law-NE-MSJ-no-evidence-motion-for-summary-judgment  | Tex. R. Civ. P. 166a(i) | vs traditional MSJ

NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT  (NE-MSJ)  

After an adequate time for discovery, a party may move for no-evidence summary judgment on the ground
that no evidence exists of one or more essential elements of a claim on which the adverse party bears the
burden of proof at trial. TEX. R. CIV. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian
Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.). The burden then shifts to the
nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the
motion. Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial
court must grant the motion unless the nonmovant presents more than a scintilla of evidence raising a fact
issue on the challenged elements. Flameout Design & Fabrication, 994 S.W.2d at 834; see also Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) ("More than a scintilla of evidence exists
when the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.'" (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d
497, 499 (Tex. 1995))). To determine if the nonmovant has raised a fact issue, we review the evidence in
the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so,
and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848
(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We indulge every reasonable inference
and resolve any doubts in the nonmovant's favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).

A no-evidence motion for summary judgment must be granted if (1) the moving party asserts that there is
no evidence of one or more essential elements of a claim or defense on which the adverse party would
have the burden of proof at trial, and (2) the respondent produces no summary-judgment evidence raising
a genuine issue of material fact on those elements.  See Tex. R. Civ. P. 166a(i).  A no-evidence summary
judgment is improperly granted when the respondent brings forth more than a scintilla of probative
evidence that raises a genuine issue of material fact. See id.; Coastal Conduit & Ditching, Inc. v. Noram
Energy Corp., 29 S.W.3d 282, 284 (Tex. App.- Houston [14th Dist.] 2000, no pet.).


REVIEW OF NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT ON APPEAL (NE-MSJ)

A no-evidence summary judgment motion may be urged on the ground that “there is no evidence of one or
more essential elements of a claim or defense on which an adverse party would have the burden of proof
at trial.” TEX. R. CIV. P. 166a(i). The motion “must state the elements as to which there is no evidence.” Id.

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of
an essential element of the adverse party’s cause of action or affirmative defense. TEX. R. CIV. P. 166a(i);
Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence
summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills
Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.).

Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a
genuine issue of material fact on each of the challenged elements. TEX. R. CIV. P. 166a(i); see Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not be
properly granted if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of
material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of
evidence exists when the evidence “‘rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.’” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)
(quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

When reviewing a no-evidence summary judgment motion, we assume that all evidence favorable to the
nonmovant is true and indulge every reasonable inference and resolve all doubts in favor of the
nonmovant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Because the trial court’s order granting Verity’s no-evidence summary judgment motion does not specify
the grounds upon which the trial court relied, we must affirm the summary judgment if any of the grounds in
the summary judgment motion are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872–73 (Tex. 2000).

Kahng v. Verity (Tex.App.- Houston [1st Dist.] July 31, 2008)(Jennings)
(
auto PI, death, negligence, man running into freeway, NE-SJ, failure to preserve error)

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