Id. The plaintiffs filed a motion for rehearing asserting that the court of appeals should also have remanded to have the trial court consider granting a thirty-day extension to cure. Id. at 671. The motion was denied. Id.

In the Texas Supreme Court, the facility argued that the expert report was not timely served because it was not served by December 22, 2006, the end of the statutory 120-day period. Id. The plaintiffs contended that the statutory period was tolled when the facility defaulted and failed to answer. Id. The supreme court agreed with the plaintiffs and held that “when [the facility] failed to timely answer the [plaintiffs’] suit by the Monday following the expiration of twenty days after it was served, see Tex.R. Civ. P. 99(b), the statutory period for serving [the facility] with an expert report was tolled until such time as [the facility] made an appearance.” Id. (emphasis added). The court determined that “[o]nce the default judgment was set aside and [the facility] filed an answer, tolling ended and the [plaintiffs] had 100 days remaining in which to serve [the facility] with an expert report. [The facility] filed an answer in the original suit on February 12, and the [plaintiffs] served it with an expert report on March 20, well within the remaining statutory period.” Id. (emphasis added).

Dr. Morris argues that the statutory period was not tolled because, unlike in Gardner, Umberson filed a motion for default judgment, which had not been granted. However, as noted above, the triggering event in Gardner for the tolling of the statutory period was not the granting of the default judgment, but rather the defendant’s failure to timely answer. Id. The tolling ended in Gardner when the facility answered, not when the default judgment was set aside. Id. That the trial court had granted a default judgment was not dispositive to the supreme court’s holding.

We hold that the statutory period for Umberson to serve her expert report on Dr. Morris was tolled until May 7, 2009, the date Dr. Morris answered. Dr. Morris untimely answered on May 7, 2009. The statutory period for timely serving the expert report was tolled until that date. Umberson had seventy-five days remaining until July 21, 2009, to serve her expert report on Dr. Morris (120 days less 45 days that had already elapsed from date of filing to date that Dr. Morris’s answer was due). Accordingly, we further hold that Umberson’s expert report was timely served on Dr. Morris on May 11, 2009.

We overrule Dr. Morris’s first issue.

Adequacy of Expert Report

Dr. Morris next argues that because “the report submitted by Dr. Ahsan Ali completely omits any intelligent discussion of causation and, necessarily, is tantamount to serving no report at all,” the trial court did not have discretion to grant Umberson a thirty-day extension to cure. See Tex. Crv. Prac. & Rem.Code Ann. § 74.351. He further argues that this Court has jurisdiction over this interlocutory appeal because it is an appeal from an order of dismissal only, not an order of dismissal coupled with a valid order for an extension to cure. See Id. § 51.014(a)(9).

In Ogletree, the healthcare defendant argued to the Austin Court of Appeals that although the plaintiffs had timely served an expert report, they had “failed to file an expert report as to [his] alleged malpractice” and, thus, the trial court had no discretion to grant an extension. Heart Hosp. of Austin v. Matthews, 212 S.W.3d 331, 333 (Tex.App.-Austin 2006), aff'd, Ogletree v. Matthews, 262 S.W.3d 316 (Tex.2007). Without expounding on the contents of the expert report, the Austin Court of Appeals held that it lacked jurisdiction under section 51.014(a)(9) because the trial court had found the “reports were deficient as to [the healthcare defendant]” and, in its order, both denied the healthcare defendant’s motion to dismiss and granted an extension under section 74.351(c). Id. at 335.

In reviewing the Austin Court of Appeals holding, the Texas Supreme Court explained:

If [the healthcare defendant’s] position were correct, a defendant would be entitled to immediately appeal a trial court’s order denying dismissal any time a report failed to meet the strict statutory guidelines, even though the statute permits a plaintiff to cure defects of that nature ... If a defendant could immediately appeal, the court of appeals would address the report’s sufficiency while its deficiencies were presumably being cured at the trial court level, an illogical and wasteful result.

Ogletree, 262 S.W.3d at 321. Even though the report did not mention the healthcare defendant by name, the supreme court held, “[b]ecause a report that implicated [the healthcare defendant’s] conduct was served and the trial court granted an extension, the court of appeals could not reach the merits of the motion to dismiss,” and “the court of appeals correctly determined that it lacked jurisdiction over [the healthcare defendant’s] appeal.” Id.

Since Ogletree, many healthcare defendants have argued that courts of appeal have interlocutory jurisdiction under section 51.104(a)(9), even when a trial court enters an order denying a motion to dismiss which includes a section 74.351(c) order granting an extension, because if a timely served report is “so deficient that it [is] no report,” the trial court has no discretion to grant a thirty-day extension. In McKeever v. Cerny, two doctors appealed an order granting an extension and made such an argument. 266 S.W.3d 451, 454 (Tex.App.-Corpus Christi 2008, no pet.). The report mentioned one doctor but not the other, and both doctors asserted that the report was “so deficient that it [did] not constitute an expert report.” Id. Though noting the report did not name one of the doctors, the Corpus Christi Court of Appeals rejected the doctors’ argument and, citing Ogletree, held that it lacked jurisdiction over both interlocutory appeals because the order denying their motions to dismiss included an order granting an extension. Id. at 455.

In Nexion Health at Oak Manor, Inc. v. Brewer, the healthcare defendant asserted that the plaintiffs expert report did not address causation and was not merely deficient but no report at all. 243 S.W.3d 848, 851 (Tex.App.-Tyler 2008) (opinion on rehearing), rev’d on other grounds, In re Buster, 275 S.W.3d 475 (Tex.2008). The Tyler Court of Appeals determined that “[b]eeause [the healthcare defendant’s] complaint relates to the content of the réport ... the report is deficient, but the deficiency does not render it ‘no report at all.’ ” Id. Therefore, the trial court had discretion to order an extension thus depriving the court of jurisdiction to hear the interlocutory appeal. Id. at 851-52.

The Houston Fourteenth, Fort Worth, El Paso, and Dallas Courts of Appeal have all held that they lack jurisdiction to hear an interlocutory appeal when a trial court grants an extension to cure timely served expert reports that healthcare defendants assert are “no report” as to them. Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 115-16 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (holding no jurisdiction when trial court granted extension because it found deficiency even though it was not same deficiency complained of by appellant in his motion to dismiss); Scoresby v. Santillan, 287 S.W.3d 319, 321-24 (Tex.App.-Fort Worth 2009, pet. filed) (holding no jurisdiction when trial court granted extension even though appellants argued expert report was “so woefully deficient” on necessary elements so as to constitute no report and report was missing expert’s curriculum vitae); Tenet Hosp., Ltd. v. Gomez, 276 S.W.3d 9, 12-13 (Tex.App.-El Paso 2008, no pet.) (holding no jurisdiction where appellant argued report was no report because it failed to mention appellant in “any substantive way,” but trial court found report was merely deficient on element of causation as to appellant and granted extension).

In support of his argument that this Court has jurisdiction to hear his interlocutory appeal, Dr. Morris relies on Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.); Maxwell v. Seifert, 237 S.W.3d 423, 427-28 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Bogar v. Esparza, 257 S.W.3d 354, 364-69 (Tex.App.-Austin 2008, no pet.); and RGV Healthcare Associates, Inc. v. Estevis, 294 S.W.3d 264, 268-71 (Tex.App.-Corpus Christi 2009, no pet.). However, all of these case are substantially different from the instant case.

Marichalar involved an appeal from an order denying a motion to dismiss that did not include an order granting an extension. 185 S.W.3d at 72. There, the expert report did not even mention the healthcare defendant. Id. The court held that it had jurisdiction under section 51.014(a)(9) because no extension was included in the order and the trial court could not properly grant an extension because no report had been served as to the healthcare defendant. Id. at 74.

Maxwell involved the appeal of an order granting the healthcare defendant’s motion to dismiss. 237 S.W.3d at 425. There, the plaintiff had served on the healthcare defendant medical records rather than the required expert report. Id. Because no expert report had been served by the deadline, the court held the trial court correctly denied the plaintiff an extension. Id.

Bogar involved an order denying a motion to dismiss that did not include an order granting an extension. 257 S.W.3d at 361. The plaintiffs had served an expert report that “[did] not identify in any way the person or persons whose conduct is the subject of any of [the expert’s] opinions regarding standard of care, causation and death.” Id. at 364. The court found the report to be no report as to the healthcare defendant because it did not implicate him in any way. Id. at 368. Since the plaintiffs could “ ‘cure’ the deficiencies ... only by ‘generating a new, previously nonexistent report’ as to [the healthcare defendant],” the court held the plaintiffs were ineligible for an extension. Id. at 369.

Estevis involved an appeal from an order denying the health care defendant’s motion to dismiss. 294 S.W.3d at 268-69. The defendant argued that the expert report did not support the plaintiffs direct liability theory because the report did not identify the defendant by name or state how the defendant had breached the standard of care. Id. at 269-71. On that basis, the court found that the trial court had abused its discretion in denying the defendant’s motion to dismiss as to the plaintiffs direct liability theory. Id.; see also Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (holding that expert report failed to implicate defendant in context of plaintiffs direct liability theory and, thus, trial court had no discretion to grant extension but only to dismiss).

None of the cases on which Dr. Morris relies involves an order, like the order here, denying a motion to dismiss and granting an extension to cure. This case is not like Marichalar, Bogar, and Estevis where the served reports failed to even mention the healthcare defendants in the capacity in which they were sued. Here, as in McKeever, Brewer, Pokluda, Scoresby, and Gomez, Umberson timely served Dr. Morris with an expert report that implicated Dr. Morris directly. Dr. Ali’s report specifically named Dr. Morris, discussed the standard of care, explained how Dr. Morris’s actions breached that standard, and addressed causation. Finally, this case is not like Maxwell where the plaintiff served medical records in lieu of an expert report. Here, Umberson timely served an actual expert report with all the required section 74.351 (r)(6) elements, but the trial court found the report to be deficient as to causation.

At first blush, this ease appears similar to Rivenes v. Holden in which the Fourteenth Court of Appeals held that the trial court had no discretion to grant an extension and, thus, the court had jurisdiction under section 51.014(a)(9) over the appeal. 257 S.W.3d 332, 340-41 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (opinion on rehearing). In Rivenes, the plaintiffs timely served an expert report, but the report did not mention or discuss the healthcare defendant and his alleged negligence. Id. at 334-35. The trial court denied the healthcare defendant’s motion to dismiss and granted an extension. Id. at 339-40. The court of appeals concluded that the presumed report was in fact “no report” as to the healthcare defendant. Id. Although both Rivenes and this case involve an order denying a motion to dismiss and granting an extension, Rivenes involved a Marichalar- type situation where the timely served report was nonetheless “no report” as to the healthcare defendant because the report failed to mention the healthcare defendant. Here, Dr. Morris, in support of his contention that “no report” has been filed, asserts that Dr. Ali’s report “completely omits the required discussion of causality [such that] it is tantamount to having filed no report at all” and “falls woefully short of a good faith effort as to the essential element of causation.” However, Dr. Ali’s report implicated Dr. Morris’s conduct, and, thus, it was not, as in Rivenes, “no report” as to Dr. Morris.

Dr. Morris is essentially asking us to label as “no report” a timely served expert report that expressly implicates Dr. Morris, but which he asserts is deficient and woefully inadequate as if it is “no report.” This we cannot do. As the court said in Scoresby:

[w]hether or not the court in Ogletree intended to “limit[ ] the universe of possible reports” to absent reports and deficient reports, that is the limitation we reasonably construe from the opinion’s analysis. At present, neither Ogletree, nor any other supreme court opinion holds that a timely served expert report containing a narrative that fails to include any expert opinion on the standard of care, breach, or causation is tantamount to no report at all and thus ineligible for any section 74.315(c) extension.

287 S.W.3d. at 324. Here, Dr. Ali’s report is an existing expert report, which contained all the required section 74.351(r)(6) elements. It was timely served, and the trial court determined it to be deficient only in its discussion of causation. We can not agree that the report is so deficient as to constitute no report at all. Even if it were so inadequate, the Texas Supreme Court has clearly explained that when a timely served expert report that implicates a healthcare defendant has been found deficient and an order granting an extension has been entered, section 51.014(a)(9) deprives the courts of appeal of jurisdiction over an interlocutory appeal of the order. Ogletree, 262 S.W.3d at 321. Accordingly, we hold that the trial court did not err in granting Umberson a thirty-day extension to cure Dr. Ali’s timely served but deficient expert report.

We overrule Dr. Morris’s second issue.

Conclusion

Because section 51.014(a)(9) plainly prohibits interlocutory appeals of orders granting extensions, we agree with Um-berson that Dr. Morris’s appeal is premature and hold that we lack jurisdiction over this appeal. Accordingly, we dismiss Dr. Morris’s interlocutory appeal for lack of jurisdiction.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008) (“A person may appeal from an interlocutory order of a district court, county court at law, or county court that ... denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351.”).

      . See Tex. Civ. Prac & Rem.Code Ann. § 74.351 (Vernon 2008).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Graham MENSA-WILMOT, Appellant, v. SMITH INTERNATIONAL, INC., Appellee.
    No. 01-08-00481-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 19, 2009.

      Timothy A. Hootman, Houston, TX, for Appellant.
    Dean Joseph Schaner, Haynes & Boone, L.L.P., Martha W. Velasco Suarez, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

ELSA ALCALA, Justice.

Appellant, Graham Mensa-Wilmot (“Mensa-Wilmot”) appeals from a take-nothing summary judgment rendered in favor of appellee, Smith International, Inc. (“Smith”). In five issues, Mensa-Wilmot contends we lack jurisdiction because his amended petition added causes of action that were not addressed in the motions for summary judgment; the trial court erred by rendering summary judgment on causes of action not addressed in the motions for summary judgment; and the summary judgment evidence on the breach of contract claim raised a fact issue concerning whether Mensa-Wilmot properly exercised his stock options before he resigned. We conclude that we have jurisdiction over this appeal, that the trial court did not err by rendering summary judgment in favor of Smith on the claims pleaded in Mensa-Wilmot’s late-filed amended petition, and that the trial court did not err by granting summary judgment in favor of Smith on Mensa-Wilmot’s breach of contract claim. We affirm.

Background

Smith is a worldwide supplier of products and services for the oil and gas industry. Mensa-Wilmot was an employee of Smith from 1994 until his resignation in 2005. During his employment, Mensa-Wilmot entered into three Nonqualified Stock Option Agreements (“NQSOA”) under Smith’s 1989 Long Term Incentive Compensation Plan (“Plan”). Mensa-Wil-mot was informed of the appropriate procedures to exercise his stock options when he entered into the stock option agreements.

The Plan stipulated Mensa-Wilmot must be a Smith employee at the time when the option is exercised. Specifically, the 1997 and 1999 NQSOAs described the time during which the option could be exercised and then stated, “Anything to the contrary herein notwithstanding, the option granted hereunder shall terminate immediately upon the voluntary resignation by Employee....” In the 2001 NQSOA, the language is: “Notwithstanding anything to the contrary in Sections 1(c), 1(d), 1(e) or in any other provisions of this Agreement, the option granted hereunder shall terminate immediately upon the voluntary resignation by Employee.... ” In addition, the Plan provided,

Unless otherwise expressly provided in the Grantee’s Incentive agreement, with respect to a Grantee who is an Employee, in the event of termination of the Grantee’s Employment except resulting from his Disability or Retirement ... any vested Incentive Award shall expire on the earlier of (A) the expiration date set forth in the Incentive Agreement for such Incentive Award, or (B) the expiration of ninety (90) days after the date of his termination of Employment.

To exercise stock options, the Plan required Mensa-Wilmot to sign and deliver written notice to Smith’s secretary specifying the number of shares he desired and how he wanted the stock to be issued. In pertinent part, the first NQSOA, dated December 3,1997, provides,

[T]his option may be exercised by written notice signed by Employee and delivered to the Corporate Secretary of the Company or sent by certified mail addressed to the Company (for the attention of the Corporate Secretary) at its corporate office in Houston, Texas. Such notice shall state the number of shares of Common Stock as to which the option is exercised and shall be accompanied by the full amount of the purchase price of such shares.

The December 7, 1999 and December 4, 2001 NQSOAs both provide,

[Tjhis option may be exercised by written notice signed by Employee, or any trust, person or entity to whom Employee has transferred his rights under this option in accordance with Section 7(g) of the Plan, and delivered to the Corporate Secretary of the Company or sent by certified mail addressed to the Company (for the attention of the Corporate Secretary) at its corporate offices in Houston, Texas. Such notice shall state the number of shares of Common Stock as to which the option is exercised and shall be accompanied by the full amount of the purchase price of such shares.

In addition to the stock options, the Plan identified several different types of incentive awards, including “Restricted Stock Units.” Section 2 of the Plan covered stock options and Section 5 of the plan covered restricted stock units. Mensa-Wilmot received 140 unvested restricted stock units under the Plan.

On November 10, 2005, Mensa-Wilmot sent an e-mail informing his supervisor Paul Cox of his resignation, effective one month later on December 10. Mensa-Wilmot states that, at about the same time he sent the notice of his resignation, he sent a handwritten letter to Smith informing Smith of his intention to exercise his stock options.

On November 22, 2005, Merrill Lynch sent an e-mail to Smith’s employees informing them that their restricted stock units would vest on December 7, 2005. The email instructed the employees to open an account with Merrill Lynch so that, upon vesting, the restricted stock units would be deposited into the employees’ accounts.

On December 7, Merrill Lynch contacted Cay Price (“Price”), the Plan administrator, informing her that Mensa-Wilmot did not open an account. After Price unsuccessfully attempted to contact Mensa-Wilmot, she next contacted Jane Aynn Prestenbach to determine Mensa-Wilmot’s employment status with Smith. Presten-bach sent an e-mail to Mensa-Wilmot, forwarding the November 22 email from Merrill Lynch. Prestenbach contacted Stuart Oliver, informing him that she was unable to contact Mensa-Wilmot. Oliver sent Mensa-Wilmot an e-mail notifying him that his restricted stock units vested and he needed to contact Prestenbach. The Merrill Lynch e-mail was attached to Oliver’s e-mail to Mensa-Wilmot. Upon receiving the e-mail, Mensa-Wilmot spoke with Prestenbach. After that conversation, Mensa-Wilmot contends he filled out the appropriate forms for opening an account and returned it to Merrill Lynch.

Mensa-Wilmot contacted Price during the last week of December 2005 to inquire about his stock options. Price informed Mensa-Wilmot he would need to send a check to pay for the stock. Mensa-Wilmot sent the check. On December 80, Price contacted Prestenbach to confirm Mensa-Wilmot’s reason for termination from Smith so she would know how to handle Mensa-Wilmot’s stock options because the stock options were treated differently depending whether the employee voluntarily resigned or was terminated. After it was confirmed that Mensa-Wilmot resigned, Price determined that Mensa-Wilmot did not follow the appropriate procedures to exercise his stock options.

Mensa-Wilmot received a deposit into his Merrill Lynch account, but it was for $2,700, which was much less than he expected. He contacted Price and she informed him that the size of the deposit was due to his failure to exercise his stock options in accordance with the time line described in the agreement. Specifically, Mensa-Wilmot did not comply with the agreement because he did not declare an intent to exercise his options before December 10, 2005.

After filing this suit, Mensa-Wilmot moved for summary judgment on his breach of contract claims. In his motion, Mensa-Wilmot said, “Smith has not put forth any evidence demonstrating why there is not an enforceable and binding contract in the form of the Agreements that should be honored.” Mensa-Wilmot also asserted he was entitled to summary judgment because the evidence conclusively established he had exercised his options. Specifically, Mensa-Wilmot stated,

Wilmot tendered his resignation to Smith on November 10, 2005. From this point forward, there are numerous internal emails that are exchanged at Smith evidencing as a matter of law that Wilmot’s Stock Options have vested and owing, [sic] As a matter of law, and upon reviewing these emails it is evident that Wilmot has met his burden in proving the elements of a breach of contract claim. In particular, these internal Smith e-mails demonstrate an acknowl-edgement [sic] on Smith’s part that Wil-mot’s stock options are vested and owing, contrary to their position in this litigation.

(Citations to summary judgment exhibits omitted).

Smith filed a cross motion for summary judgment. In it, Smith asserted Mensa-Wilmot produced no evidence he timely exercised his stock options in the manner specified in the NQSOAs, which was a condition precedent to Smith’s contractual obligations under the NQSOAs. Smith also asserted that because Mensa-Wilmot had not fulfilled the condition precedent, Mensa-Wilmot had no evidence that Smith breached the contract. Smith also asserted the evidence conclusively negated the same two elements of Mensa-Wilmot’s claim.

After the submission of the summary judgment motions, and one week before the trial court granted Smith’s motion and denied Mensa-Wilmot’s motion, Mensa-Wilmot filed an amended original petition to include claims for statutory fraud, common-law fraud, and unjust enrichment. Mensa-Wilmot did not seek or obtain the trial court’s permission before filing his amended petition. The trial court granted Smith’s cross motion for summary judgment, rendered a final judgment that Mensa-Wilmot take nothing, and dismissed the lawsuit with prejudice.

Jurisdiction

In his third and fourth issues, Mensa-Wilmot asserts this Court does not have jurisdiction because the trial court’s judgment is not a final judgment. Specifically, Mensa-Wilmot contends his amended petition added theories of recovery that were not addressed by Smith’s motion for summary judgment.

A. Law Concerning Final and Ap-pealable Judgments

An appeal may generally be taken only from a final judgment that disposes of all pending parties and claims. Fresh Coat, Inc. v. Life Forms, Inc., 125 S.W.3d 765, 767 (Tex.App.-Houston [1st Dist.] 2003, no pet.). “[A] judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex.2001). Language that a plaintiff take nothing by his claims, or that the case is dismissed, shows finality if there are no other claims by other parties. Lehmann, 39 S.W.3d at 205.

B. Analysis

Here, three months after the submission of the summary judgment motions, Mensa-Wilmot filed an amended original petition adding claims for statutory and common law fraud and unjust enrichment. Mensa-Wilmot did not obtain the trial court’s permission before filing his amended petition.

Smith did not amend its summary judgment to address Mensa-Wilmot’s new claims. Approximately one week after Mensa-Wilmot filed his amended petition, the trial court signed an order stating,

On this date, came for consideration Plaintiffs Motion for Summary Judgment and Defendant’s Cross-Motion for summary Judgment in the above-referenced matter. Upon consideration and review, the Court determines that Plaintiffs Motion for summary Judgment is DENIED and DEFENDANT’S Cross-Motion for Summary Judgment is GRANTED. Plaintiff shall take nothing in this lawsuit. This case is dismissed with prejudice. This is a final judgment.

The judgment expressly states it is final. It also expressly orders that Mensa-Wil-mot take nothing by his lawsuit and expressly dismisses the case. We conclude that this judgment states with unmistakable clarity that it is a final order. See Lehmann, 39 S.W.3d at 205 (stating order with language that plaintiff take nothing by his claims, or that case is dismissed, shows finality if there are no other claims by other parties).

Although the amended petition added claims not addressed by Smith’s motion for summary judgment, that fact does not make the trial court’s judgment interlocutory because the final judgment plainly resolved the entire case. As the Supreme Court of Texas explains,

[A]n order can be final and appealable when it should not be. For example, an order granting a motion for summary judgment that addressed all of the plaintiffs claims when it was filed but did not address claims timely added by amendment after the motion was filed may state unequivocally that final judgment is rendered that the plaintiff take nothing by his suit. Granting more relief than the movant is entitled to makes the order reversible, but not interlocutory.

Lehmann, 39 S.W.3d at 204.

To support his contention that the judgment in this case is not final, Mensa-Wilmot cites Coastal Terminal Operators v. Essex Crane Rental Corp., 133 S.W.3d 335 (Tex.App.-Houston [14th Dist.] 2004, order). In Coastal Terminal Operators, the trial court held a hearing on a motion for summary judgment. 133 S.W.3d at 336. After the hearing and without seeking the trial court’s permission, the nonmovant filed a pleading asserting additional claims for the first time. Id. Approximately one week after the additional claims were filed, the trial court granted the summary judgment. Id. The court of appeals, citing the Texas Supreme Court in Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex.2001), held that a summary judgment is not final unless it disposes of pleadings that were filed after the hearing, but before judgment. Coastal Terminal Operators, 133 S.W.3d at 338.

Coastal Terminal Operators and Guajardo are distinguishable from this case because the language of those orders did not indicate finality, as compared to this order that dismisses the lawsuit with a take-nothing judgment. See Guajardo, 46 S.W.3d at 864 (“There is no other language in th[e] judgment that indicates finality....”); Coastal Terminal Operators, 133 S.W.3d at 338 (judgment did not dispose of all claims with “unmistakable clarity”). Here, the order incorporates the unmistakably clear language that Leh-mann identifies as manifesting an intent that the judgment be final, specifically, that Mensa-Wilmot take nothing and that his ease is dismissed with prejudice. See Lehmann, 39 S.W.3d at 205.

We overrule Mensa-Wilmot’s third and fourth issues.

Summary Judgment on Fraud and Unjust Enrichment Claims

In his fifth issue, Mensa-Wilmot contends the trial court erred by “granting a final summary judgment when there were other theories of recovery asserted that had not been challenged in [Smith’s] cross-motion for summary judgment.” Mensa-Wilmot asserts the trial court erred by granting summary judgment in favor of Smith because Smith did not amend its cross-motion for summary judgment to address the claims for statutory fraud, common-law fraud, and unjust enrichment pleaded in Mensa-Wilmot’s amended petition. Smith responds that the trial court did not err by failing to consider Mensa-Wilmot’s amended pleadings filed three months after the submission of the summary judgment and without permission of the trial court.

A. Amended Pleadings and Summary Judgments

Rule 63 of the Texas Rules of Civil Procedure provides,

Parties may amend their pleadings ... by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex.R. Civ. P. 63. A summary judgment hearing is a trial for purposes of rule 63. Wheeler v. Yettie Kersting Mem’l Hosp., 761 S.W.2d 785, 787 (Tex.App.-Houston [1st Dist.] 1988, writ denied); see Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.1995) (applying rule 63 to amendment filed before summary judgment hearing). In addition to the time period for filing an amended petition in rule 63, rule 166a provides that a trial court shall render summary judgment if the pleadings and summary judgment evidence “on file at the time of the hearing, or filed thereafter and before judgment with permission of the court” show the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c) (emphasis added).

Although subject to the first requirement of rule 63 that an amendment must be made “at such time as not to operate as a surprise to the opposite party,” a party may file an amended pleading outside seven days of the trial date freely, without leave of court. Tex.R. Civ. P. 63; Sosa, 909 S.W.2d at 895; see also Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 47 S. Tex. L. Rev. 409, 418 (2006). If an amended pleading is filed within seven days but before the hearing, leave of court is required. See Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envtl. Servs., L.P., 226 S.W.3d 514, 520 (Tex.App.-Houston [1st Dist.] 2006, no pet.). An appellate court, however, will presume leave was granted “when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise.” Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex.1996); see also Hittner, supra at 418-19 (citing Kiefer, 920 S.W.2d at 276 and 9029 Gateway S. Joint Venture v. Eller Media Co., 159 S.W.3d 183, 187 (Tex.App.-El Paso 2004, no pet.)).

Unlike amended pleadings filed within seven days before the summary judgment hearing, there is no presumption that leave was granted when amended pleadings are filed after the summary judgment hearing. After the summary judgment hearing but before the trial court renders judgment, a party must obtain the leave of the court to amend a pleading. Hittner, supra, at 419 (citing Tex.R. Civ. P. 166a(c) and Hussong v. Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ)); see also Austin v. Countrywide Homes Loans, 261 S.W.3d 68, 75 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (“Once the hearing date for a motion for summary judgment has passed, the movant must secure a written order granting leave in order to file an amended pleading.”); C/S Solutions, Inc. v. Energy Maintenance Senices Group LLC, 274 S.W.3d 299, 307 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (stating party that attempted to amend pleadings “needed leave of court under Rule 63 because the summary-judgment hearing had already been held”); see also Automaker, Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 745 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (“A nonmovant must secure the court’s permission if it files the amended pleading after the summary judgment hearing.”) (Emphasis in original). In contrast to the presumption we apply to an amended pleading filed within seven days of the hearing, “[u]nless the record shows that the trial court granted leave to file the pleading, the appellate court will assume leave was denied.” Austin, 261 S.W.3d at 76.

Amended pleadings in the different categories described above are treated differently. A proper amended pleading supersedes and replaces prior pleadings. FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008) (citing Tex.R. Civ. P. 65). Thus, generally, once a plaintiff has timely amended his petition, or has done so with leave of court, to plead additional claims, a defendant is not entitled to a summary judgment on the plaintiffs entire case, unless the defendant amends or supplement its motion for summary judgment to address the claims asserted in the amended pleading. Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Smith v. Atl. Richfield Co., 927 S.W.2d 85, 88 (Tex.App.-Houston [1st Dist.] 1996, writ denied)).

However, if a plaintiff seeks to amend in the seven-day period before the summary judgment hearing and leave to amend was denied, or the presumption that leave was granted does not apply, the amended petition is not timely and should not be considered by the trial court. McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex.App.-Dallas 2001, pet. denied); Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 875-76 (Tex.App.-Austin 2001, pet. denied). The same is true of a pleading filed after the summary judgment hearing without leave of court; we do not consider an amended pleading filed without the trial court’s permission after the summary judgment hearing. See Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 743, 745 (Tex.App.-Houston [14th Dist.] 1995, no writ) (stating “we cannot consider appellants’ pleadings which were admittedly filed after the motion for summary judgment hearing”); W. Tex. Gas, Inc. v. 297 Gas Co., 864 S.W.2d 681, 685 (Tex.App.-Amarillo 1993, no writ) (holding trial court did not err by failing to consider amended petition filed after hearing without leave of court). Because an amendment that is not timely and not allowed by the trial court does not supersede the prior petition, the summary judgment movant need not amend or supplement his motion to address those claims. See Taylor, 905 S.W.2d at 745 (citing Tex.R. Civ. P. 166a(c) and holding trial court did not err by granting summary judgment when new, unaddressed claims were added by amended petition filed after hearing without leave of court); W. Tex. Gas, Inc., 864 S.W.2d at 685 (same); see also Hittner, supra, at 419-20 (stating movant need not amend motion for summary judgment to address amended pleadings if summary judgment filed after court-ordered deadline to amend pleadings).

B. Analysis

Here, Mensa-Wilmot filed his amended petition three months after the summary judgment hearing. We presume that leave to amend was not granted unless the record shows that the trial court granted leave. See Austin, 261 S.W.3d at 76. Nothing in the record indicates the trial court granted leave, or that Mensa-Wilmot sought leave. We, therefore, cannot consider the claims added by Mensa-Wilmot’s amended petition. See Taylor, 905 S.W.2d at 745; W. Tex. Gas, Inc., 864 S.W.2d at 685.

We hold the trial court did not err by rendering summary judgment in favor of Smith because Mensa-Wilmot’s additional claims were contained in an amended petition that was filed without the trial court’s permission after the summary judgment hearing had been held. See Taylor, 905 S.W.2d at 745; W. Tex. Gas, Inc., 864 S.W.2d at 685.

We overrule Mensa-Wilmot’s fifth issue.

Summary Judgment on Breach of Contract Claim

In his second issue, Mensa-Wilmot contends the trial court erred by granting Smith’s cross-motion for summary judgment because the summary judgment evidence raised a fact issue concerning whether he properly exercised his options under the stock option agreement.

In the motion for summary judgment that the trial court granted, Smith contends that Mensa-Wilmot has no evidence of the elements of “breach of contract” or “conditions precedent to performance” of his breach of contract claim, and that he conclusively negated the same two elements. Specifically, Smith asserts “Mensa-Wilmot must prove that before the effective date of his resignation from [Smith] on December 10, 2005, he sent [Smith’s] Corporate Secretary a signed written notice of his intention to exercise the stock options under the NQSOAs.” Smith states, “Mensa-Wilmot failed to exercise his options in writing under the NQSOAs plain terms” and Mensa-Wilmot “failed to comply with the procedures in [the] NQSOAs.” Mensa-Wilmot responds to the motion for summary judgment by asserting that a fact issue exists concerning whether he timely exercised his stock options and summary judgment for Smith was therefore improper.

A. Applicable Law

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment is proper only when the movant establishes there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. App. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. In reviewing a motion for summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence, 164 S.W.3d at 661.

We review a no-evidence summary judgment by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex.App.-Houston [1st Dist.] 2003, no pet.). A trial court improperly renders a no-evidence summary judgment if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). Furthermore, a party seeking to recover under a contract bears the burden of proving that all conditions precedent have been satisfied. CDI Eng’g Group, Inc. v. Admin. Exch., Inc., 222 S.W.3d 544, 548 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (citing Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 283 (Tex.1998)). In an option contract, strict compliance with the provisions of the option contract is required. Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex.App.-Texarkana 2008, no pet.); Tex. State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 10-11 (Tex.App.-Houston [1st Dist.] 1994, no writ).

B. Analysis

Mensa-Wilmot contends his affidavit suffices to raise a fact issue concerning whether he timely exercised his stock options. Specifically, Mensa-Wilmot relies on the following statement in his affidavit: “During the second week of November 2005,1 sent a letter to Smith International, Inc. (Smith) from Dubai (UAE) informing Smith of my intention to exercise my stock options.”

In reviewing the evidence to determine whether summary judgment in favor of Smith was proper, we must accept all Mensa-Wilmot’s evidence as true and disregard contrary evidence and inferences. See Valence, 164 S.W.3d at 661; Patriacca, 98 S.W.3d at 306. However, even accepting Mensa-Wilmot’s affidavit as true, it does not address whether he exercised the options in the manner specified by the NQSOAs. The NQSOAs required “written notice signed by Employee” to be “delivered to the Corporate Secretary of the Company or sent by certified mail addressed to the Company (for the attention of the Corporate Secretary) at its corporate office in Houston, Texas.” Furthermore, to exercise the options, Mensa-Wil-mot was required to “state the number of shares of Common Stock as to which the option is exercised and shall be accompanied by the full amount of the purchase price of such shares.” Mensa-Wilmot’s affidavit does not address whether he (1) delivered the notice or sent it via certified mail, (2) stated the number of shares he wished to purchase under the option, or (3) tendered the full amount of the purchase price. Because Mensa-Wilmot did not present summary judgment evidence that he exercised his stock option as required by the NQSOAs, we hold there is no fact issue and the trial court did not err by rendering summary judgment in favor of Smith. See Besteman, 272 S.W.3d at 784 (requiring strict compliance with provisions of option contract); Tex. State Optical, Inc., 882 S.W.2d at 10-11 (same).

Mensa-Wilmot asserted at oral argument that there is an ambiguity concerning the proper manner to exercise stock options and, therefore, his affidavit raises a fact issue concerning whether he properly exercised his stock options. In support, Mensa-Wilmot identifies two documents introduced as summary judgment evidence. The first, a prospectus covering the NQSOAs contained a section entitled “Manner of Exercise.” This section provides, in pertinent part,

All options and stock appreciation rights are exercisable by written notice to us specifying the number of shares being purchased, accompanied in the case of the exercise of an option by payment in full in cash or its equivalent acceptable to us.

In addition, Mensa-Wilmot identifies a document from Smith entitled “Exercising Your Nonqualified Stock Options.” This document provides, in pertinent part, that the options may be exercised by “[c]om-plet[ing] and signing] a Notice of Exercise letter (each time you exercise) specifying the number of shares you wish to purchase, and how you would like the stock to be issued (i.e. to you or your account with a broker).”

Mensa-Wilmot does not assert that either of these documents are part of the NQSOAs. The cover page of the prospectus expressly states it is not an offer to sell common stock of Smith. Furthermore, the second document from Smith expressly provides,

This document is a summary only and is not meant to replace or amend the terms of the Smith International, Inc. Long-Term Incentive Plan, as amended, or executed Stock Option Agreements. Please refer to those documents if there are any questions.

Because these documents are not part of the NQSOAs, they do not alter the way in which Mensa-Wilmot was required to exercise his stock options under the NQSOAs. Assuming these two documents were part of the NQSOAs, Mensa-Wil-mot’s affidavit, in which he asserts he sent a letter exercising the options, fails to show he complied with the two documents because the documents required that he specify the number of shares and include payment for the shares.

In addition, Mensa-Wilmot contends the e-mails introduced as summary judgment evidence raise a fact issue on his claims. Specifically, Mensa-Wilmot contends, “Multiple e-mail exchanges were made between [Mensa-Wilmot] and [Smith’s] employees regarding the stock options before December 10, 2005.” Mensa-Wilmot also asserts,

[Mensa-Wilmot] opened an account with Merrill Lynch specifically for the stock options that he had elected to exercise after speaking with Jean Aynn Presten-bach so that his stock options proceeds could be deposited there. The reasonable inference is that the exercise of option letter had been received by [Smith] in a timely manner.

Mensa-Wilmot is mistaken. The email from Merrill Lynch to Smith on November 22 — and later forwarded to Mensa-Wilmot by Prestenbach and Oliver — specifically referred to “restricted stock,” not “stock options” as Mensa-Wilmot contends. Specifically, the Merrill Lynch email stated, “IMPORTANT NOTICE REGARDING YOUR RESTRICTED STOCK GRANT [.] Merrill Lynch has been selected as the broker to assist you in establishing an account to facilitate the settlement process on the Restricted Stock vesting event on December 7, 2005.” (Emphasis added). Oliver’s e-mail referred to a “stock grant,” not a “stock option.” Because the emails do not refer to the stock options as Mensa-Wilmot contends, but to the separate restricted stock units awarded under the Plan, the evidence does not raise an issue concerning Mensa-Wilmot’s exercise of his options.

We hold the evidence does not raise a fact issue concerning whether Mensa-Wil-mot exercised his stock options as required by the terms of the NQSOAs.

We overrule Mensa-Wilmot’s second issue.

In his first issue, Mensa-Wilmot asks, “Did the trial court err in granting the appellee’s cross-motion for summary judgment?” Within this issue, Mensa-Wilmot presents no independent ground for reversal. Rather, Mensa-Wilmot expressly states “the first issue — whether the trial court erred in granting summary judgment — is common to all other issues raised. The more narrow issues behind this broad issue are discussed individually throughout this brief.” (Citation omitted). Because it presents no independent ground or argument for reversal, we overrule Mensa-Wilmot’s first issue.

Conclusion

We affirm the trial court’s judgment.

      . There are exceptions to the general rule that are not applicable to this case. For example, if the amended petition essentially reiterates previously pleaded causes of action and a ground asserted in a motion for summary judgment conclusively negates a common element of both the newly and previously pleaded claims, or the original motion is broad enough to encompass the newly asserted claims, an amended or supplemental motion for summary judgment is not necessarily needed. Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 387 (Tex.App.-Fort Worth 2003, pet. denied); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 671-72 (Tex.App.-Houston [1st Dist.) 1996, no writ); Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502 (Tex.App.-Houston [1st Dist.] 1995, no writ)).