law-no-evidence-motion-for-summary-judgment
NO-EVIDENCE MSJ UNDER TEXAS LAW: Tex. R. Civ. P. 166a (i)
Under Rule 166a(i), a party may move for a no-evidence summary judgment 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 trial court
must grant the motion unless the respondent produces summary judgment evidence raising a
genuine issue of material fact. Id. The respondent is “not required to marshal its proof; its
response need only point out evidence that raises a fact issue on the challenged elements.”
TEX. R. CIV. P. 166a(i) cmt. In reviewing a trial court’s order granting a no-evidence summary
judgment, we consider the evidence in the light most favorable to the respondent and disregard
all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003). Thus, a no-evidence summary judgment is improperly granted if the respondent
brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.
Id. at 751; see TEX. R. CIV. P. 166a(i).
After adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a claim or defense. See Tex. R. Civ. P. 166a(i). We
review the granting of a motion for no-evidence summary judgment under the same legal sufficiency standard used to
review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Ogg v. Dillard's, Inc., 239 S.
W.3d 409, 416 (Tex. App.-Dallas 2007, pet. denied). Our inquiry focuses on whether the nonmovant produced more than
a scintilla of probative evidence to raise a fact issue on the challenged elements. King Ranch, Inc., 118 S.W.3d at 751.
Evidence is no more than a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion" of a fact.
Id. Where, as here, the trial court's order granting summary judgment does not specify the grounds upon which it was
granted, we will affirm the judgment if any of the theories advanced are meritorious. See Provident Life & Acc. Ins. Co. v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003); Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 577 (Tex. App.-Dallas
2007, no pet.).
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT - TRCP 166a(i)
After adequate time for discovery, a party without the burden of proof at trial may move for summary
judgment on the ground that there is no evidence of one or more essential elements of a claim or
defense. See Tex. R. Civ. P. 166a(i). We review the granting of a motion for no-evidence summary
judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Ogg v. Dillard's, Inc., 239 S.W.3d 409, 416 (Tex.
App.-Dallas 2007, pet. denied). Our inquiry focuses on whether the nonmovant produced more than a
scintilla of probative evidence to raise a fact issue on the challenged elements. King Ranch, Inc., 118 S.
W.3d at 751. Evidence is no more than a scintilla if it is "so weak as to do no more than create a mere
surmise or suspicion" of a fact. Id. Where, as here, the trial court's order granting summary judgment
does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories
advanced are meritorious. See Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003);
Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 577 (Tex. App.-Dallas 2007, no pet.).
A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a
pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine
issue of material fact supporting each element contested in the motion. Tex. R. Civ. P. 166a(i);
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006).
STANDARD OF REVIEW ON APPEAL. When reviewing a no-evidence summary judgment,
we “review the evidence presented by the motion and response in the light most favorable to the
party against whom the summary judgment was rendered, crediting evidence favorable to that
party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not.” Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)).
MUST STATE ON WHICH ELEMENT THERE IS NO EVIDENCE. It is well settled that a trial
court cannot grant a summary judgment motion on grounds not presented in the motion. Brewer
& Pritchard, P.C., 73 S.W.3d at 204; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912
(Tex. 1997). Our no-evidence summary judgment rule similarly requires that the moving party
identify the grounds for the motion:
After adequate time for discovery, a party without presenting summary judgment evidence may
move for summary judgment 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.
The motion must state the elements as to which there is no evidence. The 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). We have further explained that “[t]he
motion 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.” Id. at Comment–1997.
RATIONALE FOR REQUIREMENT THAT GROUND / ELEMENT BE STATED.
The underlying purpose of this requirement “is to provide the opposing party with adequate
information for opposing the motion, and to define the issues for the purpose of summary
judgment.” Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978). We have
analogized this purpose to that of the “fair notice” pleading requirements of Rules 45(b) and
47(a). Id. at 772-73; see also Tex. R. Civ. P. 45(b) (requiring a party’s pleadings to give “fair
notice” to the opponent); Tex. R. Civ. P. 47(a) (requiring a plaintiff’s pleadings to give “fair
notice of the claim involved”).
Timpte Industries, Inc. v. Gish, No. 08-0043 (Jun. 5, 2009) (Medina)
(product liability, Supreme Court finds no defect in design of trailer from which worker fell)
TIMPTE INDUSTRIES, INC. AND TIMPTE INC. v. ROBERT GISH AND PINNACOL ASSURANCE; from Hale
County; 7th district (07-06-00215-CV, ___ SW3d ___, 11-30-07) The Court reverses the court of
appeals' judgment and renders judgment.
Justice Medina delivered the opinion of the Court.
We conclude that Timpte’s motion gave fair notice to Gish that it was challenging both whether the
alleged defect rendered the trailer unreasonably dangerous and whether the defect was the producing
cause of Gish’s injury. Timpte’s motion was not the type of “conclusory motion[] or general no-evidence
challenge[] to an opponent’s case” barred by Rule 166a(i). The issues of design defect and producing
cause were clearly raised in Timpte’s motion and joined in Gish’s response.