law-no-evidence-motion-for-summary-judgment-vs-traditional-motion

law-no-evidence-vs-traditional-summary-judgment-motion

NO-EVIDENCE VS. TRADITIONAL MOTION FOR SUMMARY JUDGMENT

To prevail on a no-evidence motion for summary judgment, the movant must establish that
there is no evidence to support an essential element of the non-movant’s claim on which the
nonmovant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); Hahn v. Love,
321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see
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
present evidence raising a genuine issue of material fact as to each of the elements
specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006);
Hahn, 321 S.W.3d at 524. “The movant ‘must be specific in challenging the evidentiary
support for an element of a claim or defense; paragraph (i) does not authorize conclusory
motions or general no-evidence challenges to an opponent’s case.’” Hahn, 321 S.W.3d at
524 (quoting TEX. R. CIV. P. 166a(i), 1997 cmt.).
“The trial court must grant the motion unless the nonmovant produces more than a scintilla
of evidence raising a genuine issue of material fact on the challenged elements.” Flameout
Design & Fabrication, 994 S.W.2d at 834. More than a scintilla of evidence exists if 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).
However, “[w]hen the evidence offered to prove a vital fact is so weak as to do no more
than create a mere surmise or suspicion of its existence, the evidence is no more than a
scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex. 1983). In determining whether a material fact question exists, we may consider both
direct and circumstantial evidence. Ridgway, 135 S.W.3d at 601.
To prevail on a traditional summary judgment motion, the movant has the burden of proving
that he is entitled to judgment as a matter of law and that there are no genuine issues of
material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995). Paragraph (i), governing no-evidence summary judgment motions, “does not apply
to ordinary motions for summary judgment under paragraphs (a) or (b), in which the movant
must prove that it is entitled to summary judgment by establishing each element of its claim
or defense as a matter of law.” Hahn, 321 S.W.3d at 524 (quoting TEX. R. CIV. P. 166a(i),
1997 cmt.); Brown v. Hearthwood II Owners Ass’n, Inc., 201 S.W.3d 153, 157–58 & n.7
(Tex. App.—Houston [14th Dist.] 2006, pet. denied).
A defendant moving for summary judgment based on his own affirmative defense must
conclusively establish each element of that defense as a matter of law. See Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Therefore, to avoid summary judgment
in favor of a defendant on the defendant’s affirmative defense, a plaintiff must raise a fact
issue as to at least one element of the defense. See id.; City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
In reviewing the trial court’s summary judgment, we take all evidence favorable to the non-
movant as true, and indulge every reasonable inference in his favor. Sci. Spectrum, 941 S.
W.2d at 911.

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