law-no-evidence-MSJ-evidence-to-avoid summary judgment |
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
A no-evidence motion for summary judgment generally shifts the burden of proof to the non-movant to raise a
genuine issue of material fact. E.g., McCoy v. Rogers, 240 S.W.3d 267, 271 (Tex. App.—Houston [1st Dist.] 2007,
pet. denied). The non-movant need not, however, respond to a no-evidence summary-judgment motion filed with
respect to claims or affirmative defenses for which the movant has the burden of proof. Nowak v. DAS Inv. Corp.,
110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Barraza v. Eureka Co., 25 S.W.3d 225, 231
(Tex. App.—El Paso 2000, pet. denied).
National Fire Insurance Co. v. State and County Mutual Fire Ins. Co. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)
(Massengale)(insurance litigation)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00845-CV National Fire Insurance Company of Hartford, as Assignee of Kelvin Ray Gatlin
v. State and County Mutual Fire Insurance Company
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn Wood
MOVANT NOT TO ATTACH EVIDENCE TO NO-EVIDENCE MOTION
Because, in this opinion, we indeed find that judgment was properly granted on the no-evidence grounds, we will
consider only the evidence Brown produced in response to the no-evidence motion. See City of Keller v. Wilson,
168 S.W.3d 802, 825 (Tex. 2005) (explaining that the rule governing no-evidence summary judgments does not
permit evidence to be filed in support of such a motion; thus, consideration is limited to the evidence contrary to
the motion).
NON-MOVANT MUST COME FORTH WITH EVIDENCE ON THE ELEMENT(S) ON WHICH NE-
MOTION IS BASED:
Rule 166a(i), governing no-evidence motions for summary judgment, states that "[t]he court must grant the motion
unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Tex. R.
Civ. P. 166a(i) (emphasis added); see also City of Keller, 168 S.W.3d at 825 (explaining that Rule 166a(i) does not
permit evidence to be filed in support of a no-evidence motion; thus, consideration is limited to the evidence
contrary to the motion); Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 654 (Tex. App.-Houston [14th Dist.]
2008, no pet.) (“If the movant has identified specific elements he claims lack evidence, we must then determine de
novo whether the non-movant has produced more than a scintilla of probative evidence to raise a genuine issue of
material fact."). It is not incumbent upon a trial court or an appellate court to search exhibits attached to other
motions for evidence which might raise a material issue of fact. See, e.g., Bynum v. Prudential Residential Servs.,
L.P., 129 S.W.3d 781, 791 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (refusing to consider affidavit attached to
motion for continuance in evaluating no-evidence summary judgment); Hight v. Dublin Veterinary Clinic, 22 S.W.3d
614, 619 (Tex. App.-Eastland 2000, pet. denied) (refusing to consider evidence attached to motion when
considering no-evidence summary judgment). Because Brown did not attach or specifically cite to his deposition in
his response to the no-evidence motion and, in fact, specifically denies any reliance thereon in his reply brief, we
will not consider Brown's deposition in reviewing the grant of no-evidence summary judgment. Instead, we confine
our review to the evidence Brown produced in response to the no-evidence motion.
Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)
(legal malpractice, breach of fiduciary duty) (SJ for defendant affirmed)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00592-CV Willard E. Brown III v. George Maynard Green and Sheehy, Lovelace & Mayfield, P.C. Appeal
from 74th District Court of McLennan County (name of judge not shown on docket)
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