Texas Judiciary Online - HTML Opinion

The Texas Supreme = Court has=20 held that attaching evidence to a motion or including other = traditional=20 summary-judgment grounds in the motion does not foreclose the = movant from=20 asserting no-evidence grounds in the motion. See Binur v. = Jacobo, 135 S.W.3d 646, 650B51 (Tex. 2004). = Likewise,=20 our high court has concluded that, while it would be helpful for = the=20 movant to use headings to clearly delineate which summary-judgment = grounds=20 are based on Rule 166a(i), such clarity is not required for the = assertion=20 of a no-evidence ground. See id. According to = the Texas=20 Supreme Court, if the movant clearly sets forth its no-evidence = grounds=20 and meets Rule 166a(i)=3Ds requirements, then = the movant=20 has asserted these no-evidence grounds. See id. = Disagreeing with the court of appeals=3Ds conclusion that the = movant in=20 Binur had asserted only traditional summary-judgment = grounds, the=20 Texas Supreme Court held that the movant sufficiently asserted a=20 no-evidence ground attacking the essential element of proximate = cause=20 because A[movant=3Ds] motion for summary = judgment=20 asserted that there was no evidence of proximate = cause.@ Id. at = 651. =20 Registered Teams satisfied Rule 166a(i) and asserted a no-evidence = ground=20 in which it attacked the essential element of duty. See = id.=20 (concluding movant satisfied Rule 166a(i) and asserted no-evidence = ground=20 by stating in motion that there was no evidence of an essential = element of=20 plaintiff=3Ds claim); Alaniz = v. Rebello=20 Food & Beverage, L.L.C., 165 S.W.3d 7, 11B12 (Tex. = App.CHouston [14th Dist.] = 2005, no=20 pet.) (holding movant satisfied Rule 166a(i) and asserted = no-evidence=20 grounds by stating two essential elements of the = plaintiffs=3D claims and asserting = that=20 there was no evidence of these elements). Thus, we find no = merit in=20 the Chrismons=3D rehearing arguments = premised=20 on Registered Teams=3Ds purported failure = to assert a=20 no-evidence ground attacking duty.^{^[2]} =20 The = Chrismons=3D motion for rehearing = is=20 denied.

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/s/ Kem=20 Thompson Frost

Justice

Motion for Rehearing Overruled and = Supplemental=20 Majority Opinion filed January 10, 2008.

Panel consists of Justices Fowler, = Frost, and=20 Edelman.^*=20 (Edelman, J., dissents without opinion on rehearing).

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^{^[1]} =20 The Chrismons also state that Registered Teams admitted the = existence of=20 duty in its motion; however, we addressed this issue on original=20 submission. See Chrismon v. Brown, No. = 14-05-00822-CV,=20 CS.W.3dC,C, 2007 WL 2790352, at *8 & n.12 = (Tex.=20 App.CHouston [14th Dist.] Sept. 27, 2007, no = pet. h.).=20 The Chrismons also state that Sterner v. Marathon Oil Co. = would=20 provide the standard of review as to any traditional = summary-judgment=20 ground that Registered Teams asserted against the essential = elements of=20 the Chrismons=3D claims. See 767 S.W.2d = 686, 690=20 (Tex. 1989). This is incorrect; rather, Sterner deals = with a=20 legal-sufficiency challenge to an adverse fact finding as to which = the=20 appellant had the burden of proof at trial. See = id. The=20 Texas Supreme Court has stated that, in reviewing a = summary-judgment de=20 novo, appellate courts must consider all the evidence in the light = most=20 favorable to the nonmovant, crediting evidence favorable to the = nonmovant=20 if reasonable jurors could and disregarding contrary evidence = unless=20 reasonable jurors could not. Mack Trucks, Inc. v. = Tamez, 206=20 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine = issue of=20 fact if reasonable and fair-minded jurors could differ in their=20 conclusions in light of all of the summary-judgment = evidence. =20 Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, = 756=20 (Tex. 2007).

^{^[2]} =20 In their final argument on rehearing, the Chrismons assert that, = even if=20 Registered Teams asserted a no-evidence ground as to duty, this = court has=20 affirmed that motion on a ground not asserted in Registered=20 Teams=3Ds motionCthe inherent-risk doctrine. We = addressed=20 this argument on original submission. See Chrismon, = 2007 WL=20 2790352, at *8 & n.12. We stand by this=20 analysis.

^* =20 Senior Justice Richard H. Edelman sitting by=20 = assignment.