law-summary-judgment-on-the-pleadings-no-evidence-attached | plea to the jursidiction | motion to dismiss |
special exceptions | opportunity to amend |  

SUMMARY JUDGMENT WARRANTED ON THE PLEADINGS, WHICH ESTABLISH
FEDERAL PREEMPTION OF STATE-LAW CLAIMS       
Edwards argues Blue Cross's motion for summary judgment was insufficient because it failed to attach
summary judgment evidence. A defendant may “move with or without supporting affidavits for a summary
judgment in his favor as to all or any part” of a claim against him. Tex. R. Civ. P. 166a(b). A party may also
move for traditional summary judgment based on the pleadings and judicial admissions of the opposing party.
See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Washington v. City of Houston, 874 S.W.2d 791, 794
(Tex. App.-Texarkana 1994, no writ) (“where the plaintiff's pleadings themselves establish the lack of a valid
cause of action, such as the fact that the statute of limitations has run, or if the pleadings allege facts that, if
proved, establish governmental immunity, pleadings alone can justify summary judgment and special
exceptions are not required”). Pleadings may be used as summary judgment evidence when they contain
statements rising to the level of admitting a fact or conclusion which is directly adverse to that party's theory
or defense of recovery. Judwin Props., Inc. v. Griggs and Harrison, 911 S.W.2d 498, 504 (Tex. App.-Houston
[1st Dist.] 1995, no writ)
09-0209          
DRALVES GENE EDWARDS, M.D. v. BLUE CROSS BLUE SHIELD OF TEXAS, A DIVISION OF HEALTH CARE
SERVICE CORP.; from Dallas County; 5th district (05-07-01281-CV, ___ SW3d ___, 12-19-08, pet. denied
June 2009) (
federal preemption, Medicare reimbursement dispute brought under state law theories, summary
judgment on the pleadings without evidence) (We conclude Edwards's pleadings affirmatively show his state
law claims are “inextricably intertwined” with Medicare benefits determinations, and are preempted by the
Medicare Act. Thus, we affirm the trial court's judgment.
Conclusion
We conclude Edwards's pleading and the record establish his claims are preempted as a matter of law and
this impediment to his suit cannot be corrected by amending his pleadings.   See Footnote 14  Because this
ground is sufficient to support the trial court's summary judgment, we need not address the remaining sub-
issues raised in Edwards's appeal. Tex. R. App. P. 47.1. We overrule Edwards's sole issue on appeal.

Although Edwards argues his suit should not be dismissed without the opportunity to amend, he did amend
his petition in response to the motion for summary judgment and fails to explain how he can amend his
pleading to avoid preemption of his claims.