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DMSJ - STANDARD FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT

To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to
judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c);
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it
must either (1) disprove at least one essential element of the plaintiff's cause of action or (2) plead and
conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's
cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404
(Tex. App.--Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a disputed, material
fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must
be indulged in favor of the non-movant and any doubts must be resolved in its favor. Id. at 549.


A traditional summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when the movant
establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215-16. Summary judgment is proper on claims for which the
movant is the defendant only when the movant negates at least one element of each of the plaintiff's causes of
action or when the movant conclusively establishes each element of an affirmative defense. Science Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); see also Rhone-Poulenc Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999). If the movant conclusively negates an element of each of the plaintiff's causes of action or
conclusively establishes its own cause of action the burden shifts to the non-movant to respond with evidence
raising a genuine issue of material fact that would preclude summary judgment. See Rhone-Poulenc, 997
S.W.2d at 222-23. In deciding whether there is a disputed material fact precluding summary judgment, evidence
favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the
non-movant, and any doubts must be resolved in favor of the non-movant. Knott, 128 S.W.3d at 215.
Hahn v. Love (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Higley)
(real estate law , judgment lien, cloud on title, constructive trust counterclaim, intervention, satisfaction of
judgment)
A no-evidence summary judgment motion asserts that no evidence exists as to at least one essential element of
the non-movant's claims on which the non-movant would have the burden of proof at trial. Bendigo v. City of
Houston, 178 S.W.3d 112, 114 (Tex. App.-- Houston [1st Dist.] 2005, no pet.) (citing Jackson v. Fiesta Mart,
Inc., 979 S.W.2d 68, 70-71 (Tex. App.-- Austin 1998, no pet.)). The trial court must grant the motion unless the
non-movant produces summary judgment evidence that raises a genuine issue of material fact. Tex. R. Civ. P.
166a(i); Southwest Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). 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." Tex. R. Civ. P. 166a(i), 1997
cmt.; Mott v. Red's Safe and Lock Servs., Inc., 249 S.W.3d 90, 97 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
Moreover, "[p]aragraph (i) 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." Tex. R. Civ. P. 166a(i), 1997 cmt.; Brown v. Hearthwood II Owner's 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 must conclusively negate at least one essential element of each of
the plaintiff's causes of action, or conclusively establish each element of an affirmative defense.  Shirvanian v.
DeFrates, 161 S.W.3d 102, 106 (Tex. App.- Houston [14th Dist.] 2004, pet. denied).


AFFIRM TC JUDGMENT: Opinion by Judge Wilson
Before Judge Wilson, Justices Alcala and Hanks
01-06-00094-CV Sabrina Fleming a/n/f of Gregory Lawson and Gregory Lawson v. Astroworld, GP LLC--Appeal
from 152nd District Court of Harris County
AFFIRM TC JUDGMENT: Opinion by Justice Taft

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Under the standard of review for traditional summary judgment, the moving party must establish that no material
fact issue exists, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson
Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

Summary judgment for a defendant is proper when the defendant negates at least one element of each of the
claimant's theories of recovery. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the
defendant produces evidence warranting summary judgment, the plaintiff must present evidence that raises a
fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In an appeal from a take-nothing summary
judgment, the reviewing court should view all evidence in the light most favorable to the nonmovant and indulge
every reasonable inference in the nonmovant's favor. Id.


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