law-no-evidence-MSJ-not-proper-to-get-affirmative-relief

NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT - WHEN IT CAN NOT BE USED:
FOR LITIGANT TO GET JUDGMENT ON HIS/HER OWN CLAIM

In Ripkowski's motion for summary judgment, he asserts that Marshall is liable to him for conversion because
Marshall failed to comply with statutory prerequisites to obtain title to Ripkowski's motorcycle.  Ripkowski did not
address the
elements of his conversion claim or provide any evidence to support his conversion claim.  Instead,
Ripkowski identified certain provisions of Texas Property Code section 70.006 on which he contends Marshall
could not produce proof of compliance.

This portion of Ripkowski's motion is plainly a no-evidence motion for summary judgment.  But Texas Rule of
Civil Procedure 166a(i) permits a party to move for summary judgment only "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) (emphasis added).  Ripkowski, as the plaintiff, had the burden
of proof on his conversion claim.  Consequently, he was not entitled to a no-evidence summary judgment on
that claim.  See Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.-Houston [14th Dist.] 2003, no pet.)
(explaining that “
a party may never properly move for no-evidence summary judgment to
prevail on its own claim or affirmative defense for which it has the burden of proof
").  As
this court explained in Nowak, if a party were able to file a no-evidence motion on its own cause of action, it
would be tantamount to allowing the party to prevail without ever proving the elements of the claim.  Nowak, 110
S.W.3d at 680.  Such a result is not permitted.  Id. at 680-81.[1]

Because Ripkowski did not meet the summary-judgment burden on his conversion claim, we sustain Marshall's
issue.  See id. at 680-81; see also Reyes v. Saenz, 269 S.W.3d 675, 676-77 (Tex. App.-San Antonio 2008, no
pet.) (
plaintiff not entitled to no-evidence summary judgment on its own claims); Kelly v.
Brown, 260 S.W.3d 212, 217-18 (Tex. App.-Dallas 2008, pet. denied) (appellees not entitled to no-evidence
summary judgment on their own affirmative defense).
Marshall v. Ripkowski (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(motor cycle repair dispute,
mechanics lien, no-evidence summary judgment  not proper on a party's own claim
for affirmative relief)
REVERSED AND REMANDED: Opinion by
Justice Brown    
Before Justices Seymore, Brown and Sullivan  
14-08-00090-CV Vernon Marshall d/b/a Marshall Motor Sports v. Jerry Ripkowski   
Appeal from County Civil Ct at Law No 4 of Harris County
Trial Court Judge:
Roberta Anne Lloyd
Although it is preferable for the non-movant to provide a response explaining why the trial court should deny
the motion, no response is required because “the motion should not have been filed at all."  See Nowak, 110 S.
W.3d at 680 & n.2.  It is sufficient that Marshall raised the issue on appeal.  See id. at 679.