Summary Judgments in Texas: State and Federal Practice

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SUMMARY JUDGMENTS IN TEXAS:

STATE AND FEDERAL PRACTICE



JUDGE DAVID HITTNER



LYNNE LIBERATO



INTRODUCTION .............................................................................................. 5

PART 1: STATE SUMMARY JUDGMENT PRACTICE ......................................... 8

I. PROCEDURE ........................................................................................ 8

A. Motion for Summary Judgment ................................................... 9

1. General Requirements and Uses ........................................... 9

a. Specification Requirement ................................................ 9

b. Categories of Summary Judgments ................................. 10

2. Traditional Motion for Summary Judgment ........................ 13

3. No-Evidence Motion for Summary Judgment ..................... 15

4. Combined Traditional and No-Evidence Motions for

Summary Judgment ............................................................. 18

5. Drafting a Motion for Summary Judgment ......................... 19

B. Pleadings .................................................................................. 22

1. Amended Pleadings ............................................................. 22

2. Unpleaded Claims or Affirmative Defenses ........................ 25

3. Pleading Deficiencies and Special Exceptions ................... 25

a. Special Exceptions ......................................................... 26

b. Effect of Amendment and Failure to Amend ................... 28

C. Time for Filing Motion for Summary Judgment ....................... 29

1. Traditional Summary Judgment .......................................... 29

2. No-Evidence Motion for Summary Judgment ..................... 30

D. Deadlines for Filing Motion for Summary Judgment ............... 33

E. Deadlines for Response............................................................. 35

 The Authors acknowledge and thank Jeremy Dunbar, Associate, Bracewell LLP,

Houston, Texas; B.A., University of Houston, 2010; J.D., South Texas College of Law Houston,

2015, for his assistance in the preparation of this Article.

 United States District Judge, Southern District of Texas; Formerly Judge, 133d District

Court of Texas, Houston, Texas; B.S., New York University, 1961; J.D., New York University

School of Law, 1964.

 Partner, Haynes and Boone, LLP, Houston, Texas; B.S., Sam Houston State University,

1974; M.S., Texas A&M—Commerce, 1977; J.D., South Texas College of Law, 1980; President,

State Bar of Texas, 2000–2001.

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F. Movant’s Reply: Purpose and Deadlines.................................. 37

G. Service ....................................................................................... 38

H. Continuances ............................................................................ 40

1. General Principles .............................................................. 40

2. Factors Considered in Granting Continuances .................. 42

I. Hearing/Submission .................................................................. 45

J. Rulings and Judgment ............................................................... 47

K. Findings of Fact and Conclusions of Law ................................ 48

L. Partial Summary Judgments ..................................................... 49

M. Motions for Rehearing .............................................................. 51

N. Sanctions ................................................................................... 53

II. SUMMARY JUDGMENT EVIDENCE .................................................... 53

A. General Principles .................................................................... 54

1. Reasonable Juror Standard ................................................. 55

2. Time for Filing .................................................................... 56

3. Unfiled Discovery ............................................................... 56

4. Objections to Evidence ........................................................ 58

5. Attach Evidence to Motion for/Response to Summary

Judgment ............................................................................. 63

B. Pleadings as Evidence .............................................................. 64

C. Depositions ............................................................................... 66

D. Answers to Interrogatories and Requests for Admissions ........ 66

1. Evidentiary Considerations ................................................. 66

2. Deemed Admissions ............................................................ 67

E. Documents ................................................................................ 68

1. Attaching Documents to Summary Judgment Motion

and Response ....................................................................... 69

2. Evidentiary Considerations ................................................. 70

3. Authentication of Documents .............................................. 71

a. Authentication of Producing Party’s Documents ............ 71

b. Copies .............................................................................. 72

c. Effect on Summary Judgment Practice ........................... 73

4. Judicial Notice of Court Records ........................................ 73

F. Affidavits and Declarations ...................................................... 74

1. Form of Affidavits and Declarations ................................... 75

2. Procedural Requirements.................................................... 75

3. Substance of Affidavits ........................................................ 78

4. Effect of Improper Affidavits ............................................... 80

5. Sham Affidavits ................................................................... 80

6. Affidavits by Counsel........................................................... 81

G. Other Evidence ......................................................................... 82

H. Expert and Interested Witness Testimony ................................. 83

1. Expert Opinion Testimony................................................... 83

a. Requirements for Expert Witness Testimony .................. 83

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b. Sufficiency of Expert Opinion ......................................... 87

c. Procedural Issues ........................................................... 89

i. The Evidence Supporting the Summary Judgment

Is Evaluated Differently ................................................ 91

ii. The Standard of Review Applied on Appeal Is

Different ......................................................................... 91

iii. In a Summary Judgment Hearing, Oral

Argument Is Typically Not Recorded and Is Not

Considered as Evidence ................................................ 92

(a) Daubert/Robinson Hearing ....................... 92

(b) Deposition of Own Expert ........................ 93

2. Nonexpert, Interested Witness Testimony ........................... 94

III. BURDEN OF PROOF FOR SUMMARY JUDGMENTS ............................. 95

A. Traditional Summary Judgments .............................................. 96

1. Defendant as Movant .......................................................... 96

2. Plaintiff as Movant on Affirmative Claims .......................... 98

3. Affirmative Defenses ........................................................... 98

4. Counterclaims ................................................................... 101

B. No-Evidence Summary Judgments .......................................... 101

1. “Reasonable Juror” Test Applied to No-Evidence

Summary Judgments.......................................................... 103

2. Historical Development .................................................... 104

C. Both Parties as Movants ......................................................... 106

D. Presumptions at Trial ............................................................. 107

IV. RESPONDING TO AND OPPOSING A MOTION FOR SUMMARY

JUDGMENT ...................................................................................... 108

A. Responding: General Principles ............................................. 109

B. Responding to a Traditional Motion for Summary

Judgment ................................................................................. 110

C. Responding to a No-Evidence Summary Judgment Motion .... 110

D. Inadequate Responses ............................................................. 113

V. APPEALING SUMMARY JUDGMENTS .............................................. 114

A. Exception: Both Parties File Motions for Summary

Judgment ................................................................................. 114

B. Exceptions: Governmental Immunity; Media Defendants;

Electric Utilities ...................................................................... 116

C. Exception: Permissive Appeal ................................................ 118

D. Finality of Judgment ............................................................... 119

E. Appellate Standard of Review ................................................. 124

F. Appellate Record ..................................................................... 128

G. Appellate Briefs ....................................................................... 129

H. Actions by Appellate Courts.................................................... 131

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I. Bills of Review ........................................................................ 134

J. Likelihood of Reversal ............................................................ 135

VI. ATTORNEYS’ FEES .......................................................................... 136

A. Reasonableness of Fees .......................................................... 136

B. Proof Requirements ................................................................ 137

C. Summary Judgment Disposition of Attorneys’ Fees ............... 139

D. Attorneys’ Fees on Appeal from Summary Judgment ............. 141

VII. TYPES OF CASES AMENABLE TO SUMMARY JUDGMENT ............... 141

A. Sworn Accounts ....................................................................... 142

1. Requirements for Petition ................................................. 143

2. Answer/Denial ................................................................... 143

3. Summary Judgment ........................................................... 144

B. Suits on Written Instruments ................................................... 146

1. Contracts ........................................................................... 147

2. Deeds ................................................................................. 149

3. Guaranty Instruments........................................................ 149

4. Promissory Notes .............................................................. 150

5. Application of the Parol Evidence Rule ............................ 151

6. Exception to the Parol Evidence Rule ............................... 152

C. Statute of Limitations/Statutes of Repose ................................ 153

D. Res Judicata/Collateral Estoppel ........................................... 157

E. Equitable Actions .................................................................... 159

F. Defamation Actions ................................................................. 159

1. Applicable Law ................................................................. 160

2. Questions of Law ............................................................... 161

3. Plaintiff’s Burden of Showing Actual Malice .................... 162

4. Qualified Privilege ............................................................ 163

G. Governmental Immunity.......................................................... 163

H. Family Law Cases ................................................................... 165

1. Enforceability of Premarital, Marital Property, and

Mediated Settlement Agreements ...................................... 165

2. Interpretation of Divorce Decrees .................................... 166

3. Interpretation or Application of Law ................................ 167

4. Res Judicata/Collateral Estoppel ...................................... 168

5. Characterization of Property ............................................ 168

6. Existence of the Marital Relationship ............................... 169

I. Insurance Matters ................................................................... 169

J. Oil and Gas Cases .................................................................. 171

PART 2: FEDERAL SUMMARY JUDGMENT PRACTICE ................................ 174

I. PROCEDURE FOR SUMMARY JUDGMENTS ...................................... 174

A. Timing ..................................................................................... 175

B. Notice and Hearing ................................................................. 176

C. Deadline to Respond ............................................................... 178

D. Discovery ................................................................................ 179

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II. STANDARDS OF PROOF FOR SUMMARY JUDGMENT MOTIONS ....... 182

A. When the Movant Bears the Burden of Proof ......................... 182

B. When the Movant Does Not Bear the Burden of Proof ........... 183

1. Movant’s Initial Burden .................................................... 183

2. Nonmovant’s Burden ......................................................... 185

III. RESPONDING TO THE MOTION FOR SUMMARY JUDGMENT ............ 186

A. Supreme Court Precedent ....................................................... 186

B. Items in Response .................................................................... 189

IV. SUMMARY JUDGMENT EVIDENCE .................................................. 191

A. Declarations and Affidavits .................................................... 191

B. Documents and Discovery Products ....................................... 193

C. Pleadings ................................................................................ 194

D. Expert Testimony .................................................................... 195

E. Objections to Evidence ........................................................... 200

V. RULE 12(B)(6) MOTION TO DISMISS TREATED AS RULE 56

MOTION FOR SUMMARY JUDGMENT .............................................. 200

VI. APPEALING SUMMARY JUDGMENTS .............................................. 202

A. When Summary Judgments are Appealable ............................ 202

B. Standard of Review on Appeal ................................................ 204

C. The District Court’s Order on Summary Judgment ................ 206

PART 3: STATE AND FEDERAL SUMMARY JUDGMENT PRACTICE—A

COMPARATIVE OVERVIEW ............................................................. 207

I. HISTORY ......................................................................................... 207

II. BURDEN OF PROOF ......................................................................... 208

III. SUBJECT MATTER ........................................................................... 209

IV. DEADLINES ..................................................................................... 209

V. EVIDENCE ....................................................................................... 210

VI. HEARINGS ....................................................................................... 212

VII. ORDERS .......................................................................................... 214

VIII. SUA SPONTE ACTION...................................................................... 215

IX. CONVERSION FROM MOTION TO DISMISS ...................................... 215

X. APPEALABILITY .............................................................................. 216

CONCLUSION ............................................................................................. 217

INTRODUCTION

Summary judgments in Texas were once rare.

However, as Justice

Samuel Alito recently observed, times have changed in Texas and elsewhere:

1. See William V. Dorsaneo III, The History of Texas Civil Procedure, 65 BAYLOR L. REV.

713, 781–82 (2013) (describing Texas courts’ early hostility towards summary judgment practice);

see also William W. Schwarzer et al., THE ANALYSIS AND DECISION OF SUMMARY JUDGMENT

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“Every year the courts of appeals decide hundreds of cases in which they

must determine whether . . . evidence provided by a plaintiff is just enough

to survive a motion for summary judgment or not quite enough.”

Today,

summary judgment practice in Texas state and federal courts has expanded

substantially.

Indeed, the dispositive impact of summary judgment rulings,

together with the procedural changes that have increased the influence of

summary judgments on virtually all categories of litigation,

have led

commentators to characterize summary judgment practice as the “focal

point” of modern litigation.

Some academics have criticized this “litigation

MOTIONS A MONOGRAPH ON RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE 1–4 (Federal

Judicial Center 1991) (describing courts’ early reluctance to embrace summary judgment practice).

2. Salazar-Limon v. City of Houston, 137 S. Ct. 1277, 1277 (2017) (Alito, J., concurring).

3. EDWARD BRUNET ET AL., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE § 4:8

(2017) (discussing the “normalization and perhaps even the bureaucratization” of summary

judgment practice in federal courts); Arthur R. Miller, The Pretrial Rush to Judgment: Are the

“Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding Our Day in Court and

Jury Trial Commitments?, 78 N.Y.U. L. REV. 982, 1049 (2003) (discussing the increased use of

summary judgment motions); cf. Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas

Courts of Appeals, 48 HOUS. L. REV. 993, 1009–11 (2012) (discussing the rate of reversal of

summary judgments in Texas state courts by cause and type of case).

4. See, e.g., Darryl K. Brown, How to Make Criminal Trials Disappear Without Pretrial

Discovery, 55 AM. CRIM. L. REV. 155, 163 (2018) (“Especially in the wake of a trio of 1986 U.S.

Supreme Court decisions, rule changes that made civil summary judgments more likely have been

much-discussed contributors in the demise of civil trials.”); Brooke D. Coleman, The Celotex Initial

Burden Standard and an Opportunity to “Revivify” Rule 56, 32 S. ILL. U. L.J. 295, 295 (2008)

(“Summary judgment, which started as an obscure procedural rule, is now a standard part of the

litigation process. The percentage of federal cases ended by summary judgment increased from

3.7% in 1975 to 7.7% in 2000.”); Arthur S. Leonard, Introduction: Trial by Jury or Trial by Motion?

Summary Judgment, Iqbal, and Employment Discrimination, 57 N.Y.L. SCH. L. REV. 659, 663–64

(2012–2013) (discussing the increased rate of summary judgment dispositions in Title VII cases

following the trilogy); Jason Rathod & Sandeep Vaheesan, The Arc and Architecture of Private

Enforcement Regimes in the United States and Europe: A View Across the Atlantic, 14 U. N.H. L.

REV. 303, 327 (2016) (discussing the influence of summary judgment in modern litigation); Martin

H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57

STAN. L. REV. 1329, 1329–30 (2005) (“Changes in the law of summary judgment quite probably

explain at least a large part of the dramatic reduction in federal trials.”); Suja A. Thomas, Reforming

the Summary Judgment Problem: The Consensus Requirement, 86 FORDHAM L. REV. 2241, 2244

(2018) (“[S]ummary judgment is entrenched in the civil system in the United States.”); cf. Liberato

& Rutter, supra note 3, at 1009–11.

5. Miller, supra note 3, at 1016 (discussing how the unmistakable proliferation in the number

of motions for summary judgment filed, and the high costs often associated with litigating these

motions, has led some jurists to conclude that attorneys are often too quick to engage in summary

judgment practice when clear fact issues exist for trial); Rathod & Vaheesan, supra note 4, at 327

(“Due in part to the trilogy, summary judgment has become the focal point of litigation . . . .”);

Xavier Rodriguez, The Decline of Civil Jury Trials: A Positive Development, Myth, or the End of

Justice as We Now Know It?, 45 ST. MARY’S L.J. 333, 344 (2014); Stephen N. Subrin & Thomas

O. Main, The Fourth Era of American Civil Procedure, 162 U. PA. L. REV. 1839, 1851 (2014).

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focal point”;

others have sung its praises.

Yet, for better or worse, summary

judgment practice has become increasingly important, and the successful

civil practitioner in Texas must be familiar with its complexities.

This Article examines the procedural and substantive aspects of

summary judgment practice by discussing Texas, U.S. Supreme Court, and

Fifth Circuit precedent in light of practice trends and changes in the law.

While it also provides an analytical framework for current Texas state and

federal summary judgment practice, this Article’s primary goal is to serve as

a practical reference for trial and appellate lawyers. It seeks to assist the

reader in understanding the procedural and substantive aspects of obtaining,

opposing, and appealing a summary judgment.

In discussing this influential procedure, this Article proceeds in three

main parts. First, Texas summary judgment practice is examined with an

emphasis on the procedure outlined in Texas Rule of Civil Procedure 166a,

as interpreted by the Texas Supreme Court and Texas courts of appeals. Part

Two focuses on federal summary judgment practice, with a particular

emphasis on the procedures outlined by Federal Rule of Civil Procedure 56

and shaped by the so-called trilogy of cases announced by the U.S. Supreme

Court in its 1986 term—Celotex,

Matsushita,

and Liberty Lobby.

Finally,

6. See, e.g., Arthur R. Miller, McIntyre in Context: A Very Personal Perspective, 63 S.C. L.

REV. 465 (2012) (noting the propensity for today’s judges to use summary judgments to

“inappropriately resolve[] trialworthy disputed fact issues . . . .”); Subrin & Main, supra note 5, at

1895 (criticizing the expansion of summary judgment practice in modern litigation as being

“arguably unconstitutional, probably inefficient, and especially unfair to certain plaintiffs”); Suja

A. Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139 (2007) (arguing that

summary judgment is unconstitutional).

7. See, e.g., Jack Achiezer Guggenheim, In Summary It Makes Sense: A Proposal to

Substantially Expand the Role of Summary Judgment in Nonjury Cases, 43 SAN DIEGO L. REV. 319,

320 (2003) (praising summary judgment as “an efficient and just adjudication mechanism”); David

A. Logan, Juries, Judges, and the Politics of Tort Reform, 83 U. CIN. L. REV. 903, 947 (2015)

(discussing the benefits of an invigorated summary judgment regime to tort reform).

8. See generally DAVID HITTNER ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL: 5TH

CIRCUIT EDITION ch. 14 (The Rutter Grp.-Thomson Reuters 2014) (discussing federal summary judgment

practice); Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal

Practice, 53 HOUS. L. REV. 773 (2015) (discussing summary judgment practice in Texas state and federal

courts); Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal

Practice, 46 HOUS. L. REV. 1379, 1384 (2010) (same)); Judge David Hittner & Lynne Liberato, Summary

Judgments in Texas, 47 S. TEX. L. REV. 409, 413 (2006) (same); Judge David Hittner & Lynne Liberato,

Summary Judgments in Texas, 54 BAYLOR L. REV. 1, 6 (2002) (same); Judge David Hittner & Lynne

Liberato, Summary Judgments in Texas, 34 HOUS. L. REV. 1303, 1308 (1998) (same); Judge David

Hittner & Lynne Liberato, Summary Judgments in Texas, 35 S. TEX. L. REV. 9, 12 (1994) (same); Judge

David Hittner & Lynne Liberato, Summary Judgments in Texas, 20 ST. MARY’S L.J. 243, 246 (1989)

(same); see also 3 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 18

(2d ed. 2018); TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS: PRACTICE, PROCEDURE AND

REVIEW § 1.01, at 1-1 to -2 (3d ed. 2018).

9. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

10. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

11. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

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Part Three offers a comparative overview of state and federal summary

judgment practice, discussing important distinctions between the two

jurisdictions.

As will be apparent throughout each part of this Article, the burden-

shifting framework enunciated by the Court in the trilogy, as well as the

Court’s clarification of Rule 56’s “material fact” standard, not only had

widespread ramifications for federal summary judgment practice, but also

influenced states, including Texas, to amend their own civil rules to provide

for similar procedures.

The undeniable and widespread impact of the trilogy

prompted former Chief Justice William Rehnquist to characterize Celotex as

the most important decision of his tenure.

Indeed, summary judgment

practice may be the most important procedure in the life of many civil cases.

PART 1: STATE SUMMARY JUDGMENT PRACTICE

I. PROCEDURE

Summary judgment practice is procedurally complex. This Section

discusses the basic procedural requirements for filing and opposing summary

judgment motions.

12. See, e.g., Corey M. Dennis, Roadmap to Connecticut Procedure, 83 CONN. B.J. 271, 283

n.60 (2009) (“Celotex has been adopted by rule or court decision in a majority of states . . . .”

(quoting Waste Conversation Techs., Inc. v. Midstate Recovery, LLC, 2008 Conn. Super. LEXIS

3130, at *78 n.19 (Dec. 3, 2008))); David H. Simmons et al., The Celotex Trilogy Revisited: How

Misapplication of the Federal Summary Judgment Standard Is Undermining the Seventh

Amendment Right to a Jury Trial, 1 FLA. A&M U. L. REV. 1, 11 (2006) (“[T]he trilogy and the way

in which it is interpreted and applied not only affects litigation in the federal judicial system, but

also in numerous states.”); Robert W. Clore, Comment, Texas Rule of Civil Procedure 166a(i): A

New Weapon for Texas Defendants, 29 ST. MARY’S L.J. 813, 834 (1998) (“[T]he Trilogy provided

persuasive authority for the addition of the no-evidence motion to Texas summary judgment

practice. Indeed, most commentators agree that Rule 166a(i) was drafted to mirror federal summary

judgment practice.”).

13. Telephone Interview with Aaron Streett, Partner, Baker Botts, Former Law Clerk, Chief

Justice William H. Rehnquist, U.S. Supreme Court (Sept. 24, 2013). This is a notable declaration,

especially considering that his tenure as Chief Justice included such seminal cases as United States

v. Morrison, City of Boerne v. Flores, United States v. Lopez, and South Dakota v. Dole. United

States v. Morrison, 529 U.S. 598 (2000) (commerce clause); City of Boerne v. Flores, 521 U.S. 507

(1997) (Congress’s civil rights enforcement power); United States v. Lopez, 514 U.S. 549 (1995)

(commerce clause); South Dakota v. Dole, 483 U.S. 203 (1987) (Congress’s spending power). Chief

Justice Rehnquist’s revelation is borne out by the empirical evidence, as gathered by Professor

Adam Steinman in a 2010 examination of the most highly cited Supreme Court cases. According to

Professor Steinman’s research, the summary judgment trilogy of cases were, individually, the three

most frequently cited Supreme Court decisions of all time, with Celotex and Liberty Lobby both

garnering more than 120,000 federal citing references as of 2010. Adam N. Steinman, The Pleading

Problem, 62 STAN. L. REV. 1293, 1357 app. (2010).

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A. Motion for Summary Judgment

The summary judgment process begins with the filing of a motion for

summary judgment.

Unless a party to the suit files a motion for summary

judgment, no court has the power to render a summary judgment.

Even

though it properly grants a summary judgment to one party, a court may not

grant summary judgment to another party who did not move for summary

judgment or join in the moving party’s motion.

1. General Requirements and Uses

a. Specification Requirement

A motion for summary judgment must rest on the grounds expressly

presented in the motion.

Unless a claim or affirmative defense is

specifically addressed in the motion for summary judgment, a court cannot

grant summary judgment on it.

Granting a summary judgment on a claim

not addressed in the summary judgment motion, as a general rule, is

reversible error.

Similarly, a court of appeals commits reversible error when

it sua sponte raises grounds to reverse a summary judgment that were not

briefed or argued in the appeal.

The motion must state, with specificity, the grounds upon which the

movant is relying.

The rationale for this requirement is to force the movant

14. TEX. R. CIV. P. 166a(a)–(b), (i). Prior to the January 1, 1988, amendments to the Texas

Rules of Civil Procedure, this Rule was designated 166-A rather than 166a. See TEX. R. CIV. P.

166a historical notes.

15. Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.—Corpus Christi 2001, no pet.);

Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 116 (Tex. App.—Waco 1999, no pet.).

16. McAllen Hosps., L.P. v. State Farm Mut. Ins. Co. of Tex., 433 S.W.3d 535, 542 (Tex.

2014).

17. ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 546–46 (Tex. 2017);

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (quoting Westbrook

Constr. Co. v. Fid. Nat’l Bank of Dall., 813 S.W.2d 752, 754–55 (Tex. App.—Fort Worth 1991,

writ denied)).

18. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002); Sci. Spectrum,

Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (limiting summary judgment to those grounds

expressly presented in the motion).

19. Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam). There are

exceptions to this general rule. “Although a trial court errs in granting a summary judgment on a

cause of action not expressly presented by written motion, . . . the error is harmless when the omitted

cause of action is precluded as a matter of law by other grounds raised in the case.” G & H Towing

Co. v. Magee, 347 S.W.3d 293, 297–98 (Tex. 2011) (per curiam).

20. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015).

21. TEX. R. CIV. P. 166a(c); Brewer & Pritchard, 73 S.W.3d at 204; Stiles v. Resolution Trust

Corp., 867 S.W.2d 24, 26 (Tex. 1993); Great-Ness Prof’l Servs., Inc. v. First Nat’l Bank of

Louisville, 704 S.W.2d 916, 918 (Tex. App.—Houston [14th Dist.] 1986, no writ) (misclassifying

the specific ground for summary judgment as a “suit on a sworn account” was sufficient to defeat

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to define the issues and give the nonmovant adequate notice for opposing the

motion.

To determine if the grounds are expressly presented in the motion,

neither the court nor the movant may rely on separate supporting briefs or

summary judgment evidence.

Nonetheless, the motion and brief in support

may be combined. As a matter of persuasion, this practice likely is the most

effective.

A trial court may not grant more relief than requested in the motion for

summary judgment.

Because a party can move for partial summary

judgment, omission of a claim from a motion for summary judgment does

not waive the claim.

An amended or substituted motion for summary judgment supersedes

any preceding motion.

A ground contained in an initial summary judgment

motion, but not included in a later amended motion, may not be used to

support the affirmance of a summary judgment on appeal.

b. Categories of Summary Judgments

Summary judgments in state court are divided into two categories. A

“traditional” summary judgment is based on the movant’s contention that no

genuine issue exists for any material fact and that the movant is entitled to

judgment as a matter of law.

A “no-evidence” summary judgment is based

summary judgment, even though the affidavit in support and the balance of the motion for summary

judgment correctly alluded to a cause of action based upon a breach of a lease agreement).

22. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009); see also McConnell, 858

S.W.2d at 343–44 (stating that by requiring movant to expressly set forth grounds in the summary

judgment motion, the nonmovant has the grounds for summary judgment narrowly focused and

does not have to argue every ground vaguely referred to in the motion).

23. McConnell, 858 S.W.2d at 340–41.

24. Walton v. City of Midland, 24 S.W.3d 853, 857 (Tex. App.—El Paso 2000, pet. denied),

abrogated on other grounds by In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex. App.—El Paso

2003, no pet.); see also Said v. Sugar Creek Country Club, No. 14-17-00079-CV, 2018 WL

4177859, at *6 (Tex. App.—Houston [14th Dist.] Aug. 31, 2018, pet. filed) (mem. op.) (holding

that the trial court did not grant more relief than requested—when the movant did not mention her

allegation of gross negligence in the motion for summary judgment—because the non-movant could

not recover exemplary damages after the movant proved as a matter of law that non-movant could

not prevail on her underlying negligence claim).

25. McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam).

26. Dall. Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 231 (Tex. App.—Dallas 2000, pet.

denied); see also Padilla v. LaFrance, 907 S.W.2d 454, 459 (Tex. 1995) (stating that a motion for

summary judgment would have to be considered an amended or substituted version to supersede

the previous motion).

27. State v. Seventeen Thousand & No/100 Dollars U.S. Currency, 809 S.W.2d 637, 639

(Tex. App.—Corpus Christi 1991, no writ) (explaining that an amended motion for summary

judgment “supplants the previous motion, which may no longer be considered”).

28. TEX. R. CIV. P. 166a(c) (which does not specifically use the term “traditional” summary

judgment, but that term is the commonly use short-hand description); see infra Part 1.I.A.2

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on the movant’s contention “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.”

To determine whether a motion requests a

traditional or no-evidence summary judgment, the courts rely on the record

to determine the nature of a summary judgment motion, regardless of whether

the movant asserts a no-evidence or traditional motion for summary

judgment.

Motions for summary judgment may be based on the evidence or the

absence of evidence. Regardless of its burden of proof at trial, either party

may file a motion for summary judgment by establishing each element of its

claim or defense.

The party without the burden of proof also may file a

motion for summary judgment urging that there is no evidence to support the

other party’s claims or affirmative defenses.

A party with the burden of

proof should not file a no-evidence summary judgment on its claims or

defenses. Because it has the burden of proof on a summary judgment based

on an affirmative defense, a defendant may not pursue a no-evidence

summary judgment on its affirmative defense.

A summary judgment motion may also be used when the evidence, or

lack of evidence, is not the issue in dispute. This type of summary judgment

is classified as a type of “traditional” summary judgment. Summary

judgment is proper when the parties do not dispute relevant facts.

Where

“the issues raised are based on undisputed facts, the reviewing court may

determine the questions presented as a matter of law.”

For example, in Allen

(discussing traditional motions for summary judgment); infra Part 1.III.A (discussing burden of

proof for traditional summary judgments).

29. TEX. R. CIV. P. 166a(i) (the name of the heading for this Rule 166a.i. subsection is “No-

Evidence Motion”); see infra Part 1.I.A.3 (discussing no-evidence motions for summary

judgments); infra Part 1.III.B (discussing no-evidence summary judgment burden of proof).

30. See, e.g., State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S.

Currency, 390 S.W.3d 289, 292 (Tex. 2013) (considering a motion for summary judgment under

standards for a traditional motion, even though the movant’s language appeared to assert a no-

evidence motion); Binur v. Jacobo , 135 S.W.3d 646, 651 (Tex. 2004) (treating a no-evidence

summary judgment as a traditional motion for summary judgment).

31. See infra Part 1.III (discussing burden of proof for summary judgments).

32. See infra Part 1.III.B (discussing burden of proof for no-evidence summary judgments).

33. Elmakiss v. Rogers, No. 12-09-00392-CV, 2011 WL 3715700, at *9 (Tex. App.—Tyler

Aug. 24, 2011, no pet.) (mem. op.) (citing Judge David Hittner & Lynne Liberato, Summary

Judgments in Texas, 47 S. TEX. L. REV. 409, 415 (2006)); Franks v. Roades, 310 S.W.3d 615, 621–

22 (Tex. App.—Corpus Christi 2010, no pet.) (citing Judge David Hittner & Lynne Liberato,

Summary Judgments in Texas: State and Federal Practice, 46 HOUS. L. REV. 1379, 1388–89

(2010)); Mills v. Pate, 225 S.W.3d 277, 290 (Tex. App.—El Paso 2006, no pet.). But see Cone v.

Fagadau Energy Corp., 68 S.W.3d 147, 156 n.4 (Tex. App.—Eastland 2001, pet. denied) (declaring

that a movant may move for no-evidence summary judgment on a question-of-law issue on which

it does not bear the burden of proof).

34. Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000).

35. Lavigne v. Holder, 186 S.W.3d 625, 627 (Tex. App.—Fort Worth 2006, no pet.).

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Keller Co. v. Foreman, the supreme court upheld a summary judgment

determining the duties owed by a general contractor as a result of an allegedly

dangerous condition created by the contractor’s work.

Summary judgments frequently are used to construe a statute.

Statutory construction is a question of law that is reviewed de novo.

example of statutory construction determined by summary judgment is

Sommers v. Sandcastle Homes.

In it, the supreme court determined a

question of first impression on the question of whether all notice is

extinguished with the expunction order on a notice of lis pendens. In Curtis

v. Anderson, the court interpreted Section 1.108 of the Texas Family Code

to determine that an agreement concerning the return of an engagement

ring must be in writing to be enforceable.

In Exxon Corp. v. Emerald Oil

& Gas Co., the court determined that the Natural Resources Code created

a private cause of action for damages resulting from statutory violations.

And in Loftin v. Lee, the court construed the Equine Activity Limitation

of Liability Act to find limited liability of a riding guide for recovery for

injuries sustained by a rider when her horse bolted during a trail ride.

Patel v. Texas Department of Licensing and Regulation, the supreme court

reversed a summary judgment granted in a declaratory judgment action to

determine that a cosmetology scheme for commercial eyebrow threaders

violated the substantive due course of law and therefore was

unconstitutional.

Similarly, summary judgments may also be used to determine legal

questions. For example, in SCI Texas Funeral Services. v. Nelson, the

supreme court determined that negligent mishandling of a corpse is a legal

36. Allen Keller Co. v. Foreman, 343 S.W.3d 420, 425–26 (Tex. 2011).

37. See, e.g., State v. Morello, 547 S.W.3d 881, 885–86 (Tex. 2018) (construing section 7.101

of the Texas Water Code to determine that an environmental regulation applicable to a “person,”

did not allow an individual to use the corporate form as a shield when he or she has personally

participated in conduct that violates that statute); AHF-Arbors at Huntsville I, LLC v. Walker Cty.

Appraisal Dist., 410 S.W.3d 831, 836–39 (Tex. 2012) (construing section 11.182 of the Texas Tax

Code to determine whether a community housing organization must have legal title to property to

qualify for an exemption).

38. Cadena Commercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318,

325 (Tex. 2017).

39. 521 S.W.3d 749 (Tex. 2017).

40. Curtis v. Anderson, 106 S.W.3d 251, 254–56 (Tex. App.—Austin 2003, pet. denied).

41. Exxon Corp. v. Emerald Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010); see also PAJ,

Inc. v. Hanover Ins. Co., 243 S.W.3d 630, 636–37 (Tex. 2008) (determining the effect on coverage

when an insured fails to timely notify its insurer of a claim, but the insurer suffers no harm as a

result).

42. Loftin v. Lee, 341 S.W.3d 352, 355–60 (Tex. 2011).

43. 469 S.W.3d 69, 73 (Tex. 2015).

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duty where mental anguish damages may be available, and that no

contractual relationship is required to recover for those damages.

Summary judgments may be used to construe the meaning of contract

provisions.

They may also be used to resolve certain jurisdictional claims.

In moving for or responding to a summary judgment, it is important

to distinguish whether the summary judgment sought is a traditional or

no-evidence summary judgment because different burdens of proof and

standards of review apply, and the standards for timing of the motion are

different.

The fact that a movant attaches evidence to its motion based

on subsection (a) or (b) of Texas Rule of Civil Procedure 166a (traditional

summary judgment) does not foreclose it from also asserting that there is

no evidence of a particular element pursuant to subsection (i) (no-

evidence summary judgment).

In fact, it may be advisable.

2. Traditional Motion for Summary Judgment

To obtain relief through a traditional motion for summary judgment,

the movant must establish that no issue of material fact exists and that it

is entitled to judgment as a matter of law.

A defendant who moves for

summary judgment must either disprove at least one element of each of

the plaintiff’s causes of action or plead and conclusively establish each

essential element of any affirmative defense, thereby rebutting the

plaintiff’s causes of action.

An issue is conclusively established “if

44. SCI Tex. Funeral Servs. v. Nelson, 540 S.W.3d 539, 546 (Tex. 2018).

45. See, e.g., Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661–62 (Tex. 2005)

(construing the meaning of a certain notice provision of a commonly used oil and gas operating

agreement); see also infra Part 1.VII.B (discussing summary judgments in suits on written

instruments).

46. See generally Rebecca Simmons & Suzette Kinder Patton, Plea to the Jurisdiction:

Defining the Undefined, 40 ST. MARY’S L.J. 627, 638–39, 681 (2009).

47. See Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d 482, 486–87 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). A traditional summary judgment is not subject to the same

restrictions as a no-evidence summary judgment, which may not be granted until an adequate time

for discovery has passed. See TEX. R. CIV. P. 166a(a), (i); infra Part 1.V.F (discussing standards of

review on appeal); infra Part 1.I.C (discussing timing of filing a motion for summary judgment).

48. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

49. See infra Part 1.I.A.3 (discussing no-evidence motions for summary judgment).

50. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009); SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (per

curiam); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see infra Part 1.III.A

(discussing burden of proof for traditional summary judgments).

51. Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W. 3d 254, 257 (Tex. 2017); Cathey v. Booth,

900 S.W.2d 339, 341 (Tex. 1995) (per curiam).

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reasonable minds could not differ about the conclusion to be drawn from

the facts in the record.”

If the movant’s motion and summary judgment evidence facially

establish the movant’s right to judgment as a matter of law, the burden

shifts to the non-movant to raise a genuine, material fact issue sufficient

to defeat summary judgment.

A fact is material when it “affects the

ultimate outcome of the suit under the governing law.”

“A material fact

issue is ‘genuine’ only if the evidence is such that a reasonable jury could

find the fact in favor of the nonmoving party.”

In deciding whether there is a disputed fact issue, the court reviews

the evidence in the light most favorable to the nonmovant, crediting

favorable evidence if reasonable jurors could do so, and disregarding

contrary evidence unless reasonable jurors could not.

A plaintiff must

show entitlement to prevail on each element of the cause of action, except

the amount of damages.

The evidence raises a genuine issue of fact if

“reasonable and fair-minded jurors could differ in their conclusions in

light of all” the summary judgment evidence.

Summary judgment may also be appropriate when there is a mixed

question of law and fact. For example, in Helix Energy Solutions Group,

Inc. v. Gold, the supreme court determined that a case involving an injured

employee who had been working on a ship did not fall under the Jones

Act because the vessel involved was not a “vessel in navigation.”

While

recognizing that analysis of the issue of “vessel in navigation” will often

involve fact issues, none were present in this case.

Thus, the court

applied the law to the undisputed material facts to determine that the ship

52. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017) (citing

Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998)).

53. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23–24 (Tex. 2000) (per

curiam); see infra Part 1.I.V.B (discussing responding to a traditional motion for summary

judgment).

54. Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 11 (Tex. App.—Fort Worth 2002, no

pet.) (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex. App.—Houston [14th Dist.]

1999, no pet.)).

55. Id. at 11–12.

56. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); see Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing City of Keller v. Wilson,

168 S.W.3d 802, 827 (Tex. 2005)).

57. See, e.g., Rivera v. White, 234 S.W.3d 802, 805–06 (Tex. App.—Texarkana 2007, no

pet.); Fry v. Comm’n for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex. App.—Houston [14th

Dist.] 1998, pet. denied); Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 297

(Tex. App.—Dallas 1994, no writ); Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 876 (Tex.

App.—Dallas 1990, no writ).

58. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

59. Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 444 (Tex. 2017).

60. Id. at 439.

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was not in navigation and therefore the Jones Act did not apply to the

plaintiff.

As noted earlier, summary judgment is appropriate when reasonable

minds cannot differ.

In those instances, the issue of intent becomes a

question of law.

Otherwise, intent is a question of fact for the jury’s

determination.

3. No-Evidence Motion for Summary Judgment

A court’s granting of a no-evidence summary judgment is essentially a

pretrial directed verdict.

Texas Rule of Civil Procedure 166a(i), which

provides for no-evidence summary judgments, requires much less from the

movant than when moving for a traditional summary judgment.

“Under

Rule 166a(i), a party 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

movant need not produce any evidence supporting its no-evidence motion.

Instead, the mere filing of a proper motion shifts the burden to the nonmovant

to come forward with enough evidence to raise a genuine issue of material

fact.

If the non-movant does not, the court must grant the motion.

While it need not be detailed, the no-evidence summary judgment

motion must meet certain requirements. First, the movant must identify the

grounds for the motion.

The motion also must state the elements for which

there is no evidence.

A defendant’s motion should state the elements of the

61. Id. at 442.

62. Logan v. Mullis, 686 S.W.2d 605, 608 (Tex. 1985).

63. Id.

64. Id.; see Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005).

65. Hernandez v. De La Rosa, 172 S.W.3d 78, 80–81 (Tex. App.—El Paso 2005, no pet.)

(citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 HOUS. L. REV.

1303, 1356 (1998)).

66. See infra Part 1.III.B (discussing burden of proof for no-evidence summary judgments).

67. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

68. TEX. R. CIV. P. 166a(i); Home State Cty. Mut. Ins. Co. v. Horn, No. 12-07-00094-CV,

2008 WL 2514332, at *2 (Tex. App.—Tyler June 25, 2008, pet. denied) (mem. op.) (citing Judge

David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 HOUS. L. REV. 1303, 1356

(1998)); Branson v. Spiros Partners Ltd., No. 04-07-00007-CV, 2007 WL 4547502, at *2 (Tex.

App.—San Antonio Dec. 28, 2007, no pet.) (mem. op.) (citing Judge David Hittner & Lynne

Liberato, Summary Judgments in Texas, 34 HOUS. L. REV. 1303, 1356 (1998)).

69. Home State Cty. Mut. Ins. Co., 2008 WL 2514332, at *2; see also infra Parts 1.III.B, IV.C

(discussing burden of proof for no-evidence summary judgments and how to respond to them,

respectively).

70. TEX. R. CIV. P. 166a(i).

71. Id.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

72. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017) (citing

TEX. R. CIV. P. 166a(i)); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see

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plaintiff’s cause of action and specifically challenge the evidentiary support

for an element of that claim.

For example, in a negligence case, it is

sufficient to state that there is no evidence of duty, breach, or causation.

is not sufficient to argue that the plaintiffs “have no evidence of any element

of this cause of action” and then listing two elements “[b]y way of

example.”

This statement is sufficient only to challenge the listed elements,

not all elements of the cause of action.

Likewise, a plaintiff can challenge boilerplate affirmative defenses alleged

in the defendant’s answer by using a no-evidence summary judgment.

Second, the motion cannot be conclusory or generally allege that there

is no evidence to support the claims.

In other words, a motion that merely

states that there is no evidence to support the other party’s claim is

insufficient. For example, a no-evidence motion is too general if it states:

“[T]here is absolutely no evidence to support [plaintiff’s] assertions that

[defendant] committed a wrongful foreclosure . . . .”

The underlying

purpose of the requirement that the motion be specific, not conclusory, is to

provide the nonmovant “with adequate information for opposing the motion,

and to define the issues.”

In Timpte Industries, Inc. v. Gish, the supreme court

applied a “fair notice” standard to determine whether a motion for no-evidence

summary judgment was sufficient.

The court allowed that the degree of

specificity required depends on the case.

It determined that a motion was

sufficient that stated that “[p]laintiff has presented no evidence of a design

also Smith v. Lagerstam, No. 03-05-00275-CV, 2007 WL 2066298, at *19 (Tex. App.—

Austin July 19, 2007, no pet.) (mem. op.) (Patterson, J., dissenting) (citing Judge David

Hittner & Lynne Liberato, Summary Judgments in Texas, 47 S. TEX. L. REV. 409, 416

(2006)).

73. TEX. R. CIV. P. 166a cmt.—1997.

74. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 436 (Tex. App.—Houston [14th Dist.]

1999, no pet.).

75. Hansen, 525 S.W.3d at 671, 696 (Tex. 2017).

76. Id. at 695–96.

77. See infra Sec. A.3. (Affirmative Defenses).

78. Smith, 2007 WL 2066298, at *19.

79. Abraham v. Ryland Mortg. Co., 995 S.W.2d 890, 892 (Tex. App.—El Paso 1999, no pet.);

see also Meru v. Huerta, 136 S.W.3d 383, 386–87 (Tex. App.—Corpus Christi 2004, no pet.) (“Rule

166a(i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s

case.”).

80. Timpte Indus., Inc., 286 S.W.3d at 311 (analogizing this purpose to the “fair notice”

pleading requirements of Rules 45(b) and 47(a)).

81. Id. In relying on the fair notice standard, the supreme court in Timpte Industries, Inc.

appears to overrule courts of appeals’ opinions that refuse to extend the fair notice standard to

determine whether a motion for no-evidence summary judgment is sufficient, including the

following: Holloway v. Tex. Elec. Util. Constr., Ltd., 282 S.W.3d 207, 215 (Tex. App.—Tyler 2009,

no pet.); Fieldtech Avionics & Instruments, Inc. v. Component Control.com, Inc., 262 S.W.3d 813,

824 n.4 (Tex. App.—Fort Worth 2008, no pet.); Mott v. Red’s Safe & Lock Servs. Inc., 249 S.W.3d

90, 98 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

82. Timpte Indus., Inc., 286 S.W.3d at 311.

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defect which was a producing cause of his personal injury” and included a

conclusion that essentially repeated the statement of this element with little

additional information.

The court also noted that such a motion might be

insufficient in a complex products or design defect case.

If a no-evidence motion for summary judgment is conclusory, general,

or does not state the elements for which there is no evidence, the motion is

legally insufficient.

Thus, a no-evidence motion that lists each element of the plaintiff’s

claim and then asserts that the plaintiff has no evidence to support “one

or more” or “any” of’ those elements is insufficient to support

summary judgment because this language does not clearly identify

which elements, whether some or all, are challenged.

While no evidence need be attached to a no-evidence motion for

summary judgment, in some instances it may be advisable to do so in light of

summary judgment cases construing City of Keller v. Wilson.

In City of Keller, the supreme court determined that a matter is

conclusively established if reasonable people could not differ concerning the

conclusion to be drawn from the evidence.

Thus, it concluded that “[t]he

standards for taking any case from the jury should be the same, no matter

what motion is used.”

The court noted that appellate courts “do not

disregard the evidence supporting the motion.”

But it added that “although

a reviewing court must consider all the summary judgment evidence on file,

in some cases that review will effectively be restricted to the evidence

contrary to the motion.”

City of Keller has been construed to mean that the

appellate court reviewing a summary judgment “must consider whether

reasonable and fair-minded jurors could differ in their conclusions in light of

all of the evidence presented.”

In other words, the final test for a no-evidence

review is whether the evidence presented would enable reasonable and fair-

83. Id. (alteration in original).

84. Id.

85. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695–96 (Tex. 2017);

see also, Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 287 (Tex. App.—Dallas 2013, pet. denied)

(collecting authorities holding that the issue may be raised for the first time on appeal).

86. City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

87. Id. at 816.

88. Id. at 825.

89. Id. at 824–25 (emphasis omitted).

90. Id. at 825.

91. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam)

(citing City of Keller, 168 S.W.3d at 822–24); see also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,

310 (Tex. 2009) (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)); Wal-Mart

Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam) (citing City of Keller, 168

S.W.3d at 822–23).

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minded people to reach a verdict in favor of the nonmovant in a summary

judgment.

4. Combined Traditional and No-Evidence Motions for Summary

Judgment

Traditional summary judgment motions under Rules 166a(a) or (b) may

be combined with a Rule 166a(i) no-evidence motion.

Combined motions

are referred to as “hybrid” motions for summary judgment.

If a party with

the burden of proof files both a traditional and no-evidence summary

judgment, the court may consider only the traditional motion for summary

judgment. If a party has the burden of proof on claims or defenses, it may not

properly urge a no-evidence summary judgment to challenge those claims or

defenses.

For example, in State Farm Lloyds v. Page, an insurance company

moved for summary judgment on both traditional and no-evidence grounds.

In its traditional summary judgment motion, the insurance company argued

that its insured’s policy afforded no coverage for mold damage to her home

or its contents.

The company argued alternatively that its insured had no

evidence that a covered peril caused the mold contamination or that the

insurance company owed more than it had already paid under the policy.

The trial court denied the no-evidence motion and granted the company’s

traditional motion for summary judgment, which the court of appeals

reversed, holding that the policy did cover mold damage to the home and its

contents.

The supreme court considered both points raised by the combined

motion, reversing the court of appeals in part on the traditional summary

judgment based on principles of contract interpretation and affirming the

denial of the no-evidence summary judgment.

100

Sometimes both type

92. See Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017)

(citing Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998) (“An issue is conclusively established

‘if reasonable minds could not differ about the conclusion to be drawn from the facts in the

record.’”)).

93. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). Binur’s implication that the

movant’s evidence should be disregarded has effectively been supplanted by City of Keller and its

progeny. See supra Part 1.I.A.3.

94. City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 299 (Tex. 2017) (per

curiam).

95. Rubio v. Martinez, Nos. 13-10-00351-CV, 13-10-00352-CV, 2011 WL 3241905, at *2

(Tex. App.—Corpus Christi July 28, 2011, no pet.) (mem. op.) (citing Judge David Hittner & Lynne

Liberato, Summary Judgments in Texas: State and Federal Practice, 46 HOUS. L. REV. 1379, 1388–

89 (2010)).

96. State Farm Lloyds v. Page, 315 S.W.3d 525, 527 (Tex. 2010).

97. Id. at 531.

98. Id.

99. Id. at 527.

100. See id. at 530–33.

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motions result in a loss to the movant. For example, in Painter v. Amerimex

Drilling I, Ltd., the supreme court determined that the defendant was not

entitled to either a no-evidence or traditional motion for summary judgment

on a plaintiff’s vicarious liability claim.

101

5. Drafting a Motion for Summary Judgment

A motion for summary judgment is a “trial on paper.”

102

Thus, the

hallmarks of a winning trial strategy must be translated to the written word.

An empirical study published in 2018 found that the more readable summary

judgment briefs were, the more likely they were to prevail. This finding held,

even after controlling for attorney experience, law firm resources and repeat-

player status before the judge.

103

Even though it is a battle of paper, summary judgment motions should

mirror a good trial presentation to include “a clear theme that grabs the

reader’s attention, a persuasive story, and, most importantly, a clear analysis

of the facts and the law that demonstrates why it should be granted.”

104

It is

particularly important to be clear and concise in state court, where judges

generally do not have law clerks to help them sift through confusing or

lengthy summary judgment pleadings.

The key sections of a summary judgment motion or response are set

forth below.

Title and Introduction: The practice of being clear and concise begins

in the beginning. A noted appellate lawyer advises that the title and

introduction should answer three questions:

1) Is the party filing the motion the claimant seeking a traditional

summary judgment under Rule 166a(a) or a defendant seeking

summary judgment under Rule 166a(b);

2) Is the movant seeking summary judgment on traditional grounds,

no-evidence grounds, or both;

3) Is the movant seeking a final or partial summary judgment?

105

101. Painter v. Amerimex Drilling I. Ltd., 561 S.W.3d 125, 139 (Tex. 2018).

102. Michele L. Maryott, The Trial on Paper: Key Considerations for Determining Whether

to File a Summary Judgment Motion, 35 LITIG. 36, 39 (2009).

103. Shaun B. Spencer & Adam Feldman, Words Count: The Empirical Relationship Between

Brief Writing and Summary Judgment Success, 22 LEGAL WRITING: J. LEGAL WRITING INST. 61,

105–106 (2018).

104. Maryott, supra note 102 at 39.

105. Kent Rutter, Summary Judgment Motions and Responses: A Practical Checklist, 72 THE

ADVOC. 30, 30 (2015).

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Thus, depending on the answers to these questions, the motion might be

entitled “Plaintiff Smith’s Traditional Motion for Partial Summary Judgment

on Liability.”

106

Grounds: Every ground for summary judgment must appear in the

motion itself.

107

In preparing the grounds, a former judge advises using the

familiar: the pattern jury charge.

108

When presenting a no-evidence motion,

use the relevant pattern jury question to persuade the court that it likely would

enter a judgment notwithstanding the verdict in the event the jury were to

make a finding adverse to your position.

109

When drafting a no-evidence section, the movant should specify the

element or elements of the plaintiff’s claim (or defendant’s affirmative

defense) for which there is no evidence. A no-evidence motion that lists the

elements of a claim and then asserts that the plaintiff has no evidence to

support “one or more” or “any of” those elements is insufficient to support

summary judgment because it fails to clearly identify which elements are

challenged.

110

Argument: The length and nature of the argument will depend on the

circumstances of the case. But, under any circumstance, the value of clear,

persuasive writing cannot be overstated.

111

Brevity is a virtue. The longer the

motion and supporting evidence, the more likely it is to convey a subliminal

message that “there must be a fact issue in there somewhere.”

The supreme court endorses the use of headings to delineate the basis

for summary judgment but does not require it.

112

“If a motion clearly sets

forth its grounds and otherwise meets Rule 166a’s requirements, it is

sufficient.”

113

Nonetheless, using headings makes the motion easier to follow

and is good advocacy. Because headings provide guideposts, their use is

106. Id.

107. Traditional summary judgments cannot be upheld upon grounds not raised in the motion

for summary judgment. See, e.g., City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000);

Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). This prohibition applies to no-

evidence summary judgments as well. See Fraud–Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366,

387 (Tex. App.—Fort Worth 2003, pet. denied); Callaghan Ranch, Ltd. v. Killiam, 53 S.W.3d 1, 4

(Tex. App.—San Antonio 2000, pet denied); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140,

147–48 (Tex.App.—Houston [14th Dist.] 2000, pet. denied); see also TEX. R. CIV. P. 166a cmt.

(stating no-evidence motion for summary judgment “must be specific in challenging the evidentiary

support for an element of a claim or defense”).

108. James M. Stanton, How to Prevail at a Summary Judgment Hearing, TEX. LAW., May 21,

2012, at 19.

109. Id.

110. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017).

111. See generally Chad Baruch, Legal Writing: Lessons from the Bestseller List, 43 TEX. J.

BUS. LAW 593 (2009) (advocating the importance of legal writing).

112. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

113. Id.

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particularly important for judges who read pleadings in an electronic

format.

114

In drafting the argument, use summary judgment language. Summary

judgment language refers to phrases such as “there is no evidence,” “as a

matter of law,” and “the summary judgment evidence establishes.” It does

not include indefinite language such as that an event occurred “on or about”

or the “damages were approximately.” Another common mistake is use of

language that, if applied literally, would prevent summary judgment

disposition. Such language includes phrases such as “the preponderance of

the evidence shows,” “the credible evidence demonstrates,” or “the greater

weight of evidence proves.” These types of phrases have no place in summary

judgment practice because each conveys that there is conflicting evidence,

which would prevent rendition of a summary judgment.

Conversely, the nonmovant should use parallel language to show there

is a conflict in the evidence, and phrases such as certain evidence “raises a

fact issue” are appropriate. If in doubt about the proper summary judgment

language, look to opinions dealing with the same issue to borrow proper

language for the issue being briefed.

In most instances, the movant should present its no-evidence motion

first, because when a motion asserts both no-evidence and traditional

grounds, the courts must review the no-evidence grounds first.

115

Upon

review of the response to the no-evidence ground, if the court determines that

the non-movant has failed to produce legally sufficient evidence to meet his

burden, there is no need for it to analyze whether the movant satisfied its

burden under the traditional motion for summary judgment.

116

Evidence: In regard to summary judgment evidence, it need not be set

out or described in the motion to be considered.

117

But, here again, the

practice of making the motion (or response) easy to follow should continue

when reciting the evidence. Even though the rules do not require the motion

or response to cite specific pages or lines of summary evidence, “the wise

practitioner will do more than the rules require, as it is poor advocacy to leave

the court guessing about which portions of the evidence are meant to support

which aspects of the motion.”

118

114. See Robert Dubose, LEGAL WRITING FOR THE REWIRED BRAIN: PERSUADING READERS

IN A PAPERLESS WORLD 61 (2010).

115. Cmty. Health Sys. Prof’l Servs. Corp., 525 S.W.3d at 680 (citing Ford Motor Co. v.

Ridgway, 135 S.W. 3d 598, 600 (Tex. 2004)).

116. Merriman v. XTO Energy, Inc., 407 S.W. 3d 244, 248 (Tex. 2013); Gonzalez v. Ramirez,

463 S.W.3d 499, 502, n.7 (Tex. 2015).

117. Wilson v. Burford, 904 S.W.2d 628, 629 (Tex. 1995) (per curiam).

118. Rutter, supra note 105, at 31.

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22 SOUTH TEXAS LAW REVIEW [Vol. 60:1

Non-movant’s Response: The guidance for drafting a response tracks

the advice for drafting the motion. Respond to a motion for summary

judgment in clear, concise language presenting evidence to show that a fact

issue exists or that the motion is insufficient as a matter of law. In regard to

the presentation of evidence, the non-movant is not required to marshal its

proof, but must present enough evidence to raise a genuine fact issue on the

challenged elements.

119

One of the most difficult strategic decisions to be

made by a non-movant is how much of its evidence it should reveal to

overcome the summary judgment, without giving the movant a complete

preview of its evidence and strategy.

B. Pleadings

The movant should insure that the grounds for the motion for summary

judgment are supported by pleadings. Rule 166a(c) provides that the trial

court should render summary judgment based on pleadings on file at the time

of the hearing.

120

Where there is no live pleading urging a cause of action,

there can be no summary judgment.

121

1. Amended Pleadings

Unless it violates a discovery plan deadline, a party may file an amended

pleading after it files its summary judgment motion or response.

122

summary judgment proceeding is considered a “trial” with respect to filing

amended pleadings according to Texas Rule of Civil Procedure 63.

123

Thus,

a party should file an amended answer as soon as possible and no later than

seven days before the summary judgment hearing.

124

If filed outside the

seven-day period, no leave to file amended pleadings is necessary.

125

computing the seven-day period, the day the party files the amended pleading

is not counted, but the day of the hearing on the motion for summary

judgment is counted.

126

119. TEX. R. CIV. P. 166a, notes and cmts.

120. TEX. R. CIV. P. 166a(c).

121. Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.—Corpus Christi 2001, no pet.). But

see infra Part 1.IV.A (discussing unpleaded claims); infra Part 1.III.A.3 (discussing affirmative

defenses).

122. Cluett v. Med. Protective Co., 829 S.W.2d 822, 825–26 (Tex. App.—Dallas 1992, writ

denied).

123. Rule 63 provides for timing of amendments and responsive pleadings, including that

amended pleadings may be filed without leave of court up to seven days before the date of trial,

unless the judge sets a different schedule under Rule 166. TEX. R. CIV. P. 63.

124. Id.; Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam).

125. 9029 Gateway S. Joint Venture v. Eller Media Co., 159 S.W.3d 183, 187 (Tex. App.—El

Paso 2004, no pet.).

126. Sosa, 909 S.W.2d at 895 (citing TEX. R. CIV. P. 4).

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Timing requirements for handling supplemental pleadings vary based

on when they are filed. To file amended pleadings within seven days of

the date of the summary judgment hearing, the non-movant must obtain

leave of court.

127

If the motion for leave is filed within seven days of the

hearing, the appellate court presumes leave was granted if: “(1) the

summary judgment states that all pleadings were considered, (2) the

record does not indicate that an amended pleading was not considered,

and (3) the opposing party does not show surprise.”

128

In response, to

properly preserve a complaint that a pleading has been filed within seven

days of trial, the complaining party must both demonstrate surprise and

request a continuance.

129

If the hearing or submission is set or reset, “the

key date for purposes of Rule 63 [is] the date of the final hearing from

which the summary judgment sprang.”

130

The burden is higher on the

party amending pleadings once the hearing date on the motion for

summary judgment has passed. A party may file an amended pleading

before the court signs a judgment only if it secures a written order granting

leave to file.

131

If a nonmovant does not obtain the trial court’s written

permission to amend its pleadings after the hearing date, the movant need

not amend or supplement its motion for summary judgment to address

those claims.

132

Once it signs an order granting summary judgment, the

court loses authority to grant a motion to amend the pleadings.

133

Plaintiffs sometimes amend their petitions after the defendants file

their motions for summary judgment. If the plaintiff amends the petition

after being served with a motion for summary judgment, the defendant

must file an amended or supplemental motion for summary judgment to

address the newly pleaded cause of action.

134

Amending the motion is

127. Id.

128. Eller Media Co., 159 S.W.3d at 187; see also Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d

274, 276 (Tex. 1996).

129. Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. App.—Waco 2000, pet. denied) (citing

Morse v. Delgado, 975 S.W.2d 378, 386 (Tex. App.—Waco 1998, no pet.)).

130. Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 115 (Tex. App.—Corpus Christi 1995, writ

denied). Rule 63 (Amendments and Responsive Pleadings) provides, in part, that parties may amend

their pleading up to seven days before the date of trial or thereafter, only if they obtain leave of

court. TEX. R. CIV. P. 63.

131. TEX. R. CIV. P. 63; D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d

217, 224 (Tex. App.—Fort Worth 2013, no pet.); Hussong v. Schwan’s Sales Enters., Inc., 896

S.W.2d 320, 323 (Tex. App.—Houston [1st Dist.] 1995, no writ).

132. Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 778 (Tex. App.—Houston [1st Dist.]

2009, no pet.) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 47 S.

TEX. L. REV. 409, 419–20 (2006)).

133. Prater v. State Farm Lloyds, 217 S.W.3d 739, 741 (Tex. App.—Dallas 2007, no pet.).

134. Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex. App.—Houston [1st Dist.] 1991, no writ);

see also Worthy v. Collagen Corp., 921 S.W.2d 711, 714 & n.1 (Tex. App.—Dallas 1995)

(discussing supplemental motions), aff’d, 967 S.W.2d 360 (Tex. 1998).

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24 SOUTH TEXAS LAW REVIEW [Vol. 60:1

equally necessary for no-evidence summary judgments. If the plaintiff

amends its petition adding new causes of action not addressed by the

defendant’s no-evidence motion for summary judgment, the defendant

must file an amended motion for summary judgment identifying the

elements of the newly pleaded theories for which there is no evidence.

135

Otherwise, summary judgment on the entirety of the plaintiff’s case will

be improper because the no-evidence motion fails to address all of the

plaintiff’s theories of liability.

136

It is not always necessary for the

defendant to file an amended or supplemental motion for summary

judgment. If an amended petition only “reiterates the same essential

elements in another fashion,” then the original motion for summary

judgment will cover the new variations.

137

Similarly, if a motion for

summary judgment is sufficiently broad to encompass later-filed claims,

the movant need not amend the motion for summary judgment.

138

Nonetheless, as a matter of effective persuasion, even when the original

motion for summary judgment is sufficiently broad to encompass newly

added claims, a movant should consider filing a succinct supplemental

brief explaining to the court why an amended motion is unnecessary.

Also, when a ground asserted in a motion for summary judgment

conclusively negates a common element of the newly and previously pleaded

claims, summary judgment may be proper.

139

In cases with court-ordered discovery plans, the court may set the

deadline for amended pleadings before the close of the discovery period.

140

In those instances, movants who wait to move for summary judgment until

after the time expires for pleading amendments will not have to amend the

summary judgment motion to address amended pleadings filed beyond the

deadline without leave of court.

135. In such a situation, a movant’s reply brief that addresses the newly alleged causes of action

is “patently insufficient” to form the basis of a no-evidence summary judgment because the

nonmovant would have been under no burden to present any evidence to support its newly added

claims when responding to the original motion. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140,

148 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

136. Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam).

137. Specialty Retailers, Inc., 29 S.W.3d at 147 (quoting Lampasas v. Spring Ctr., Inc., 988

S.W.2d 428, 437 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).

138. Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510, 515 n.4 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) (citing Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied)).

139. Rotating Servs. Indus. v. Harris, 245 S.W.3d 476, 487 (Tex. App.—Houston [1st Dist.]

2007, pet. denied).

140. TEX. R. CIV. P. 190.4(b)(4).

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2. Unpleaded Claims or Affirmative Defenses

Unpleaded claims or affirmative defenses may form the basis for

summary judgment if the nonmovant does not object.

141

Specifically, the

Texas Supreme Court has held:

[A]n unpleaded affirmative defense may . . . serve as the basis for a

summary judgment when it is raised in the summary judgment motion,

and the opposing party does not object to the lack of a [Texas Rule of

Civil Procedure] 94 pleading in either its written response or before the

rendition of judgment.

142

Based on the same reasoning, the Eastland Court of Appeals

determined that, even though the plaintiff failed to plead the discovery

rule, summary judgment was precluded when the defendant did not

address it after the plaintiff raised it in response to its motion for summary

judgment.

143

The court held that “when a non-movant relies on an

unpleaded affirmative defense or an unpleaded matter constituting a

confession and avoidance,” the movant must object to defeat a motion for

summary judgment; otherwise, the issue will be tried by consent.

144

If the nonmovant objects to an unpleaded claim or affirmative defense used

as a basis for a summary judgment, the movant must then amend its pleadings to

conform to its motion.

145

3. Pleading Deficiencies and Special Exceptions

Special exceptions or motions to dismiss, not summary judgment

motions, are the proper vehicle to attack pleading deficiencies.

146

Texas

141. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 n.1 (Tex. 2007) (per

curiam); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (“[U]npleaded

claims or defenses that are tried by express or implied consent of the parties are treated as if they

[were] raised by the pleadings.”).

142. Roark, 813 S.W.2d at 494; see also TEX. R. CIV. P. 94 (concerning pleading affirmative

defenses); Finley v. Steenkamp, 19 S.W.3d 533, 541 (Tex. App.—Fort Worth 2000, no pet.) (stating

that an unpleaded affirmative defense that is raised in a motion for summary judgment and

unchallenged by the nonmovant is a permissible basis for summary judgment); Webster v. Thomas,

5 S.W.3d 287, 288–89 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (discussing the burden of

proof when basing a motion for summary judgment on an affirmative defense).

143. Proctor v. White, 172 S.W.3d 649, 652 (Tex. App.—Eastland 2005, no pet.).

144. Id.

145. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (“Summary judgment

based on a pleading deficiency is proper if a party has had an opportunity by special exception to

amend and fails to do so, or files a further defective pleading.”).

146. In re B.I.V., 870 S.W.2d 12, 13–14 (Tex. 1994) (per curiam); Massey v. Armco Steel Co.,

652 S.W.2d 932, 934 (Tex. 1983) (“Whether pleadings fail to state a cause of action may not be

resolved by summary judgment.”); Tex. Dep’t of Corr. v. Herring, 513 S.W.2d 6, 9–10 (Tex. 1974)

(concluding that the protective features of the special exception procedure should not be

circumvented by summary judgment where the pleadings fail to state a cause of action).

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26 SOUTH TEXAS LAW REVIEW [Vol. 60:1

Rule of Civil Procedure 91a, which went into effect on March 1, 2013,

permits (through the filing of a motion to dismiss) the dismissal of causes

of action that have “no basis in law or fact” when the requirements of the

rule are met.

147

In the context of summary judgment procedure, if a pleading

deficiency can be cured by amendment, a summary judgment is not

proper.

148

However, a nonmovant must raise a complaint that summary

judgment was granted without opportunity to amend or it is waived.

149

a. Special Exceptions

Special exceptions should be used to challenge the plaintiff’s failure

to state a cause of action or to force a movant to clarify an unclear or

ambiguous motion for summary judgment. The purpose of special

exceptions is to compel clarification of pleadings when the pleadings are

not clear or sufficiently specific or fail to plead a cause of action.

150

If the

nonmovant seeks to challenge the plaintiff’s failure to state a cause of

action, filing special exceptions is the appropriate method to attack that

failure.

151

Special exceptions allow the nonmovant an opportunity to

147. TEX. R. CIV. P. 91a.1; Bart Turner & Assocs. v. Krenke, No. 3:13-CV-2921-L, 2014 WL

1315896, at *3 (N.D. Tex. Mar. 31, 2014) (mem. op.) (“[Rule 91a] now allows a state court to do

what a federal court is allowed to do under Federal Rule of Civil Procedure 12(b)(6).”); see also

TEX. R. CIV. P. 90–91 (providing for special exceptions for defects in pleadings and waiver of

defects for failure to specially except). TEX. R. CIV. P. 91a.1 (“A cause of action has no basis in law

if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle

the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could

believe the facts pleaded.”); Wooley v. Schaffer, 447 S.W.3d 71, 74–76 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied) (deciding as a matter of first impression that a trial court’s ruling on a

motion to dismiss under Rule 91a is reviewed de novo).

148. In re B.I.V., 870 S.W.2d at 13.

149. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209–10 (Tex. 1990) (per curiam)

(holding that a trial court’s judgment may not be reversed where a party does not present a timely

request, objection, or motion to the trial court); Higbie Roth Constr. Co. v. Houston Shell &

Concrete, 1 S.W.3d 808, 811 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Ross v. Arkwright

Mut. Ins. Co., 933 S.W.2d 302, 304–05 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (citing

San Jacinto River Auth., 783 S.W.2d at 209–10).

150. Friesenhahn v. Ryan, 960 S.W.2d 656, 658–59 (Tex. 1998).

151. TEX. R. CIV. P. 91; see also Lavy v. Pitts, 29 S.W.3d 353, 356 (Tex. App.—Eastland

2000, pet. denied) (explaining that the rationale behind special exceptions, even in the context of a

motion for summary judgment, is that parties must clearly assert their position in writing). The

recent enactment of Rule 91a does not alter the procedure for filing special exceptions, as the new

rule “is in addition to, and does not supersede or affect, other procedures that authorize dismissal.”

TEX. R. CIV. P. 91a.9; City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 821 (Tex. App.—Austin

2014, no pet.).

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amend before dismissal.

152

There is no general demurrer in Texas.

153

If the

court determines the petition is defective, the “court must give the pleader

an opportunity to amend his pleadings prior to granting summary

judgment or dismissing the case.”

154

In certain circumstances, a trial court

may dismiss a claim after sustaining special exceptions. For example, in

Baylor University v. Sonnichsen, the supreme court determined that

because the plaintiff could not have corrected the problem (there was no

mutual agreement), the trial court did not abuse its discretion by

sustaining the defendant’s special exceptions and dismissing his breach

of contract claim.

155

Subject to challenges to jurisdiction and venue, a party should file

special exceptions identifying and objecting to non-jurisdictional defects

apparent on the face of the opponent’s pleadings.

156

If identification of the

defect depends on information extrinsic to the pleadings themselves, special

exceptions are not appropriate.

157

Special exceptions must be directed at the

plaintiff’s live pleadings.

158

Special exceptions are also the method to force a movant for

summary judgment to clarify its position if its motion for summary

judgment is unclear or ambiguous. To complain that summary judgment

152. Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 483 (Tex. App.—

Houston [14th Dist.] 1991, no writ).

153. Texas Rule of Civil Procedure 90 discarded the general demurrer. TEX. R. CIV. P. 90; Tex.

Dep’t of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974); see also General Demurrer, BLACK’S

LAW DICTIONARY 644, 752 (9th ed. 2009) (defining “general demurrer” as “[a]n objection pointing

out a substantive defect in an opponent’s pleading, such as the insufficiency of the claim or the

court’s lack of subject-matter jurisdiction; an objection to a pleading for want of substance”).

154. Moonlight Invs., Ltd. v. John, 192 S.W.3d 890, 893 (Tex. App.—Eastland 2006, pet.

denied); see also Friesenhahn, 960 S.W.2d at 658 (“When the trial court sustains special exceptions,

it must give the pleader an opportunity to amend the pleading.”).

155. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (per curiam).

156. Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.]

1992, no writ) (holding that special exceptions should be used to force clarification of vague

pleadings and question the legal sufficiency of the party’s petition).

157. Fernandez v. City of El Paso, 876 S.W.2d 370, 373 (Tex. App.—El Paso 1993, writ

denied) (stating special exceptions must only address matters on the face of the other party’s

pleading); O’Neal v. Sherck Equip. Co., 751 S.W.2d 559, 562 (Tex. App.—Texarkana 1988, no

writ) (stating that a special exception “cannot inject factual allegations that do not appear” in the

other party’s pleading).

158. See Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 269 (Tex. App.—Houston [1st

Dist.] 1991, writ denied) (stating that any complaint regarding a pleading is waived unless

specifically included in special exceptions). In Transmission Exchange Inc. v. Long, the defendants’

statement in their special exceptions that plaintiff’s pleading did not advise them of the amounts

claimed for fraud damages, was taken as an indication that defendants were aware of and, therefore,

on notice of plaintiff’s fraud allegations. Id. That fact, coupled with the absence of any special

exceptions to the vague allegations of fraud in plaintiff’s third amended petition and the defendants’

failure to object to the submission of special issues on fraud, constituted waiver of any complaint

that the judgment for fraud did not conform to the pleadings. Id.

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28 SOUTH TEXAS LAW REVIEW [Vol. 60:1

grounds are unclear, a nonmovant must specially except to the motion.

159

If the motion fails to state grounds or states some grounds but not others,

the nonmovant should challenge these defects as a means to defeat the

summary judgment on the merits, not to identify them by special

exceptions and thereby prompt the movant to cure them. Any special

exception due to a lack of clarity or ambiguity in the motion for summary

judgment is likewise subject to the seven-day before the hearing deadline.

160

Amended pleadings may be filed without leave of court up to seven days before

the hearing.

161

The party filing special exceptions should ask for a signed order

overruling or sustaining the special exceptions at or before the hearing.

162

The

movant should be entitled to a ruling before responding to the motion for

summary judgment. Practically, the best way of handling timing in such an

instance may be to ask the court for a continuance until it rules on the special

exception.

A court will not infer a ruling on the special exception from the

disposition of the summary judgment alone.

163

b. Effect of Amendment and Failure to Amend

As noted above, a motion for summary judgment should not be based

on a pleading deficiency (that is subject to a special exception) that could be

cured by amendment. If the trial court sustains the special exception, the

offending party may replead or it may elect to stand on the pleadings and test

the trial court’s order on appeal.

164

If the opportunity to amend is given and

no amendment is made or instead a further defective pleading is filed, then

summary judgment may be proper.

165

If a pleading deficiency is a type that

cannot be cured by an amendment, then a special exception is unnecessary

159. Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110, 123 (Tex. App.—Houston

[14th Dist.] 2013, pet. denied); Lavy v. Pitts, 29 S.W.3d 353, 356 (Tex. App.—Eastland 2000, pet.

denied) (citing Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 (Tex. 1995)).

160. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993) (finding

that any confusion regarding an exception must be responded to in written form, filed, and served

at least seven days before the hearing).

161. Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam); see supra

Part 1.I.B.1 (discussing amended pleadings).

162. See McConnell, 858 S.W.2d at 343 n.7.

163. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165 (Tex. 2018) (citing with approval

Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio 200, no pet.)); Franco v.

Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 785 (Tex. App.—Houston [14th Dist.] 2004, no

pet.).

164. D.A. Buckner Constr., Inc. v. Hobson, 793 S.W.2d 74, 75 (Tex. App.—Houston [14th

Dist.] 1990, no writ).

165. Haase v. Glazner, 62 S.W.3d 795, 800 (Tex. 2001); Friesenhahn v. Ryan, 960 S.W.2d

656, 658 (Tex. 1998); Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

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and summary judgment is proper if the facts alleged “establish the absence

of a right of action or [create] an insuperable barrier to a right of recovery.”

166

The review of a summary judgment differs when based on the failure

of a party to state a claim after either special exceptions or an amendment

because review then focuses on the pleadings of the nonmovant.

167

appeal, review of the sufficiency of the amended pleadings is de novo.

168

The appellate court must take “all allegations, facts, and inferences in the

pleadings as true and view[] them in a light most favorable to the

pleader.”

169

The court will reverse the motion for summary judgment if

the pleadings, liberally construed, support recovery under any legal

theory.

170

On the other hand, “[t]he reviewing court will affirm the

summary judgment only if the pleadings are legally insufficient.”

171

C. Time for Filing Motion for Summary Judgment

The timing of filing a motion for summary judgment depends on

whether it is a traditional motion for summary judgment or a no-evidence

summary judgment.

1. Traditional Summary Judgment

Rule 166a(a) provides that the party seeking affirmative relief in a

lawsuit may file a traditional motion for summary judgment at any time

after the adverse party answers the suit.

172

A summary judgment may not

be granted for a plaintiff against a defendant who has no answer on file.

173

166. Swilley v. Hughes, 488 S.W.2d 64, 66–67 (Tex. 1972) (noting that cases where summary

judgment is proper, rather than using special exceptions, are limited); see, e.g., White v. Bayless,

32 S.W.3d 271, 274 (Tex. App.—San Antonio 2000, pet. denied) (granting summary judgment

without giving the nonmovant an opportunity to cure because the nonmovant’s pleading

“affirmatively demonstrate[d] that no cause of action exist[ed]”); Trail Enters., Inc. v. City of

Houston, 957 S.W.2d 625, 632–33 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (finding

that the statute of limitations ran and plaintiff did not plead the discovery rule).

167. See Russell v. Tex. Dep’t of Human Res., 746 S.W.2d 510, 512–13 (Tex. App.—

Texarkana 1988, writ denied) (explaining that, after amendment, the focus shifts to the answers in

the response).

168. Natividad, 875 S.W.2d at 699; Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—

Fort Worth 1996, writ denied).

169. Natividad, 875 S.W.2d at 699; Hall, 919 S.W.2d at 467.

170. Gross v. Davies, 882 S.W.2d 452, 454 (Tex. App.—Houston [1st Dist.] 1994, writ denied)

(stating that if liberal construction of a petition shows a valid claim, summary judgment should be

reversed); Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.]

1991, no writ) (holding that a motion for summary judgment must be overruled if liberal

construction of the pleading reveals a fact issue).

171. Natividad, 875 S.W.2d at 699.

172. TEX. R. CIV. P. 166a(a).

173. Hock v. Salaices, 982 S.W.2d 591, 592 (Tex. App.—San Antonio 1998, no pet.).

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A defendant, however, may file a motion for summary judgment at any

time,

174

even before answering the lawsuit.

175

Nonetheless, seldom is a motion for summary judgment appropriate

immediately after the defendant has answered. In fact, Rule 166a(g)

specifically provides that the court “may order a continuance to permit

affidavits to be obtained or depositions to be taken or discovery to be had

or may make such other order as is just.”

176

Examples of proper early-filed

motions for summary judgment would be when the case hinges

exclusively on the interpretation of a statute, the construction of an

unambiguous contract, or application of the statute of limitations when

the discovery rule does not apply. On the other hand, if the summary

judgment grounds are fact-based, generally the nonmovant will have valid

grounds for a continuance to conduct some discovery.

177

2. No-Evidence Motion for Summary Judgment

The proper timing to file a no-evidence motion for summary

judgment is more complicated than that for a traditional motion for

summary judgment. Before a no-evidence summary judgment can be

filed, there must have been an “adequate time for discovery.”

178

This

“adequate time for discovery” standard applies only to no-evidence

motions for summary judgment.

179

“The rule does not require that

discovery must have been completed, only that there was ‘adequate time’”

for discovery.

180

Specifically, the rule provides in relevant part:

(i) No-Evidence 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.

181

The “Notes and Comments” addendum to the rule, which was

promulgated in 1997, offers guidance for cases with discovery orders. It

provides that “[a] discovery period set by pretrial order should be

adequate opportunity for discovery unless there is a showing to the

174. TEX. R. CIV. P. 166a(b).

175. Zimmelman v. Harris County, 819 S.W.2d 178, 181 (Tex. App.—Houston [1st Dist.]

1991, no writ).

176. TEX. R. CIV. P. 166a(g); see infra Part 1.I.H (discussing motions for continuance).

177. See infra Part 1.I.H (discussing motions for continuance).

178. TEX. R. CIV. P. 166a(i).

179. TEX. R. CIV. P. 166a(a)–(b), (i).

180. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.]

2000, pet. denied).

181. TEX. R. CIV. P. 166a(i) (emphasis added).

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contrary, and ordinarily a motion under paragraph (i) would be permitted

after the period but not before.”

182

All cases now have a rule- or court-imposed discovery plan with

discovery periods.

183

Rule 190 provides three discovery control plans,

each of which has a “discovery period” for all civil cases.

184

Therefore, an

“adequate time for discovery” may be measured against the “discovery

period” assigned to a given case. The comment to Rule 166a(i) covers

what now is called a “Level 3” case, which has a court-imposed discovery

plan.

185

Levels 1 and 2 have rule-imposed discovery periods.

186

Thus, if

the no-evidence motion for summary judgment is filed after the expiration

of the discovery periods, presumptively there will have been an adequate

time for discovery.

For Level 1 cases, an adequate time for discovery would occur 180 days

after the date on which the first request for discovery is served.

187

The

practical effect of this cutoff date is that the case has progressed so far, and

the dollars sought are so relatively small,

188

that many defendants will forego

filing a no-evidence motion for summary judgment before trial. Also, it will

be difficult to get the trial court to rule on the motion for summary judgment

in the limited time before trial. For Level 2 cases, an adequate time for

discovery would be the discovery cutoff of thirty days before the date set for

trial, or nine months after the first oral deposition is taken or the answers to

the first written discovery are due, whichever is earlier.

189

In Level 2 family

cases, the nonmovant responding to a motion for summary judgment filed

thirty days before trial would have had adequate time for discovery.

190

For

Level 3 cases, the close of discovery under the court-ordered discovery

control plan determines the date after which an adequate time for discovery

has passed.

191

182. TEX. R. CIV. P. 166a(i) cmt.—1997. Paragraph (i) is the no-evidence summary judgment

paragraph in Texas Rule of Civil Procedure 155a.

183. TEX. R. CIV. P. 190 cmt.—1999.

184. TEX. R. CIV. P. 190; see also Texas Supreme Court Order of Nov. 9, 1998, Final Approval

of Revisions to the Texas Rules of Civil Procedure, Misc. Docket No. 98-9196, at 1, reprinted in

61 TEX. B.J. 1140, 1140 (1998) (declaring that Rule 190 applies to all cases filed on or after January

1, 1999).

185. TEX. R. CIV. P. 190.4.

186. TEX. R. CIV. P. 190.2.3.

187. TEX. R. CIV. P. 190.2(b)(1); see also TEX. R. CIV. P. 190.2(c) (explaining that when a suit

no longer meets the criteria for Level 1, discovery reopens and either the Level 2 or Level 3

discovery plan, whichever is applicable, takes effect).

188. Level 1 cases are limited to expedited disputes governed by Texas Rule of Civil Procedure

169 and divorces not involving children in which $50,000 or less is at issue. TEX. R. CIV. P. 190.2(a)

(citing TEX. R. CIV. P. 169).

189. TEX. R. CIV. P. 190.3(b)(1)(B).

190. TEX. R. CIV. P. 190.3(b)(1)(A).

191. TEX. R. CIV. P. 190.4(b)(2).

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The timing restriction is not absolute. Movants on no-evidence summary

judgments may properly file the motion before the expiration of the discovery

period.

192

The ability to file a no-evidence motion for summary judgment

before the close of discovery supports judicial economy arguments; the

presumption against the early filing of motions for summary judgment supports

the right to a certain discovery window to allow a nonmovant to secure

sufficient evidence to demonstrate the existence of a material fact issue.

In appropriate cases, a movant could show an adequate time for

discovery has passed, even though the discovery period has not expired, by

convincing the court that the nonmovant’s claimed need for discovery is

unfounded.

193

The nonmovant opposing an early-filed no-evidence motion

for summary judgment should attempt to have it denied as premature by

convincing the court that remaining discovery is likely to lead to

controverting evidence and that, in any event, he or she is entitled to the

additional time under the discovery plan.

Even if the no-evidence motion for summary judgment is filed after

the close of discovery,

194

Texas Rule of Civil Procedure 190.5 may

provide a basis for a request for continuance of the motion for summary

judgment. When a nonmovant contends that he or she has not had an

adequate time for discovery, he or she must file an affidavit or a verified

motion for continuance explaining the need for further discovery.

195

The

court may deny the motion for summary judgment, continue the hearing

to allow additional discovery, or “make such other order as is just.”

196

Whether to file a summary judgment early or late in the process depends on

several factors.

197

If the motion is likely to rest on purely legal grounds, extensive

discovery will not be necessary or helpful to either party. An early filing of a

summary judgment motion may provide an early look at the other side’s case

192. When determining whether an adequate time for discovery has passed, in addition to the

discovery period, courts look to the nature of the causes of action, the type of evidence necessary to

controvert the no-evidence motion, the length of time the case has been pending, the length of time

the motion has been on file, the amount of discovery that has already occurred, whether the movant

has requested stricter time deadlines for discovery, and whether the existing discovery deadlines are

specific or vague. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied); see also infra Part 1.I.H.2 (discussing factors considered in granting

continuances).

193. See Specialty Retailers, Inc., 29 S.W.3d at 145 (upholding the trial court’s conclusion that

an adequate time for discovery had passed despite the fact that the discovery deadline had not yet

been reached); see also infra Part 1.I.H.2 (discussing factors considered in granting continuances).

194. See infra Part 1.I.H (discussing motions for continuance).

195. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).

196. TEX. R. CIV. P. 166a(g).

197. See generally W. Alan Wright & Thomas E. Kurth, Tactical Considerations in Summary

Judgment Practice, 64 ADVOC., Fall 2013, at 15, 17 (explaining that the decision to move for

summary judgment involves several tactical decisions).

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and its evidence. As such, an early filing strategy may benefit the movant’s trial

preparations and encourage settlement.

198

Conversely, when summary judgment grounds are fact-based, the

movant likely should consider waiting until the close of discovery to seek

summary judgment. Thus, a late filing strategy could allow the movant to

“lock in” the nonmovant’s evidence and testimony.

199

D. Deadlines for Filing Motion for Summary Judgment

A motion for summary judgment shall be filed and served at least

twenty-one days before the time specified for the hearing on the summary

judgment.

200

If different parties on the same side of the lawsuit file

separate summary judgment motions, each movant should comply with

the notice provisions of the rule.

201

Parties may alter the deadlines for

filing summary judgment motions by Rule 11 agreement.

202

Periods

governing summary judgment procedures are counted in the same manner

as for other procedural rules.

203

The day of service of a motion for

summary judgment is not to be included in computing the minimum

twenty-one-day notice for hearing.

204

However, the day of hearing is

included in the computation.

205

The supreme court has mandated electronic filing in “civil cases,

including family and probate cases, by attorneys in appellate courts,

district courts, statutory county courts, constitutional county courts, and

statutory probate courts.”

206

If electronic filing has not been mandated and

if the motion is served by mail, three days are added to the twenty-one-

day notice period required prior to the hearing.

207

198. Id.

199. Id.

200. TEX. R. CIV. P. 166a(c); Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam);

see also Krchnak v. Fulton, 759 S.W.2d 524, 528 (Tex. App.—Amarillo 1988, writ denied) (holding

that the rule regarding certificate of service “creates a presumption that the requisite notice was

served and . . . has the force of a rule of law”).

201. See Wavell v. Caller-Times Publ’g Co., 809 S.W.2d 633, 636–37 (Tex. App.—Corpus

Christi 1991, writ denied) (emphasizing that the notice provisions for summary judgment are strictly

construed), abrogated on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994).

202. TEX. R. CIV. P. 11 (allowing enforcement of agreements between parties when they are

signed and filed, or made in open court and entered on the record); D.B. v. K.B., 176 S.W.3d 343,

347 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

203. Lewis v. Blake, 876 S.W.2d 314, 315–16 (Tex. 1994) (citing TEX. R. CIV. P. 4)

(disapproving of a series of appellate court decisions that did not add the extra three days for service

by mail or telephonic document transfer).

204. Id.

205. Id.

206. Order Requiring Electronic Filing in Certain Courts, Misc. Docket No. 12-9208 (Tex.

Dec. 11, 2012).

207. Lewis, 876 S.W.2d at 315.

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The twenty-one-day requirement is strictly construed by the courts and

should be carefully followed.

208

Summary judgment evidence may be filed late

with leave of court.

209

The party filing the late evidence must obtain a written

order granting leave to file.

210

Rule 166a(c) authorizes the court to accept

materials filed after the hearing so long as those materials are filed before

judgment.

211

If a summary judgment hearing is reset, the twenty-one-day

requirement does not apply to the resetting.

212

If the court grants a continuance,

the minimum twenty-one-day period notice requirement for submission or

hearing does not begin again because the twenty-one-day period is measured

from the original filing day.

213

The nonmovant need only be given a reasonable time in which to prepare

and file a response.

214

“Reasonable notice . . . means at least seven days before

the hearing on the motion [for summary judgment] because a nonmovant may

only file a response to a motion for summary judgment not later than seven days

prior to the date of the hearing . . . .”

215

A party waives its challenge for failure to receive twenty-one days’

notice if that party “received notice of the hearing, appeared at it, filed no

controverting affidavit, and did not ask for a continuance.”

216

“An

allegation that a party received less notice than required by statute does

208. Wavell v. Caller-Times Publ’g Co., 809 S.W.2d 633, 637 (Tex. App.—Corpus Christi

1991, writ denied), abrogated on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577 (Tex.

1994).

209. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).

210. Id. (finding no order in the record granting the party leave to file an affidavit late and

therefore holding that the affidavit was not properly before the court and could not be considered).

211. Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco 1994,

writ denied) (citing TEX. R. CIV. P. 166a(c)) (finding that a trial court can accept evidence “after the

hearing on the motion and before summary judgment is rendered”); Diaz v. Rankin, 777 S.W.2d

496, 500 (Tex. App.—Corpus Christi 1989, no writ) (holding that the trial court has discretion to

allow late filing); Marek v. Tomoco Equip. Co., 738 S.W.2d 710, 713 (Tex. App.—Houston [14th

Dist.] 1987, no writ) (concluding that a trial court may consider affidavits filed after the hearing and

before judgment when the court gives permission).

212. Birdwell v. Texins Credit Union, 843 S.W.2d 246, 250 (Tex. App.—Texarkana 1992, no

writ) (“The twenty-one-day requirement from notice to hearing does not apply to a resetting of the

hearing, provided the nonmovant received notice twenty-one days before the original hearing.”).

213. Lewis v. Blake, 876 S.W.2d 314, 315–16 (Tex. 1994) (per curiam) (citing TEX. R. CIV.

P. 4) (discussing the calculation of the twenty-one-day notice requirement); see also supra Part

1.I.D (discussing deadlines for filing motions for summary judgment).

214. See Birdwell, 843 S.W.2d at 250 (explaining that the twenty-one-day requirement is

intended to give the nonmovant sufficient time to prepare and file a response “for the original

setting”).

215. LeNotre v. Cohen, 979 S.W.2d 723, 726 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied) (citing Int’l Ins. Co. v. Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex. App.—Fort Worth

1983, no writ)).

216. Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.—Houston [14th Dist.] 1992, no writ);

see also Morrone v. Prestonwood Christian Acad., 215 S.W.3d 575, 585 (Tex. App.—Eastland

2007, pet. denied) (holding that the nonmovant waived the issue of twenty-one days’ notice because

the trial record did not show an objection, a request for continuance, or a motion for a new trial).

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not present a jurisdictional question and therefore may not be raised for

the first time on appeal.”

217

It is error for the trial judge to grant a summary

judgment without notice of the setting.

218

However, for the error to be reversible,

the nonmovant must show harm.

219

No additional notice is required for the trial court to rehear a

previously denied motion for summary judgment.

220

E. Deadlines for Response

Rule 166a(c) provides that “[e]xcept on leave of court, the adverse party,

not later than seven days prior to the day of hearing may file and serve opposing

affidavits or other written response.”

221

The three-day rule for mailing does not

apply to the response.

222

For the few courts where mailing is permitted, a

response is timely if it is mailed seven days before the hearing date.

223

If the trial

court imposes a shorter deadline to file a response, the nonmovant must object

to preserve that error for appeal.

224

The seven-day rule applies equally to

responses to cross-motions for summary judgment.

225

217. Negrini, 822 S.W.2d at 823.

218. Milam v. Nat’l Ins. Crime Bureau, 989 S.W.2d 126, 129 (Tex. App.—San Antonio 1999,

no pet.).

219. Id.

220. Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 555–56 (Tex. App.—Amarillo

2004, no pet.).

221. TEX. R. CIV. P. 166a(c).

222. See Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam) (disapproving of three

courts of appeals’ decisions that found the effect of Rule 21a’s three-day extension is to allow a

party to respond to a summary judgment motion served by mail on the fourth day before the hearing,

rather than the seventh as required by Rule 166a(c)).

223. Clendennen v. Williams, 896 S.W.2d 257, 259 (Tex. App.—Texarkana 1995, no writ),

overruled on other grounds by Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d

314 (Tex. 2012) (per curiam); The supreme court has mandated electronic filing in “civil cases,

including family and probate cases, by attorneys in appellate courts, district courts, statutory

county courts, constitutional county courts, and statutory probate courts.” Order Requiring

Electronic Filing in Certain Courts, Misc. Docket No. 12-9208 (Tex. Dec. 11, 2012).

224. See Richardson v. Johnson & Higgins of Tex., Inc., 905 S.W.2d 9, 12 (Tex. App.—

Houston [1st Dist.] 1995, writ denied) (holding that error must be reflected in the appellate record).

225. Murphy v. McDermott Inc., 807 S.W.2d 606, 609 (Tex. App.—Houston [14th Dist.] 1991,

writ denied).

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A trial court may allow a late response.

226

The nonmovant must obtain

leave of court to file a late response.

227

Refusal to permit late filing is

discretionary.

228

The standard for allowing a late-filed summary judgment

response is a showing of good cause and no undue prejudice.

229

If a court allows late filing of a response to a motion for summary

judgment, the court “must affirmatively indicate in the record acceptance of

the late filing.”

230

The affirmative indication may be by separate order, by

recitation in the summary judgment itself, or an oral ruling contained in the

reporter’s record of the summary judgment hearing.

231

A Rule 11

agreement

232

“may alter the deadline for filing a response.”

233

One court has

determined that a docket entry is sufficient to show leave was granted.

234

Nonetheless, obtaining a separate order or having the summary judgment

order reflect permission is advisable. Although an oral order recorded in a

226. Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 176 (Tex. App.—Fort Worth 1996, no writ)

(finding that the trial court has discretion to accept late-filed summary judgment evidence); Sullivan

v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied) (noting that a

court’s acceptance of a late filing of opposing proof is “entirely” discretionary); Ossorio v. Leon,

705 S.W.2d 219, 221 (Tex. App.—San Antonio 1985, no writ) (holding that the court may

specifically grant leave to file late responses and consider those documents as proper support for a

summary judgment motion).

227. Neimes v. Kien Chung Ta, 985 S.W.2d 132, 139 (Tex. App.—San Antonio 1998, pet.

dism’d by agr.) (citing TEX. R. CIV. P. 166a(c)).

228. White v. Indep. Bank, N.A., 794 S.W.2d 895, 900 (Tex. App.—Houston [1st Dist.] 1990,

writ denied) (holding that the trial court may refuse affidavits that are filed late); Folkes v. Del Rio

Bank & Trust Co., 747 S.W.2d 443, 444 (Tex. App.—San Antonio 1988, no writ) (denying

permission to file a late response was not abuse of discretion).

229. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687–88 (Tex. 2002);

Williams v. Fort Bend Indep. Sch. Dist., No. 01-10-00611-CV, 2011 WL 2504507, at *1 (Tex.

App.—Houston [1st Dist.] June 23, 2011, no pet.) (mem. op.). “‘Good cause’ means the failure to

timely file a summary judgment response was due to an accident or mistake and was not intentional

or the result of conscious indifference.” Id. “[E]ven a slight excuse will suffice, especially when

delay or prejudice to the opposing party will not result.” Id. (quoting Boulet v. State, 189 S.W.3d

833, 836 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).

230. Farmer, 919 S.W.2d at 176; see also Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d

487, 490 (Tex. 1988) (holding an amended petition that is part of the record raises a presumption

that leave of court was granted); K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96 (Tex. App.—

San Antonio 2002, no pet.).

231. Neimes, 985 S.W.2d at 138; see also Farmer, 919 S.W.2d at 176 (finding that a lack of

indication in the record showing that leave was obtained leads to a presumption that leave was not

obtained).

232. Rule 11 provides in part: “[N]o agreement between attorneys or parties touching any suit

pending will be enforced unless it be in writing, signed and filed with the papers as part of the

record, or unless it be made in open court and entered of record.” TEX. R. CIV. P. 11.

233. Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 377 (Tex. App.—Fort Worth

2003, pet. denied).

234. Shore v. Thomas A. Sweeney & Assocs., 864 S.W.2d 182, 184–85 (Tex. App.—Tyler

1993, no writ) (holding that the docket entry appeared on the record and thus satisfied Texas Rule

of Civil Procedure 166a). But see Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d

149, 151–52 (Tex. App.—Dallas 1986, no writ) (stating that a docket entry is inadequate indication

of acceptance).

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reporter’s record (formerly “statement of facts”) from the hearing may not be

sufficient, one court has held that it was sufficient.

235

In the absence of such

an indication, the appellate court will presume that the judge refused the late

filing, even if the response appears as part of the appellate transcript.

236

F. Movant’s Reply: Purpose and Deadlines

Aside from the advocacy benefits to filing a reply, the movant must file

a reply if he or she intends to object to the nonmovant’s evidence. The reply

should make any challenges to the nonmovant’s summary judgment

evidence.

237

“It is appropriate for the trial court to grant leave for the late

filing of summary judgment proof when the summary judgment movant is

attempting to counter arguments presented in the nonmovant’s

response.”

238

Another reason to reply is to complain about the nonmovant’s

reliance on an unpleaded affirmative defense or an unpleaded matter

constituting a confession and avoidance.

239

The movant must object in its

reply to defeat the motion for summary judgment. Otherwise, the issue

will be tried by consent.

240

A reply cannot serve some purposes. A reply may not be used to amend

the motion for summary judgment or to raise new and independent summary

judgment grounds.

241

Neither may a reply to the nonmovant’s response

provide the requisite specificity (to state the elements of the claim for which

235. Woodbine Elec. Serv., Inc. v. McReynolds, 837 S.W.2d 258, 261 (Tex. App.—Eastland

1992, no writ) (“It would be exalting form over substance to shut our eyes to the recorded

proceedings which occurred in open court . . . .”); see also Neimes, 985 S.W.2d at 139

(recommending attorneys ensure their objections are preserved in case of future consideration).

236. Waddy v. City of Houston, 834 S.W.2d 97, 101 (Tex. App.—Houston [1st Dist.] 1992,

writ denied) (finding nothing in the record indicating that the trial court granted leave for a late

filing, giving rise to a presumption that the court did not consider the late response and, thus, the

appellate court could not consider the response).

237. See Alaniz v. Hoyt, 105 S.W.3d 330, 339 (Tex. App.—Corpus Christi 2003, no pet.)

(observing that failure to file objections in writing or at the hearing results in failure to preserve

error for future consideration), abrogated on other grounds by Fort Brown Villas III Condo. Ass’n

v. Gillenwater, 285 S.W.3d 879 (Tex. 2009) (per curiam).

238. Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.—San Antonio 2010, pet. denied); see

Ferguson v. Tex. Dep't of Transp., No. 11-15-00110-CV, 2017 WL 3923510, at *7 (Tex. App.—

Eastland Aug. 31, 2017, no pet.) (mem. op.).

239. Proctor v. White, 172 S.W.3d 649, 652 (Tex. App.—Eastland 2005, no pet.).

240. Id.

241. Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364, 378 (Tex. App.—Houston [14th Dist.]

2011, pet. denied) (citing Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.—San Antonio 2010, pet.

denied)). “A motion [for summary judgment] must stand or fall on the grounds expressly presented

in the motion.” Id. (quoting McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.

1993)).

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there is no evidence) required for a no-evidence motion for summary

judgment.

242

Rule 166a does not specify when the movant’s reply to the nonmovant’s

response should be filed. The limited case law that exists indicates that the

movant may file a reply up until the day of the hearing.

243

For example,

Reynolds v. Murphy holds that “a movant’s objections to the competency of

a nonmovant’s evidence that are filed the day of the hearing are not untimely

and may be considered and ruled upon by the trial court.”

244

Local rules may

govern the timing of the reply.

245

Any special exception by the movant

concerning vagueness or ambiguity in the nonmovant’s response must be

made at least three days before the hearing.

246

The seven-day limit before

submission in which a nonmovant may submit summary judgment evidence

does not apply to the movant’s reply.

247

G. Service

The motion for summary judgment and response should be served

promptly on opposing counsel, and a certificate of service should be included

in any motion for summary judgment. If notice is not given, the judgment

may be reversed on appeal.

248

The nonmovant is entitled to receive specific

242. Barnes v. Tex. A&M Univ. Sys., No. 14-13-00646-CV, 2014 WL 4915499, at *6 (Tex.

App.—Houston [14th Dist.] Sept. 30, 2014, no pet.) (citing Meru v. Huerta, 136 S.W.3d 383, 390

n.3 (Tex. App.—Corpus Christi 2004, no pet.)); Judge David Hittner & Lynne Liberato, Summary

Judgments in Texas, 54 BAYLOR L. REV. 1, 8–9 (2002).

243. “A movant is entitled to file its reply until the date of the summary judgment hearing.”

Gomez v. Am. Honda Motor Co., Inc., No. 04-16-00342-CV, 2017 WL 3159703, at *5 (Tex.

App.—San Antonio July 26, 2017, pet. denied) (mem. op.) (citing Garcia v. Garza, 311 S.W.3d 28,

36 (Tex. App.—San Antonio 2010, pet. denied)); Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 907

(Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Bates v. Pecos County, 546 S.W.3d 277,

292 (Tex. App.—El Paso 2017, no pet.) (holding that a reply filed four days before the hearing was

timely); Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, LLP, 404 S.W.3d 75, 88

& n.4 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Judge David Hittner & Lynne

Liberato, Summary Judgments in Texas: State and Federal Practice, 46 HOUS. L. REV. 1379, 1407

(2010)) (noting that a reply may be late filed); Wright v. Lewis, 777 S.W.2d 520, 522 (Tex. App.—

Corpus Christi 1989, writ denied) (concluding that there was no harm in allowing objections to be

filed before or even on the day of the hearing).

244. Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied).

245. See DALLAS (TEX.) CIV. DIST. CT. LOC. R. 2.09 (“[R]eply briefs in support of a motion

for summary judgment must be filed and served no less than three days before the hearing.”); see

also 151st (TEX.) DIST. CT. LOC. R. (Harris County) (addressing replies in general and cautioning

against last-minute replies); 234th (TEX.) DIST. CT. LOC. R. (Harris County) (same); 333rd (TEX.)

DIST. CT. LOC. R. (Harris County) (same).

246. McConnell, 858 S.W.2d at 343 n.7 (citing TEX. R. CIV. P. 21).

247. Durbin v. Culberson County, 132 S.W.3d 650, 656 (Tex. App.—El Paso 2004, no pet.).

248. Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 335 (Tex. App.—Corpus Christi 2003,

pet. denied); Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.—Fort Worth 1996,

no writ) (“Absence of actual or constructive notice violates a party’s due process rights under the

Fourteenth Amendment to the federal constitution.”).

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notice of the hearing or submission date for the motion for summary

judgment so that he or she is aware of the deadline for the response.

249

Thus,

the nonmovant is entitled to an additional twenty-one days’ notice of hearing

for amended motions for summary judgment.

250

A certificate of service is

prima facie proof that proper service was made.

251

To establish a lack of

notice, the nonmovant must introduce evidence to controvert the certificate

of service.

252

One court held that the record need not reflect receipt of notice by the

nonmovant.

253

Constructive notice is imputed when the evidence indicates

“that the intended recipient engaged in instances of selective

acceptance/refusal of certified mail relating to the case.”

254

To preserve a complaint of inadequate notice, a party must object and

ask for a continuance.

255

Otherwise, a party may waive the twenty-one-day

notice requirement.

256

For example, in Davis v. Davis, two parties filed

separate motions for summary judgment directed against the appellant.

257

One motion gave the appellant twenty-one days’ notice, but the other motion

did not.

258

The trial court considered both motions simultaneously.

259

The

249. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam);

Okoli v. Tex. Dep’t of Human Servs., 117 S.W.3d 477, 479 (Tex. App.—Texarkana 2003, no pet.)

(reversing and remanding proceedings to the trial court because plaintiff was not notified of the date

of the hearing on summary judgment).

250. Sams v. N.L. Indus., Inc., 735 S.W.2d 486, 488 (Tex. App.—Houston [1st Dist.] 1987,

no writ).

251. TEX. R. CIV. P. 21a(e) (“A certificate by a party . . . showing service of a notice shall be

prima facie evidence of the fact of service.”); see also Cliff v. Huggins, 724 S.W.2d 778, 779–80

(Tex. 1987).

252. Cliff, 724 S.W.2d at 780 (holding that an offer of proof must be made to rebut the

presumption that notice was received); Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818,

820 (Tex. App.—Houston [1st Dist.] 1994, no writ) (stating that the nonmovant must introduce

evidence that notice was not received to defeat the prima facie showing of service).

253. Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 101 (Tex. App.—Beaumont 1993, writ

denied) (“It is not required that the record reflect receipt of notice by non-movant.”).

254. Id. at 102 (complying with Texas Rule of Civil Procedure 21a is sufficient for constructive

notice in such circumstances); see also Waggoner v. Breeland, No. 01-10-00226-CV, 2011 WL

2732687, at *3 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) (mem. op.); Approximately

$14,980.00 v. State, 261 S.W.3d 182, 189 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

255. See infra Part 1.I.H.

256. Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.—Houston [14th Dist.] 1992, no writ)

(explaining that a party waives the twenty-one-day requirement “where the party received notice of

the hearing, appeared at it, filed no controverting affidavit, and did not ask for a continuance”);

Brown v. Capital Bank, N.A., 703 S.W.2d 231, 234 (Tex. App.—Houston [14th Dist.] 1985, writ

ref’d n.r.e.) (finding that nonmovant’s presentation of facts essential to oppose summary judgment

in an oral submission, absent an affidavit stating such reasons, was not sufficient cause for

continuance).

257. Davis v. Davis, 734 S.W.2d 707, 708, 712 (Tex. App.—Houston [1st Dist.] 1987, writ

ref’d n.r.e.).

258. Id. at 712.

259. Id.

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appellate court found that the appellant waived any objection to the

inadequacy of the notice period because he participated in the hearing

without objection and failed to ask for a continuance, rehearing, or new

trial.

260

“To hold otherwise would allow a party who participated in the

hearing to lie behind the log until after the summary judgment is granted and

then raise the complaint of late notice for the first time in a post-trial

motion.”

261

Conversely, if a party is not given notice of the hearing or “is deprived

of its right to seek leave to file additional affidavits or other written

response, . . . it may preserve error in a post-trial motion.”

262

For example, in

Tivoli Corp. v. Jewelers Mutual Insurance Co., the nonmovant’s motion for

new trial following the grant of the summary judgment was sufficient to

preserve error because the trial judge signed the summary judgment before

the date set for submission and the nonmovant had no opportunity to

object.

263

Summary judgment pleadings filed electronically are complete on

transmission of the document to the serving party’s electronic filing service

provider.

264

Time requirements for service may be altered by agreement of

the parties

265

and by court order.

266

H. Continuances

1. General Principles

The summary judgment rule directly and indirectly addresses

continuances in two subsections. Rule 166a(g) directly addresses any type of

summary judgment continuance by providing:

Should it appear from the affidavits of a party opposing the motion [for

summary judgment] that he cannot for reasons stated present by

affidavit facts essential to justify his opposition, the court may refuse

the application for judgment or may order a continuance to permit

260. Id.; see also Loc Thi Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 560

(Tex. App.—Dallas 2003, pet. denied) (finding that a nonmovant who fails to object to any untimely

notices waives any objection); Negrini, 822 S.W.2d at 823–24 (finding that appellant waived any

error on an issue after he received notice of a hearing, appeared at it, filed no controverting affidavit,

and failed to ask for a continuance).

261. May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no

pet.).

262. Id.

263. Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 710 (Tex. App.—San Antonio

1996, writ denied).

264. TEX. R. CIV. P. 21a(a)(1), (b)(3).

265. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996) (per curiam).

266. Hall v. Stephenson, 919 S.W.2d 454, 461 (Tex. App.—Fort Worth 1996, writ denied).

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affidavits to be obtained or depositions to be taken or discovery to be

had or may make such other order as is just.

267

Elsewhere, Rule 166a(i) indirectly addresses continuances. Even though

there is no specific minimum amount of time that a case must be pending

before a trial court can consider a no-evidence motion, Rule 166a(i) provides

the basis for a continuance of a no-evidence summary judgment when it

authorizes the granting of a no-evidence summary judgment only “[a]fter

adequate time for discovery.”

268

Thus, when a nonmovant “contends that it has not had an adequate

opportunity for discovery before a summary judgment hearing, it must file

either an affidavit explaining the need for further discovery or a verified

motion for continuance.”

269

Failure to do so waives the contention on appeal

that the nonmovant did not have an adequate time for discovery.

270

As noted

earlier, Rule 166a(g) specifically provides that the trial court may deny the

motion for summary judgment, continue the hearing to allow additional

discovery, or “make such other order as is just.”

271

In contrast to Rule 166a(i), the no-evidence subsection, Rule 166a(b)

provides that a defending party may move for traditional summary judgment

at any time.

272

Because the rules allow for a defendant to file for a traditional

summary judgment at any time, that does not mean that the trial court must

grant it. It is not mandatory for the trial court to grant a continuance simply

because it is uncontroverted and in proper form.

273

When reviewing a trial court’s order denying a motion for continuance, the

courts consider on a case-by-case basis whether the trial court committed a clear

abuse of discretion.

274

A trial court “abuses its discretion when it reaches a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial

267. TEX. R. CIV. P. 166a(g).

268. TEX. R. CIV. P. 166a(i).

269. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); see also Enterprising

Gals of Texas, Inc. v. Sprehe, No. 01-17-00063-CV, 2018 WL 3580998, at *1 (Tex. App.—Fort

Worth July 26, 2018, no pet. h.) (applying TEX. R. CIV. P. 251, which requires that “no continuance

shall be granted except for sufficient cause supported by affidavit, or by consent of the parties or

operation of law,” to determine the trial court did not abuse its discretion by denying a fourth motion

for continuance that was not verified or supported by an affidavit.)

270. Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 304 (Tex. App.—Houston [1st Dist.] 1999,

pet. denied); RHS Interests Inc. v. 2727 Kirby Ltd., 994 S.W.2d 895, 897 (Tex. App.—Houston [1st

Dist.] 1999, no pet.).

271. TEX. R. CIV. P. 166a(g); see supra Part 1.I.C.

272. TEX. R. CIV. P. 166a(b).

273. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 292 n.142 (Tex. 2004).

274. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).

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error of law.”

275

The appellate court will not consider on appeal any reasons in

support of a motion for continuance that were not presented to the trial court.

276

2. Factors Considered in Granting Continuances

In determining whether a trial court abuses its discretion in denying

a motion for continuance based on the need for additional discovery, the

supreme court has considered the following nonexclusive factors: “the

length of time the case has been on file, the materiality and purpose of the

discovery sought, and whether the party seeking the continuance has

exercised due diligence to obtain the discovery sought.”

277

Courts of

appeals have relied on a more detailed list of the following factors:

(1) the nature of the case, (2) the nature of the evidence necessary to

controvert the no-evidence motion, (3) the length of time the case was

active, (4) the amount of time the no-evidence motion was on file,

(5) whether the movant had requested stricter deadlines for discovery,

(6) the amount of discovery that already had taken place, and

(7) whether the discovery deadlines in place were specific or vague.

278

In Verkin v. Southwest Center One, Ltd., the appellate court found abuse

of discretion when the trial court refused to grant a motion for continuance in

a case that had been on file less than three months, when the motion stated

sufficient good cause, was uncontroverted, and was the first motion for

continuance.

279

Conversely, in Davis v. Bank of America, the appellate court

found a trial court did not abuse its discretion when the case had been pending

more than 16 months and the appellant failed to exercise due diligence to

obtain any discovery.

280

275. Id. (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).

276. D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 n.5 (Tex.

App.—Fort Worth 20013, no pet.).

277. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (citing BMC

Software Belg., N.V., 83 S.W.3d at 800–01 (discussing the diligence and length-of-time-on-file

factors)); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (materiality and

purpose); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 521–22

(Tex. 1995) (per curiam) (materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.

1988) (diligence); see also Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (using these factors to decide whether a trial court abused its discretion in

denying a motion for continuance).

278. D.R. Horton-Tex., Ltd., 416 S.W.3d at 223; McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.

App.—Houston [14th Dist.] 2008, no pet.); Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460,

467 (Tex. App.—Houston [14th Dist.] 2005, pet denied.).

279. Verkin v. Sw. Ctr. One, Ltd., 784 S.W.2d 92, 96 (Tex. App.—Houston [1st Dist.] 1989,

writ denied); see also Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510, 512 (Tex.

App.—Houston [1st Dist.] 1994, no writ).

280. No. 01-17-00230-CV, 2018 WL 3848430, at *3 (Tex. App.—Houston [1st Dist.] Aug.

14, 2018, no pet. h.).

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Nonmovants seeking additional time for discovery should “convince the

court that the requested discovery is more than a ‘fishing’ expedition, is likely to

lead to controverting evidence, and was not reasonably available beforehand

despite [the nonmovant’s] diligence.”

281

Conclusory allegations will not support

a request for continuance.

282

Nonmovants must state what specific depositions

or discovery products are material and show why they are material.

283

The party

moving for summary judgment, when appropriate, should try to convince the

court that the nonmovant’s discovery efforts are simply a delay tactic. For

example, the motion may be based on incontrovertible facts, involve pure

questions of law, or request discovery that relates to immaterial matters.

284

The no-evidence summary judgment rule specifically provides that a motion

for summary judgment can be filed only “[a]fter adequate time for discovery.”

285

Thus, nonmovants will argue in their motions for continuance that if they have

more time, they will be able to produce enough evidence to defeat the motion.

“Whether a non-movant has had adequate time for discovery . . . is ‘case

specific.’”

286

The factors the courts look to for no-evidence summary judgment

continuances, not surprisingly, mirror those articulated for traditional summary

judgments. “[T]here is no . . . minimum amount of time that a case must be

pending before a trial court may entertain a no-evidence summary-judgment

motion . . . .”

287

“The amount of time necessary to constitute ‘adequate time’

depends on the facts and circumstances of each case.”

288

Factors that a court may consider include “the amount of time the no-

evidence motion has been on file, whether the movant has requested stricter time

deadlines for discovery, the amount of discovery that has already taken place,

and whether the discovery deadlines that are in place are specific or vague.”

289

281. HITTNER ET AL., supra note 8, at 14–117 (emphasis omitted).

282. MKC Energy Invs., Inc. v. Sheldon, 182 S.W.3d 372, 379 (Tex. App.—Beaumont 2005,

no pet.).

283. Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.—Houston [1st Dist.] 2001,

no pet.).

284. See, e.g., Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517,

521 (Tex. 1995) (per curiam) (stating that in a contract dispute, “discovery sought by [the plaintiff]

is not necessary for the application of the contract to its subject matter, but rather goes to the issue

of the parties’ interpretation of the ‘absolute pollution exclusion’”).

285. TEX. R. CIV. P. 166a(i).

286. McClure v. Attebury, 20 S.W.3d 722, 729 (Tex. App.—Amarillo 1999, no pet.).

287. McInnis v. Mallia, 261 S.W.3d 197, 202 (Tex. App.—Houston [14th Dist.] 2008, no pet.);

see also TEX. R. CIV. P. 166a(i).

288. Lucio v. John G. & Marie Stella Kennedy Mem’l Found., 298 S.W.3d 663, 669 (Tex.

App.—Corpus Christi 2009, pet. denied); see also Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95

S.W.3d 336, 340 (Tex. App.—Dallas 2002, no pet.).

289. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.]

2000, pet. denied); see also Lucio, 298 S.W.3d at 669; Perrotta v. Farmers Ins. Exch., 47 S.W.3d

569, 576 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

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A nonmovant in a no-evidence summary judgment may argue that it is

entitled to the entire period allowed by the rule or court-imposed discovery

deadlines. Yet, courts have held that the court- or rule-imposed discovery

cutoff does not control the decision of whether an adequate time for discovery

has elapsed.

290

In one mass tort case, the court of appeals held that the plaintiffs had

enjoyed adequate time for discovery when the case had been pending for ten

years, and the plaintiffs had almost a year after the filing of the no-evidence

motion to conduct additional discovery.

291

In another case, which included a

sixteen-month bankruptcy stay, the court noted that factoring in the bankruptcy

stay, a year remained for discovery, and the stay did not prevent the plaintiff from

continuing to develop his case for those documents already in his possession.

292

In yet another case, the court held that three years and five months was an

adequate time for discovery; the plaintiff had adequate time to conduct discovery

on a fraud claim because the evidence necessary to defeat the no-evidence

motion—reliance and damages—“is the sort of evidence that should be

immediately available to a plaintiff.”

293

In Ford Motor Co. v. Castillo, the supreme court determined that neither

affidavits nor a verified motion for continuance were necessary when the trial

court refused to allow Ford to conduct any discovery.

294

The trial court had

granted a motion for summary judgment on the plaintiff’s breach of a settlement

claim in a products liability case. The supreme court determined that the trial

court abused its discretion by denying Ford the right to conduct discovery and

revised the judgment.

295

When a party receives notice of the summary judgment hearing in excess

of the twenty-one days required by Rule 166a, denial of a motion for continuance

based on a lack of time to prepare is not generally an abuse of discretion,

296

although sympathetic trial judges frequently grant them.

290. See Branum v. Nw. Tex. Healthcare Sys., Inc., 134 S.W.3d 340, 343 (Tex. App.—

Amarillo 2003, pet. denied).

291. In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998, no pet.).

292. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied).

293. Dickson Constr., Inc. v. Fid. & Deposit Co. of Md., 5 S.W.3d 353, 356 (Tex. App.—

Texarkana 1999, pet. denied).

294. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 662 (Tex. 2009).

295. Id. at 663.

296. See Hatteberg v. Hatteberg, 933 S.W.2d 522, 527 (Tex. App.—Houston [1st Dist.] 1994,

no writ); Cronen v. Nix, 611 S.W.2d 651, 653 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ

ref’d n.r.e.).

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I. Hearing/Submission

The notice provisions under Rule 166a are strictly construed.

297

Notice of hearing for a summary judgment motion is mandatory and

essential to due process.

298

A hearing or submission date must be set

because the time limits for responding to a motion for summary judgment

are keyed to the hearing or submission date. Unless there is a hearing or

submission date, the nonmovant cannot calculate its response due date,

and its due process rights are violated.

299

In Ready v. Alpha Building, the

Houston First Court of Appeals determined as inadequate indefinite

language in the notice of hearing that the summary judgment would be

submitted “after” specified dates.

300

Notice of a summary judgment hearing must be in writing.

301

Courts

consider electronic notice as being in writing. While notice of a hearing

is required, an oral hearing is not.

302

The day of submission of a motion

for summary judgment has the same meaning as the day of hearing.

303

A motion for summary judgment is submitted on written evidence.

304

Thus,

a hearing on a motion for summary judgment is a review of the written motion,

response, reply, if any, and attached evidence.

305

Addressing an issue at oral

argument in response to questions from the court is not sufficient to preserve

for review a ground that was not raised in the summary judgment motion.

306

297. See, e.g., Ready v. Alpha Bldg. Corp., 467 S.W.3d 580, 584 (Tex. App.—Houston [1st

Dist.] 2015, no pet.); Nexen Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d 412, 423 n.14 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

298. Ready, 467 S.W.3d at 584.

299. Martin v. Martin, Martin & Richards, Inc. 989 S.W.2d 357, 359 (Tex. 1998) (per curiam);

Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex. App.—Corpus Christi 2003, pet.

denied); Courtney v. Gelber, 905 S.W.2d 33, 34–35 (Tex. App.—Houston [1st Dist.] 1995, no writ)

(holding that even if all assertions in the motion for summary judgment are true, none justify the

trial court’s ruling on the motion without setting a hearing or submission date); see also Mosser v.

Plano Three Venture, 893 S.W.2d 8, 12 (Tex. App.—Dallas 1994, no writ) (“The failure to give

adequate notice violates the most rudimentary demands of due process of law.”).

300. Ready, 467 S.W.3d at 585–86.

301. Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 612 (Tex. App.—Houston [14th Dist.]

2009, pet. denied).

302. Martin, 989 S.W.2d at 359; Williams v. City of Littlefield, No. 07-07-0435-CV, 2008 WL

4381326, at *2 (Tex. App.—Amarillo Sept. 26, 2008, no pet.) (mem. op.) (“The fact that appellant

did not arrive at the courthouse before the completion of the summary judgment hearing is,

therefore, irrelevant to the trial court’s decision [to grant the summary judgment].”).

303. Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.—Tyler 2005, no pet.).

304. TEX. R. CIV. P. 166a(c).

305. Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 561 (Tex. App.—Dallas

2003, pet. denied).

306. McAllen Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. of Tex., 433 S.W.3d 535, 542 (Tex.

2014).

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Ordinarily, no oral testimony will be allowed at the hearing on a motion for

summary judgment.

307

Furthermore, the court may not consider at the hearing oral

objections to summary judgment evidence that are not a part of the properly filed,

written summary judgment pleadings.

308

However, the El Paso Court of Appeals

considered the reporter’s record of the summary judgment hearing to determine

that the trial court did not rule on written evidentiary objections.

309

Nonetheless,

good practice (and usually required practice) is for all summary judgment

pleadings, evidence and rulings to be presented in writing.

If the trial court takes the motion for summary judgment under advisement

and one or both of the parties submit additional evidence, each should ask for leave

of court and obtain a written order granting leave to file. Summary judgment

evidence may be filed late with leave of court. The party filing the late evidence

must obtain a written order granting leave to file.

310

When a trial court is faced with “overlapping and intermingling” motions for

summary judgment and other matters, such as challenges to expert witness

testimony, that allow oral testimony, the trial court should conduct separate

hearings.

311

At the summary judgment hearing, counsel should strenuously oppose

any attempt to use oral testimony to deviate from the written documents on file,

and the court should neither permit nor consider such testimony.

312

Parties may

restrict or expand the issues “expressly presented” in writing if the change meets

the requirements of Texas Rule of Civil Procedure 11.

313

“An oral waiver or

agreement made in open court satisfies [R]ule 11 if it is described in the judgment

or an order of the court.”

314

In Clement v. City of Plano, the court noted that “the

order granting the motion for summary judgment [did] not reflect any

agreement . . . . Therefore, counsel’s statements at the hearing, standing alone, did

307. TEX. R. CIV. P. 166a(c); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n.4 (Tex.

1992); Richards v. Allen, 402 S.W.2d 158, 160–61 (Tex. 1966).

308. But see Aguilar v. LVDVD, L.C., 70 S.W.3d 915, 917 (Tex. App.—El Paso 2002, no pet.)

(suggesting review of reporter’s record would be helpful in ascertaining if a ruling can be implied).

309. Id.

310. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (finding no order in

the record granting the party leave to file an affidavit late and therefore holding that the affidavit

was not properly before the court and could not be considered).

311. Liberty Mut. Fire Ins. Co. v. Hayden, 805 S.W.2d 932, 935 (Tex. App.—Beaumont 1991,

no writ); see also infra Part 1.II.H.1 (discussing expert opinion testimony).

312. . See El Paso Assocs., Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 19–20 (Tex. App.—

El Paso 1990, no writ) (affirming the sustaining of an objection to oral testimony at a summary

judgment hearing and declaring that no oral testimony was received); Nash v. Corpus Christi Nat’l

Bank, 692 S.W.2d 117, 119 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (concluding that it is

improper for a trial court to hear testimony of witnesses at a summary judgment hearing).

313. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). Rule

11 provides in part: “[N]o agreement between attorneys or parties touching any suit pending will be

enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it

be made in open court and entered of record.” TEX. R. CIV. P. 11.

314. Clement v. City of Plano, 26 S.W.3d 544, 549 (Tex. App.—Dallas 2000, no pet.),

overruled on other grounds by Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002).

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not amount to a [R]ule 11 exception and did not constitute a narrowing of the

issues.”

315

The summary judgment hearing generally need not be transcribed. As the

court noted in El Paso Associates, Ltd. v. J.R. Thurman & Co., to “permit ‘issues’

to be presented orally would encourage parties to request that a court reporter

record summary judgment hearings, a practice neither necessary, nor appropriate

to the purposes of such hearing.”

316

Nonetheless, in a 2018 opinion from the Texas

Supreme Court, the court quoted the nonmovant’s attorney and the trial judge from

the summary judgment hearing to provide background on the developments in a

case clarifying Texas law on sham affidavits.

317

J. Rulings and Judgment

After the hearing or submission, the next step is for the court to rule on the

motion. The court may act as soon as the date of submission or as late as never.

There is generally no procedure for a party to compel the court to rule on a pending

motion for summary judgment.

318

Mandamus relief is strictly limited. If the trial

judge fails to rule, “even though the delay in ruling on the motion causes expense

and inconvenience to the litigants, mandamus is not available to compel the trial

judge to rule on the pending motion for summary judgment.”

319

The advantage of obtaining an order from the trial court specifying the basis

for the summary judgment—usually a fruitless endeavor anyway—has been

removed.

320

Formerly, when a summary judgment order stated the specific

grounds upon which it was granted, a party appealing from such order need have

shown only that the specific grounds to which the order referred were insufficient

to support the order.

321

However, if any theory advanced in a motion for summary judgment

supports the granting of summary judgment, a court of appeals may affirm

315. Id.

316. El Paso Assocs., Ltd., 786 S.W.2d at 19.

317. Lujan v. Navistar, Inc., 555 S.W.3d 79, 83–84 (Tex. 2018); see also infra Part 1.II.F.5

(discussing Sham Affidavits).

318. C/S Sols., Inc. v. Energy Maint. Servs. Grp., LLC, 274 S.W.3d 299, 308 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (citing PATTON, supra note 8, § 7.04, at 7-8 to -9).

319. In re Am. Media Consol., 121 S.W.3d 70, 74 (Tex. App.—San Antonio 2003, no pet.)

(quoting PATTON, supra note 8, § 7.04, at 7-8 to -9).

320. See infra Part 1.V.I. (discussing judgments on appeal and the requirement of the court of

appeals to “consider all grounds on which the trial court rules”)

321. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995) (finding

that “[b]ecause the trial court granted [the defendant’s] motion without specifying the grounds, the

summary judgment will be upheld if either of the theories advanced by [the defendant] are

meritorious”); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) (holding that

if the trial court specifies the reasons for granting judgment, then proving that theory unmeritorious

would cause a remand).

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regardless of whether the trial court specified the grounds on which it relied.

322

The court of appeals should consider all the grounds on which the trial court rules

and may consider all the grounds the trial court does not rule upon.

323

Nonetheless, numerous opinions continue to recite that their consideration of all

issues is based on the fact that the trial court did not specify its reason for its ruling,

including opinions issued by the Texas Supreme Court.

324

To ensure the trial court’s intent to make a judgment final and appealable,

the supreme court suggests the inclusion of the following language in the

judgment: “This judgment finally disposes of all parties and all claims and is

appealable.”

325

The language is not mandatory.

K. Findings of Fact and Conclusions of Law

Occasionally, a trial judge will receive a request to file findings of fact

and conclusions of law after the granting of a motion for summary

judgment.

326

This request should be denied.

327

Neither findings of fact nor

conclusions of law are proper, including on a partial summary judgment and

incorporated into findings of fact and conclusions of law in the later-tried

bench trial. The reason findings of fact and conclusions of law have no place

in summary judgment practice is that the judge has no factual disputes to

resolve.

328

The most potential for damage concerns the appellate timetable.

Unlike findings of fact and conclusions of law requested in proper

circumstances, a request for them will not extend the appellate timetable in a

summary judgment case.

329

322. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Harwell, 896

S.W.2d at 173.

323. Cincinnati Life Ins. Co., 927 S.W.2d at 625 (allowing alternative theories would be in the

interest of judicial economy).

324. See, e.g., W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004); Seim v. Allstate Texas Lloyds, No. 02-16-

00050-CV, 2018 WL 5832106 (Tex. App.—Fort Worth Nov. 8, 2018, no pet. h.); Pipkin v. Kroger

Tex. L.P., 383 S.W.3d 655, 662 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

325. In re Daredia, 317 S.W.3d 247, 248 (Tex. 2010) (per curiam) (quoting Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 206 (Tex. 2001)); see infra Part 1.V.E (discussing summary judgment

appeals and the requirement of finality of judgment).

326. See, e.g., W. Columbia Nat’l Bank v. Griffith, 902 S.W.2d 201, 203 (Tex. App.—Houston

[1st Dist.] 1995, writ denied) (noting that the appellant complained that the trial court did not file

findings of fact and conclusions of law).

327. Id. at 204.

328. Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 352 (Tex. App.—Fort Worth

2018, pet. denied) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas:

State and Federal Practice, 52 HOUS. L. REV. 773, 816 (2015)).

329. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); see Linwood v. NCNB

Tex., 885 S.W.2d 102, 103 (Tex. 1994) (per curiam). Texas appellate procedure provides that the

usual thirty days for perfecting an appeal is extended to ninety days upon the filing of findings of

fact and conclusions of law, if they are either required by the rules of civil procedure, or if not

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L. Partial Summary Judgments

Motions for partial summary judgment are used to dispose of a portion of the

claims or some of the parties in a lawsuit. While they present certain opportunities,

they also can give rise to problems. One trap arises when a summary judgment

granted for one defendant becomes final even though it does not specifically

incorporate a partial summary judgment granted in favor of the only other

defendant.

330

A partial judgment should refer to those specific issues addressed by the

partial judgment. In Greene v. Farmers Insurance Exchange, the supreme

court indirectly approved of the following severance language:

The parties having agreed to severance of all remaining claims and

defenses, so that a final appealable Judgment can and is HEREBY

entered in this original cause. All claims, causes, actions or defenses

which are not disposed of by judgment on Plaintiff’s breach-of-

contract cause of action or the severance as described herein are

otherwise disposed of and are dismissed.

331

A partial summary judgment can be made final by requesting a severance

of the issues resolved or parties addressed by the motion for partial summary

judgment from those issues or parties remaining.

332

“Any claim against a party

may be severed and proceeded with separately.”

333

“A severance splits a single

suit into two or more independent actions, each action resulting in an appealable

final judgment.”

334

Trial courts have broad discretion to sever claims.

335

severance is improper only if the trial court abuses its discretion.

336

For example,

in State v. Morello, the trial court granted a summary judgment against one of

required, could properly be considered by the appellate court. TEX. R. APP. P. 26.1(a)(4); see also

infra Part 1.V (discussing summary judgment appeals).

330. Ramones v. Bratteng, 768 S.W.2d 343, 344 (Tex. App.—Houston [1st Dist.] 1989, writ

denied); see also infra Part 1.V.E (discussing summary judgment appeals and the requirement of

finality of judgment).

331. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.5 (Tex. 2014) (quoting Greene v.

Farmers Ins. Exch., No. DC-08-11723, 2011 WL 8897980 (134th Dist. Ct., Dallas County, Tex.

Mar. 21, 2011)).

332. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 633 (Tex. 2010);

Harris Cty. Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex. 2001) (per curiam); see Hunter

v. NCNB Tex. Nat’l Bank, 857 S.W.2d 722, 725 (Tex. App.—Houston [14th Dist.] 1993, writ

denied) (stating that a claim is properly severable when: “(1) the controversy involves more than

one cause of action; (2) the severed claim is one that would be the proper subject of a lawsuit if

independently asserted; and (3) the severed claim is not so interwoven with the remaining action that

they involve the same facts and issues.” (citing Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793

S.W.2d 652, 658 (Tex. 1990))).

333. TEX. R. CIV. P. 41.

334. Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985).

335. State v. Morello, 547 S.W.3d 881, 889 (Tex. 2018); Liberty Nat’l Fire Ins. Co. v. Akin,

927 S.W.2d 627, 629 (Tex. 1996).

336. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007).

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two defendants and a contemporaneous severance.

337

The supreme court

determined that the trial court did not abuse its discretion in severing claims in

this controversy that involved more than one cause of action, even though the

claims were factually intertwined.

338

Similarly, in Morgan v. Compugraphic

Corp., the supreme court held that severance was proper in a case against two

defendants after summary judgment had been granted against one defendant

339

Severance of a partial summary judgment does not automatically result in

a final, appealable order. All of the parties and issues in the severed part of the

case must be disposed of. In Diversified Financial Systems, Inc. v. Hill, Heard,

O’Neal, Gilstrap & Goetz, P.C., the severance order stated that the separate

action should “proceed as such to final judgment or other disposition in this

Court.”

340

The supreme court determined the order clearly precluded a final

judgment until the later judgment was signed.

341

An order granting summary

judgment concerning a claim but not disposing of all issues presented in a

counterclaim is interlocutory.

342

After an interlocutory, partial summary judgment is granted, the issues it

decides cannot be litigated further, unless the trial court sets aside the partial

summary judgment or the summary judgment is reversed on appeal.

343

However,

a plaintiff may take a nonsuit at any time before the trial court grants a

motion for summary judgment.

344

A nonsuit extinguishes a case from the

moment the nonsuit is filed.

345

A trial court may not withdraw a partial

summary judgment after the close of evidence in such a manner that the party is

precluded from presenting the issues decided in the partial summary

337. Morello, 547 S.W.3d at 884.

338. Id. at 889.

339. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733–34 (Tex. 1984).

340. Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795,

795 (Tex. 2001) (per curiam).

341. Id.; see also Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex. App.—Dallas 2002, no pet.)

(“As a rule, a severance of an interlocutory judgment into a severed action makes it final if all claims

in the severed action have been disposed of, unless the order of severance indicates further

proceedings are to be had in the severed action.”).

342. Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990) (per curiam) (“If

a summary judgment does not refer to or mention issues pending in a counterclaim, then those issues

remain unadjudicated.”).

343. Martin v. First Republic Bank, Fort Worth, N.S., 799 S.W.2d 482, 488–89 (Tex. App.—

Fort Worth 1990, writ denied); Linder v. Valero Transmission Co., 736 S.W.2d 807, 810 (Tex.

App.—Corpus Christi 1987, writ ref’d n.r.e.).

344. Cook v. Nacogdoches Anesthesia Grp., L.L.P., 167 S.W.3d 476, 482 (Tex. App.—Tyler

2005, no pet.).

345. H2O Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 625 (Tex. App.—Houston [1st

Dist.] 2014, pet. denied).

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judgment.

346

A partial summary judgment survives a nonsuit.

347

The nonsuit

results in a dismissal with prejudice for the issues decided in the partial summary

judgment.

348

M. Motions for Rehearing

Occasionally, a party in a summary judgment proceeding will file a motion

for rehearing or new trial following the granting of a motion for summary

judgment.

349

A motion for new trial is unnecessary to preserve complaints

directed at the summary judgment “because a motion for new trial is not a

prerequisite for an appeal of a summary judgment proceeding.”

350

Unless the

movant on rehearing shows that the evidence “could not have been discovered

through due diligence prior to the ruling on a summary judgment motion,”

additional evidence may not be considered on rehearing.

351

However, a motion for new trial is necessary to preserve error concerning

arguments related to a party’s physical absence from the summary judgment

hearing.

352

Another reason to file a motion for new trial is to extend appellate

timetables. Just as for an appeal from a jury trial, a motion for new trial following

a grant of summary judgment extends appellate timetables.

353

While not

technically a request for a new trial, safe practice is to title a motion for rehearing

as a “Request for Rehearing and Motion for New Trial” so that there is no issue

concerning whether the pleading is sufficient to extend the timetables.

If a court denies a summary judgment motion, it has the authority to

reconsider and grant a motion for summary judgment,

354

or change or modify

the original order.

355

Motions for new trial are also implicated when a non-

346. Bi-Ed, Ltd. v. Ramsey, 935 S.W.2d 122, 123 (Tex. 1996) (per curiam).

347. See Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex. 1998) (per curiam); see

also Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam) (“To give any

force to the partial summary judgment provisions, those judgments must withstand a nonsuit.”).

348. Newco Drilling Co., 960 S.W.2d at 656. But see Frazier v. Progressive Cos., 27 S.W.3d

592, 594 (Tex. App.—Dallas 2000, pet. dism’d by agr.).

349. Nail v. Thompson, 806 S.W.2d 599, 602 (Tex. App.—Fort Worth 1991, no writ) (“A

motion for rehearing is equivalent to a motion for new trial.”); Hill v. Bellville Gen. Hosp., 735

S.W.2d 675, 677 (Tex. App.—Houston [1st Dist.] 1987, no writ).

350. Lee v. Braeburn Valley W. Civic Ass’n, 786 S.W.2d 262, 263 (Tex. 1990) (per curiam).

351. McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied).

352. Lee, 786 S.W.2d at 262–63; see also Monk v. Westgate Homeowners’ Ass’n, No. 14-07-

00886-CV, 2009 WL 2998985, at *3 (Tex. App.—Houston [14th Dist.] Aug. 11, 2009, no pet.)

(mem. op.) (requiring the nonmovant to file a motion for new trial “to notify the trial court that he

did not . . . appear at the summary judgment hearing because he did not receive timely notice of it”).

353. See Padilla v. LaFrance, 907 S.W.2d 454, 458–59 & n.7 (Tex. 1995).

354. Bennett v. State Nat’l Bank, 623 S.W.2d 719, 721 (Tex. Civ. App.—Houston [1st Dist.]

1981, writ ref’d n.r.e.).

355. R.I.O. Sys., Inc. v. Union Carbide Corp., 780 S.W.2d 489, 492 (Tex. App.—Corpus

Christi 1989, writ denied).

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movant does not respond to a motion for summary judgment. The

Craddock rule

356

concerning refusal to grant motions for rehearing for

default judgments does not apply to summary judgment proceedings in

so-called default summary judgments where the nonmovant fails to

respond to the motion when it had the opportunity to seek a continuance

or obtain permission to file a late response.

357

In Carpenter v. Cimarron

Hydrocarbons Corp., the supreme court emphasized that it was not

deciding whether Craddock would apply when the “nonmovant discovers

its mistake after the summary-judgment hearing or rendition of

judgment.”

358

Then, in Wheeler v. Green, the supreme court considered a

case in which deemed admissions formed the basis for a summary

judgment and were challenged first in a motion for new trial.

359

The court

determined that “when a party uses deemed admissions to [attempt] to

preclude presentation of the merits of a case, the same due-process

concerns arise” as in merits-preclusive sanctions.

360

The court held that

under the facts in that case, the trial court should have granted a motion

for new trial and allowed the deemed admissions to be withdrawn.

361

party may properly raise its complaints about lack of notice of a certain

submission date in a timely motion for new trial.

362

Additionally, in Nickerson v. E.I.L. Instruments, Inc., the Houston

First Court of Appeals held that the trial court’s action in granting the

nonmovant’s motion for new trial, immediately reconsidering the motion

for summary judgment, and again granting judgment, could not cure a

defect in notice of the hearing.

363

Once the motion for new trial was granted,

the nonmovant should have been given reasonable notice of the hearing.

364

356. Under Craddock, the trial court abuses its discretion if it denies a motion for a new trial

after a default judgment if the nonmovant establishes:

[1.] [T]he failure of the defendant to answer before judgment was not intentional, or the

result of conscious indifference on his part, but was due to a mistake or an

accident; . . . [2.] the motion for a new trial sets up a meritorious defense[;] and [3.] [the

motion] is filed at a time when the granting thereof will occasion no delay or otherwise

work an injury to the plaintiff.

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).

357. See id. at 126; Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 798–99 (Tex. App.—

Houston [14th Dist.] 1998, no pet.).

358. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002).

359. Wheeler v. Green, 157 S.W.3d 439, 441–42 (Tex. 2005) (per curiam).

360. Id. at 443.

361. Id. at 444.

362. See Ready v. Alpha Bldg. Corp., 467 S.W.3d 580 (Tex. App.—Houston [1st Dist.] 2015,

no pet.).

363. Nickerson v. E.I.L. Instruments, Inc., 817 S.W.2d 834, 836 (Tex. App.—Houston [1st

Dist.] 1991, no writ).

364. Id.

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The court decided that seven days’ notice of the hearing after granting a

motion for new trial was reasonable notice.

365

N. Sanctions

A motion for summary judgment asserting that there is no genuine issue of

material fact is not groundless merely by the filing of a response that raises an issue

of fact.

366

This tenet is true “even if the response was or could have been anticipated

by the movant.”

367

Also, denial of a summary judgment alone is not grounds for

sanctions.

368

Rule 166a has its own particular sanctions provision concerning affidavits

filed in bad faith. If a trial court concludes that an affidavit submitted with a

motion for summary judgment was presented “in bad faith or solely for the

purpose of delay,” the court may impose sanctions on the party employing the

offending affidavits.

369

Such sanctions include the reasonable expenses incurred

by the other party, including attorneys’ fees, as a result of the filing of the

affidavits.

370

Sanctions for submitting affidavits in bad faith may also include

holding an offending party or attorney in contempt.

371

The comment to Rule

166a states that no-evidence motions for summary judgment are subject to

sanctions provided for under existing law.

372

II. SUMMARY JUDGMENT EVIDENCE

Rule 166a specifies that the following may constitute summary

judgment evidence: deposition transcripts, interrogatory answers, other

discovery responses, pleadings, admissions, affidavits (including sworn or

certified papers attached to the affidavits), stipulations of the parties, and

authenticated or certified public records.

373

365. Id. (holding that the court should have given “at least seven days notice” of the summary

judgment hearing).

366. GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993).

367. Id.

368. Id.

369. TEX. R. CIV. P. 166a(h). Sanctions assessed for affidavits made in bad faith must be

directed solely against the party, and not the party’s attorney. Id.; Ramirez v. Encore Wire Corp.,

196 S.W.3d 469, 476 (Tex. App.—Dallas 2006, no pet.).

370. TEX. R. CIV. P. 166a(h).

371. Id.

372. Id.; TEX. R. CIV. P. 166a cmt.—1997.

373. TEX. R. CIV. P. 166a(c).

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A. General Principles

When evidence is required, a movant must establish with competent

evidence that it is entitled to judgment as a matter of law.

374

In determining

whether evidence is competent, the rules of evidence apply equally in trial and

summary judgment proceedings.

375

Thus, summary judgment evidence must be

presented in a form that would be admissible in a conventional trial

proceeding.

376

Neither the motion for summary judgment, nor the response, even if sworn,

is proper summary judgment proof.

377

“When both parties move for summary

judgment, the trial court may consider the combined summary-judgment

evidence to decide how to rule on the motions.”

378

“The proper scope for a trial

court’s review of evidence for a summary judgment encompasses all evidence

on file at the time of the hearing or filed after the hearing and before judgment

with the permission of the court.”

379

A nonmovant responding to a summary judgment motion is not

required to “needlessly duplicate evidence [that is] already found in

the court’s file.” Instead, he can request in his motion that the trial court

take judicial notice of evidence already in the record or, alternatively,

incorporate that evidence in his motion by reference.

380

Evidence need not be attached to the motion itself, but rather may be

attached to the brief in support.

381

The standard of review on appeal of the

trial court’s admission of summary judgment evidence is abuse of

374. Id.

375. Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 163 (Tex. 2018) (per curiam); Fort

Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881–82 (Tex. 2009) (per curiam);

United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam).

376. Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 191 (Tex. App.—Houston [14th

Dist.] 1993, no writ) (citing Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971)).

377. See Hidalgo, 462 S.W.2d at 545 (“[W]e refuse to regard pleadings, even if sworn, as

summary judgment evidence.”); see also Webster v. Allstate Ins. Co., 833 S.W.2d 747, 749 (Tex.

App.—Houston [1st Dist.] 1992, no writ); Keenan v. Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394

(Tex. App.—Houston [14th Dist.] 1988, no writ) (stating that an affidavit that simply adopts a

pleading is insufficient to support a summary judgment motion); Nicholson v. Mem’l Hosp. Sys.,

722 S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (holding that

responses do not constitute summary judgment evidence); Trinity Universal Ins. Co. v. Patterson,

570 S.W.2d 475, 478 (Tex. Civ. App.—Tyler 1978, no writ) (expanding the Hidalgo decision to

apply to summary judgment motions). For exceptions to this rule, see infra Part 1.II.B, discussing

pleadings as summary judgment evidence.

378. Jon Luce Builder, Inc. v. First Gibraltar Bank, F.S.B., 849 S.W.2d 451, 453 (Tex. App.—

Austin 1993, writ denied) (per curiam).

379. Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 503 (Tex. App.—Houston

[1st Dist.] 1995, no writ).

380. Ramirez v. Colonial Freight Warehouse Co., 434 S.W.3d 244, 252 (Tex. App.—Houston

[1st Dist.] 2014, pet. denied) (alteration in original) (citation omitted) (quoting Saenz v. S. Union

Gas Co., 999 S.W.2d 490, 494 (Tex. App.—El Paso 1999, pet. denied)).

381. Wilson v. Burford, 904 S.W.2d 628, 629 (Tex. 1995) (per curiam).

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discretion.

382

“To obtain reversal of a judgment based on error in the

admission or exclusion of evidence, an appellant must show that the trial

court’s ruling was in error and that the error probably caused the rendition

of an improper judgment.”

383

Unlike a trial on the merits, “a summary

judgment cannot be based on an attack of a witness’s credibility.”

384

A claim of inability to obtain discovery vital to defeat a summary judgment

may be waived in the absence of a failure to request a continuance on that basis.

385

1. Reasonable Juror Standard

Since City of Keller, the supreme court applies a “reasonable juror”

standard to determine whether a fact issue exists.

386

For example, in Buck

v. Palmer, the court reversed a summary judgment that held that a

minority shareholder’s communications were conclusive evidence of

dissolution of the joint venture.

387

The court determined that reasonable

jurors could differ concerning “whether [a minority owner of a joint

venture] intended to dissolve the partnership, merely express a desire to

relinquish his interest at a later time, or simply engaged in hyperbole in

light of his frustrations with the venture’s poor performance.”

388

In Helix Energy Solutions Group, Inc. v. Gold,

389

citing Keller, the

supreme court applied the reasonable jury standard to conclude the

evidence was conclusive that a craft was not a “vessel in navigation.”

Thus, the plaintiff did not have seaman status under the Jones Act.

“Typically, evidence is conclusive when ‘it concerns physical facts that

cannot be denied’ or ‘when a party admits it is true.’”

390

The court’s

review of the relevant facts led it to the conclusion that an overhaul

rendered the craft incapable of navigation during the plaintiff’s entire time

onboard.

391

The court noted, “We cannot disregard ‘conclusive

evidence’—evidence upon which ‘reasonable people could not differ in

their conclusions.’”

392

382. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30–31 (Tex. 1997) (per curiam).

383. Patrick v. McGowan, 104 S.W.3d 219, 221 (Tex. App.—Texarkana 2003, no pet.); see E-

Z Mart Stores, Inc. v. Ronald Holland’s A-Plus Transmission & Auto., Inc., 358 S.W.3d 665, 676

(Tex. App.—San Antonio 2011, pet. denied); see also TEX. R. APP. P. 44.1(a)(1).

384. State v. Durham, 860 S.W.2d 63, 66 (Tex. 1993).

385. Elizondo v. Krist, 415 S.W.3d 259, 267–69 (Tex. 2013); see supra Part 1.I.H.

(Continuances).

386. See infra Part 1.V.F.

387. Buck v. Palmer, 381 S.W.3d 525, 526, 528 (Tex. 2012) (per curiam).

388. Id. at 528.

389. Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 436 (Tex. 2017).

390. Id. at 431 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).

391. Id. at 439.

392. Id. at 431 (quoting City of Keller, 168 S.W.3d at 815).

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56 SOUTH TEXAS LAW REVIEW [Vol. 60:1

2. Time for Filing

Summary judgment evidence must be filed by the same deadline as the

motion or response it supports.

393

Evidence may be late-filed only with leave

of court.

394

There is no deadline by which a reply must be filed, so evidence

filed in support of a reply may be filed within twenty-one days of the hearing

only with leave of court.

395

If evidence is filed late without leave, that

evidence will not be considered as being before the court.

396

“Summary

judgment evidence must be submitted, at the latest, by the date the summary

judgment was [signed].”

397

The evidentiary exclusion found in Texas Rule of Civil Procedure

193.6,

398

which applies to the exclusion of evidence due to an untimely

response to a discovery request, applies to summary judgment

proceedings.

399

Thus, the supreme court has upheld the striking of an

expert’s affidavit because the plaintiff did not timely disclose the expert

under the parties’ scheduling order.

400

Under Texas Rule of Civil

Procedure 193.6, a party may overcome the exclusion by establishing

good cause or the lack of unfair surprise or unfair prejudice.

401

3. Unfiled Discovery

The Texas Rules of Civil Procedure no longer require the filing of most

discovery with the trial court. The discovery material that is not filed is specified

393. TEX. R. CIV. P. 166a(c).

394. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).

395. See id.; Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.—San Antonio 2010, pet. denied).

396. Benchmark Bank, 919 S.W.2d at 663; Garcia, 311 S.W.3d at 36.

397. Priesmeyer v. Pac. Sw. Bank, F.S.B., 917 S.W.2d 937, 939 (Tex. App.—Austin 1996, no

writ) (per curiam).

398. Rule 193.6 provides in part:

(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or

supplement a discovery response in a timely manner may not introduce in evidence the

material or information that was not timely disclosed, or offer the testimony of a witness

(other than a named party) who was not timely identified, unless the court finds that:

(1) there was good cause for the failure to timely make, amend, or supplement the

discovery response; or

(2) the failure to timely make, amend, or supplement the discovery response will not

unfairly surprise or unfairly prejudice the other parties.

TEX. R. CIV. P. 193.6(a).

399. Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (per

curiam).

400. Id. at 882 (“The trial court struck the expert’s affidavit and did not consider it in granting

the summary judgment.”).

401. Id. (citing TEX. R. CIV. P. 193.6(b)).

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in Rule 191.4(a).

402

Discovery material that must be filed is specified in Rule

191.4(b).

403

A subsection to the summary judgment rule, Rule 166a(d), requires that a

party may either attach the evidence to the motion or response or file a notice

containing specific references to the unfiled material to be used, as well as a

statement of intent to use the unfiled evidence as summary judgment proof.

404

Specifically, Rule 166a(d) provides:

(d) Appendices, References and Other Use of Discovery Not Otherwise

on File. Discovery products not on file with the clerk may be used as

summary judgment evidence if copies of the material, appendices

containing the evidence, or a notice containing specific references to

the discovery or specific references to other instruments, are filed and

served on all parties together with a statement of intent to use the

specified discovery as summary judgment proofs: (i) at least twenty-

one days before the hearing if such proofs are to be used to support the

summary judgment; or (ii) at least seven days before the hearing if

such proofs are to be used to oppose the summary judgment.

405

Thus, Rule 166a(d) provides three methods to present unfiled discovery to

the trial court in a summary judgment motion or response. A party may file the

discovery with the trial court, file an appendix containing the evidence, or simply

file a notice with specific references to the unfiled discovery. If the actual

documents are before the trial court, the rule does not require that the proponent of

the evidence provide specific references to the discovery for the trial court to

consider it.

406

Despite the wording of the rule that makes it appear that a “statement

of intent” may be sufficient without the actual proof attached, some courts of

402. Rule 191.4(a) provides:

(a) Discovery Materials Not to Be Filed. The following discovery materials must not be

filed:

(1) discovery requests, deposition notices, and subpoenas required to be served only on

parties;

(2) responses and objections to discovery requests and deposition notices, regardless on

whom the requests or notices were served;

(3) documents and tangible things produced in discovery; and

(4) statements prepared in compliance with Rule 193.3(b) or (d).

TEX. R. CIV. P. 191.4(a).

403. Rule 191.4(b) provides:

(b) Discovery Materials to Be Filed. The following discovery materials must be filed:

(1) discovery requests, deposition notices, and subpoenas required to be served on

nonparties;

(2) motions and responses to motions pertaining to discovery matters; and

(3) agreements concerning discovery matters, to the extent necessary to comply with

Rule 11.

TEX. R. CIV. P. 191.4(b).

404. TEX. R. CIV. P. 166a(d).

405. Id.

406. Id.; Barraza v. Eureka Co., 25 S.W.3d 225, 228 (Tex. App.—El Paso 2000, pet. denied).

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appeals have refused to consider such proof if the appellate record does not

demonstrate that the evidence was filed with the trial court when the motion for

summary judgment order was entered.

407

4. Objections to Evidence

For something as seemingly simple as objecting to evidence, attempts

to do so in a summary judgment proceeding are fraught with complications.

While these complications continue to exist, in Seim v. Allstate Texas

Lloyds,

408

the Texas Supreme Court addressed the confusion and resolved

many of the conflicts among the courts of appeals.

409

At its most basic level, the rules of error preservation that apply in trial

also apply in summary judgment proceedings.

410

To preserve a complaint for

appellate review that summary judgment evidence is inadmissible, (1) a party

must complain to the trial court in a timely request, objection, or motion; and

(2) the trial court must rule or refuse to rule.

411

Nonetheless, there are multiple

issues that must be considered in determining the best practice to follow in

objecting to summary judgment evidence.

Explicit ruling generally required. In Seim v. Allstate Lloyds, the

supreme court resolved the differences among courts of appeals on error

preservation of evidentiary objections by approving the approach that, unless

the record shows a clearly implied ruling by the trial court, trial courts must

expressly rule on evidentiary objections in writing.

412

The court specifically

approved of the approach taken by the Houston Fourteenth Court of Appeals

and the San Antonio Fourth Court of Appeals.

413

Thus, the court endorsed the

following practices:

 Practitioners should incorporate all of their objections to

summary judgment evidence in proposed orders granting or

denying summary judgment;

407. See, e.g., Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283–84 (Tex. App.—San

Antonio 1999, no writ).

408. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164–66 (Tex. 2018) (per curiam).

409. See generally, Lynne Liberato & Natasha Breaux, Objecting to Summary Judgment

Evidence in State Court: Recent Clarifications and Remaining Complications, HOUSTON LAWYER,

October 19, 2018.

410. Id.

411. TEX. R. APP. P. 33.1(a); Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d

314, 317 (Tex. 2012) (per curiam).

412. See Seim, 551 S.W.3d at 166.

413. Id. (“We hold that the Fourth and the Fourteenth courts have it right.”) quoting with

approval Dolcefino v. Randolph, 19 S.W.3d 906, 926–27 (Tex. App.—Houston [14th Dist.] 2000,

pet. denied).

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 The party asserting the objections should obtain a written ruling

at, before, or very near the time the trial court rules on the

motion for summary judgment (or risk waiver);

 The trial court should disclose, in writing, its rulings on all

objections to summary judgment evidence at or before the time

it enters the order granting or denying the summary

judgment.

414

In limited circumstances a ruling may be implicit. In Seim, the court

did not close the door to implicit rulings on objections to summary judgment

evidence. The Seim court cited its decision in In re Z.L.T., noting that the

ruling in that case was implicit because the implication was “clear” that the

court denied a movant’s request.

415

In re Z.L.T. did not involve a summary

judgment, but rather an inmate request for the court to issue a bench warrant.

In evaluating whether the ruling was sufficient to present an issue for

appellate review, the court explained that by proceeding to trial without a

bench warrant, it was clear that the trial court implicitly denied the inmates

request.

416

In contrast, nothing in the record in Seim served to clearly imply a ruling

by the trial court on the movant’s objections. The court noted: “Indeed, even

without the objections, the trial court could have granted summary judgment

against the [nonmovants] if it found that their evidence did not generate a

genuine issue of material fact.”

417

Thus, the court determined that the court

of appeals wrongly disregarded the objected to evidence, and it remanded the

case for the court of appeals to determine, even with the objections waived

and the evidence considered, whether the movant was still entitled to a

summary judgment.

418

Whether a defect is one of form or substance determines whether it

can be waived. Failure to object to the form of summary judgment evidence

414. Id. (citing Dolcefino, 19 S.W.3d at 926); see also Exxon Mobil Corp. v. Rincones, 520

S.W.3d 572 (Tex. 2017).

415. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).

416. Id. An example of a court holding that a ruling was implicit was where the nonmovant

sought more time to obtain a business records affidavit to support an appraisal of the properties in

dispute. In Homes v. WMI Properties I, Ltd., the court determined that the granting of the summary

judgment was an implicit ruling on the nonmovant’s request for additional time to obtain the

business records affidavit. Homes v. WMI Props. I, Ltd., No. 09-15-00165-CV, 2016 WL 1468676,

at *1 (Tex. App.—Beaumont Apr. 14, 2016, pet. denied). In an example that dealt with the failure

of the court to rule on objections, the appellant complained in his motion for new trial following the

court’s refusal to act on his objections and the trial court refused to rule. Alejandro v. Bell, 84

S.W.3d 383, 388 (Tex. App.—Corpus Christi 2002, no pet.); see also In re Estate of Schiwetz, 102

S.W.3d 355, 360–61 (Tex. App.—Corpus Christi 2003, pet. denied).

417. Seim, 551 S.W.3d at 166.

418. Id.

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waives any defects concerning form. Objections to the substance of summary

judgment evidence may be raised for the first time on appeal.

419

In Seim, the court addressed this distinction between substantive and

form defects. Specifically, it reaffirmed that failure of an affidavit to include

a jurat was a defect in form that could not be first complained of on appeal.

420

While Seim settled the issue in regard to an affidavit without a jurat, there

remain inconsistencies among the courts of appeals concerning

characterizations of certain defects as defects of form or of substance.

421

Nonetheless, the implication in the Seim case is clear from the supreme

court’s determination that such an obvious defect as the omission of a jurat

(or to otherwise show that an affidavit was sworn to) is a defect in form that

is waived without a ruling on the related objection.

422

The supreme court will

look with disfavor on determinations that defects concern substance. The

wisest practice is to present all objections in writing and obtain a written

ruling on them by the trial court.

There are additional requirements to assert objections and

secure a written ruling. The objection to summary judgment evidence

must be specific.

423

For example, in Womco, Inc. v. Navistar International

Corp., the Tyler Court of Appeals held that an objection to a paragraph in

an affidavit as a legal conclusion was itself conclusory because it failed

to identify which statement in the paragraphs were objectionable or offer

any explanation concerning the precise bases for objection.

424

Concerning

the requirement for a written ruling, a docket sheet entry does not meet this

requirement.

425

In light of the language by the supreme court in Seim consistently

419. An objection that affidavit testimony is conclusory is an objection to substance that can

be raised for the first time on appeal. Willis v. Nucor Corp., 282 S.W.3d 536, 548–49 (Tex.App.—

Waco 2008, no pet.). “[A]ny objections relating to substantive defects (such as lack of relevancy,

conclusory) can be raised for the first time on appeal and are not waived by the failure to obtain a

ruling from the trial court.” McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied); An objection that alleges that evidence is conclusory is a defect of

substance. Willis, 282 S.W.3d at 547; Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235,

241–42 (Tex. App.—Waco 2003, no pet.).

420. Seim, 551 S.W.3d at 166 (citing Mansions in the Forest, L.P. v. Montgomery County, 365

S.W.3d 314, 317–18 (Tex. 2012)).

421. For example, some courts have held that an affiant’s lack of personal knowledge is a

defect in form. Wash. DC Party Shuttle, LLC v. IGuide Tours, LLC, 406 S.W.3d 723, 731–36 (Tex.

App.—Houston [14th Dist.] 2013, pet. denied) (en banc) (detailing split in authority).

422. Seim, 551 S.W.3d at 166.

423. Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.);

Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 434 (Tex. App.—San Antonio

1993, writ denied) (“To preserve error, an objection must state the specific grounds for the requested

ruling, if these grounds are not apparent from the context of the objection.”).

424. Womco, Inc. v. Navistar Int’l Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler 2002, no

pet.).

425. Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.—Dallas

1988, no writ).

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referring to a “written” ruling, presumably an oral ruling contained in a reporters

record would not be sufficient

426

—although arguably the reporters record itself is

“written” and therefore could meet with “written” requirement. Absent a proper

order sustaining an objection, all of the summary judgment evidence, including

any evidence objected to by a party, is proper evidence that will be considered on

appeal.

427

Obtain a ruling at, before, or very near the time the trial court rules on

the motion for summary judgment. In Seim v. Allstate Texas Lloyds,

428

the

supreme court quoted with approval a paragraph from a Houston Fourteenth Court

of Appeals case that addressed several aspects of preservation of error of

evidentiary objections in summary judgment proceedings. Among those areas

addressed in the quoted section of Dolcefino, the supreme court emphasized in

italics the following sentence: “In any context, however, it is incumbent upon the

party asserting objections to obtain a written ruling at, before, or very near the

time the trial court rules on the motion for summary judgment or risk waiver.”

429

Thus, the court allows that it may not be possible to get a ruling at or before the

time of the ruling.

The standard of “very near the time the trial court rules” implies that the party

seeking a ruling on evidentiary objections should move quickly to obtain a ruling

if the trial court has not ruled. The court also addresses this issue by directing that

the trial court should rule on the evidentiary objections at or before its summary

judgment ruling. Specifically, earlier in the same paragraph from Dolcefino quoted

by the supreme court, it noted that “the better practice is for the trial court to

disclose, in writing, its rulings on all objections to summary judgment evidence at

or before the time it enters the order granting or denying summary judgment.”

430

Opinions from court of appeals issued before Seim indicate that as long as the

ruling is made before the plenary power of the court expires, there should be no

waiver if the court rules on objections after its summary judgment ruling.

431

In Eaton Metal Products, L.L.C. v. U.S. Denro Steels, Inc., the trial court

made written rulings sustaining certain objections to the summary judgment

evidence, but it did so almost a month after granting the summary judgment.

432

426. Seim, 551 S.W.3d at 165.

427. See Utils. Pipeline Co., 760 S.W.2d at 722–23 (holding that where the appellate record

did not contain a written and filed order sustaining an objection to a report as summary judgment

evidence, the report was proper evidence included in the record).

428. Seim, 551 S.W.3d at 165.

429. Id. at 165 (quoting Dolcefino v. Randolph, 19 S.W.3d 906, 926–27 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied)).

430. Id.

431. Wolfe v. Devon Energy Prod. Co., 382 S.W.3d 434, 448 (Tex. App.—Waco 2012, pet

denied).

432. Eaton Metal Prods., L.L.C. v. U.S. Denro Steels, Inc., No.14-09-00757-CV, 2010 WL

3795192, at *2 (Tex. App.—Houston [14th Dist.] Sept. 30, 2010, no pet.) (mem. op.); see also Esty

v. Beal Bank S.S.B., 298 S.W.3d 280, 291–92 (Tex. App.—Dallas 2009, no pet.).

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Nevertheless, the court of appeals held that the objections were not waived because

the objections had been filed before the summary judgment hearing and the trial

court had noted that it had taken the objections into consideration at the summary

judgment hearing.

433

Thus, in signing the written order on the objections, the trial

court merely was “memorializing what the Court thought” during the earlier

hearing.

434

In Rankin v. Union Pacific Railroad Co., the San Antonio Court of

Appeals refused to give effect to a ruling on a motion to strike summary judgment

evidence that appeared in an order signed after the trial court had granted the

summary judgment.

435

Significantly, the order was signed after the trial court’s

plenary power had expired.

436

If the trial court refuses to rule on an objection, file a written

objection to its failure to rule. Under the rules of appellate procedure, to

preserve a complaint for appellate review that summary judgment evidence is

inadmissible, (1) a party must complain to the trial court in a timely request,

objection, or motion; and (2) the trial court must rule or refuse to rule and “the

complaining party object[] to the refusal.”

437

Therefore, if a party properly objects

to the summary judgment evidence and the trial court fails to or refuses to rule in

writing, that party should object in writing to the trial court’s refusal. Simply re-

urging the original evidentiary objection is not sufficient.

438

In Alejandro v. Bell, the Corpus Christi Court of Appeals considered a

situation where the trial court refused to rule on the nonmovant’s objections

to the movant’s summary judgment evidence.

439

The nonmovant for

summary judgment complained in his motion for new trial of the trial court’s

refusal to rule, and, in doing so, the court held that he preserved his complaint

for review.

440

In light of the 2018 supreme court decision in Seim v. Allstate Texas

Lloyds, which endorses the timing standard of obtaining a ruling “very near

the time the trial court rules on the motion for summary judgment,”

441

careful

practice would be to object earlier than the time for filing the motion for new

trial.

433. Eaton Metal Prods., 2010 WL 3795192, at *5; see also Esty, 298 S.W.3d at 295

(overruling the appellant’s complaint about the timeliness of post-judgment orders because neither

party requested a ruling on the evidentiary objections at issue until after the entry of final judgment,

nor did either party object to the trial court’s failure to rule).

434. Eaton Metal Prods., 2010 WL 3795192, at *4.

435. Rankin v. Union Pac. R.R., 319 S.W.3d 58, 65 (Tex. App.—San Antonio 2010, no pet.).

436. Id.

437. TEX. R. APP. P. 33.1(a).

438. Ermisch v. HSBC Bank USA, No. 03-16-00080-CV, 2016 WL 6575232, at *2 n.3 (Tex.

App.—Austin Nov. 4, 2016, pet. denied) (mem. op.).

439. Alejandro v. Bell, 84 S.W.3d 383, 388 (Tex. App.—Corpus Christi 2002, no pet.).

440. Id.

441. Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 165 (Tex. 2018) (per curiam).

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Indeed, based on this timing standard, the Houston First Court of

Appeals held that a party waived his complaint about the trial court’s failure

to rule on his objections to summary judgment evidence by not objecting to

the failure soon enough.

442

In that case, Vecchio v. Jones, the party initially

objected to the trial court’s failure to rule on the evidentiary objections almost

one year after the court’s initial ruling on the partial summary judgment and

six months after its amended ruling—but before final judgment issued.

443

Even though he raised the failure-to-rule issue before final judgment and then

again in a motion for new trial, the Houston First Court of Appeals held he

waived the issue by not timely raising it, relying on the “very near” timing

standard from Dolcefino that Seim endorses.

444

Accordingly, the First Court

considered the objected-to evidence when determining the merits of the

motion for summary judgment.

445

Object to rulings that sustain objections to admission of evidence.

Courts of appeals ruling on the issue disagree whether a party must object to

a trial court’s ruling that sustains objections to the admission of summary

judgment evidence. The Dallas and El Paso courts of appeals require such an

objection to preserve error.

446

The Fort Worth Court of Appeals would have

no such requirement.

447

The better reasoned approach should be that there is

no requirement. Summary judgment practice tends to mirror trial court

procedure and a lawyer need not object to a ruling sustaining an objection at

trial to preserve error.

5. Attach Evidence to Motion for/Response to Summary Judgment

Texas Rule of Civil Procedure 166a does not require that evidence be

attached to the motion for summary judgment to be considered.

448

The

evidence must only be on file at the time of the summary judgment hearing

or filed thereafter and before judgment with permission of the court.

449

442. Vecchio v. Jones, No. 01-12-00442-CV, 2013 WL 3467195, at *13 (Tex. App.—Houston

[1st Dist.] July 9, 2013, no pet.).

443. Id.

444. Id. (quoting Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—Houston [14th

Dist.] 2000, pet. denied).

445. See id. at *11–12.

446. DuBois v. Martin Luther King, Jr., Family Clinic, No. 05-16-01460-CV, 2018 WL

1663787, at *4 (Tex. App.—Dallas Apr. 6, 2018, no pet.) (mem. op.); Brooks v. Sherry Lane Nat’l

Bank, 788 S.W.2d 874 (Tex. App.—Dallas 1990, no writ); Cmty. Initiatives. Inc. v. Chase Bank of

Tex., 153 S.W.3d 270 (Tex. App.—El Paso 2004, no pet.).

447. Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *8

(Tex. App.—Fort Worth, Mar. 16, 2017, no pet.).

448. TEX. R. CIV. P. 166a(c).

449. Id.

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If a document is in the court’s file at the time of submission of the

motion for summary judgment, the trial court may consider it even if it is not

re-filed as an attachment to the summary judgment motion. In Lance v.

Robinson,

450

the supreme court distinguished between the absence of

evidence from the summary judgment record and its complete absence from

the court’s file. If the evidence is completely absent from the court’s file, and

is necessary to support a summary judgment, this absence constitutes a

substantive error that may be raised for the first time on appeal.

451

In Lance,

the court held that, even though they were not attached to the summary

judgment motion, deeds were properly before the trial court because they had

been admitted without objection in an earlier temporary injunction hearing.

Quoting Texas Rule of Civil Procedure 166a(c), the court noted that if the

evidence “is on file at the time of the [summary judgment] hearing or filed

thereafter and before the judgment with permission of the court,” it may be

considered by the court in determining its decision on the motion for

summary judgment. Even though it may not cause error, attaching evidence

to the motion or response, rather than requiring a court to sift through its files,

is good advocacy.

Although the movant has the burden to prove its summary judgment as

a matter of law, on appeal the burden shifts to the nonmovant appellant to

bring forward the record of the summary judgment evidence to provide

appellate courts with a basis to review its claim of harmful error.

452

“If the

pertinent summary judgment evidence considered by the trial court is not

included in the appellate record, an appellate court must presume that the

omitted evidence supports the trial court’s judgment.”

453

B. Pleadings as Evidence

Generally, factual statements in pleadings, even if verified, do not constitute

summary judgment evidence.

454

However, this rule is not as absolute as it appears.

A plaintiff may not use its pleadings as “proof” to defeat an otherwise valid motion

450. Lance v. Robinson, 543 S.W.3d 723 (Tex. 2018).

451. Id. (citing MBank Brenham, N.A. v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986) (per

curiam)).

452. Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam);

see also DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990); Escontrias v. Apodaca,

629 S.W.2d 697, 699 (Tex. 1982); cf. TEX. R. APP. P. 34.5(a) (stating that only the items listed in

Rule 34.5(a) are included in the appellate record absent a request from one of the parties).

453. Enter. Leasing Co. of Houston, 156 S.W.3d at 550; see also Crown Life Ins. Co. v. Estate

of Gonzalez, 820 S.W.2d 121, 122 (Tex. 1991) (per curiam); DeSantis, 793 S.W.2d at 689.

454. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Hidalgo

v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971); Cross v. Littlefield, No. 11-14-00224-

CV, 2016 WL 6998981, at *2 (Tex. App.—Eastland 2016, no pet.) (mem. op.) (citing Hittner &

Liberato, supra note 328, at 821 n.341).

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for summary judgment by a defendant. However, the defendant may use the

plaintiff’s pleadings to obtain a summary judgment when the pleadings

affirmatively negate the plaintiff’s claim.

455

Sworn account cases are also an

exception to the rule that pleadings are not summary judgment evidence.

456

When

the defendant files no proper verified denial of a suit on a sworn account, the

pleadings can be the basis for summary judgment.

457

Also, an opponent’s pleadings may constitute summary judgment proof if

they contain judicial admissions, which are statements admitting facts or

conclusions contrary to a claim or defense.

458

If not pled in the alternative,

assertions of fact in live pleadings of a party constitute formal judicial

admissions.

459

Conversely, in Martinez v. Midland Credit Management, Inc.,

the appellate court refused to consider as summary judgment evidence

statements contained in the defendant’s original answer, which was timely

amended to include a general denial.

460

The court determined that the

statements in the superseded pleadings were not “conclusive and indisputable

judicial admissions.”

461

In Hidalgo v. Surety Savings & Loan Ass’n, the supreme court explained that

a summary judgment may be granted on deficiencies in the opposing pleadings.

462

The court stated:

We are not to be understood as holding that summary judgment may

not be rendered, when authorized, on the pleadings, as, for example,

when suit is on a sworn account under Rule 185, Texas Rules of Civil

455. Washington v. City of Houston, 874 S.W.2d 791, 794 (Tex. App.—Texarkana 1994, no

writ) (stating that where a party’s pleadings themselves show no cause of action or allege facts that,

if proved, establish governmental immunity, the pleadings alone will justify summary judgment);

Saenz v. Family Sec. Ins. Co. of Am., 786 S.W.2d 110, 111 (Tex. App.—San Antonio 1990, no

writ) (concluding that where a plaintiff pleads facts affirmatively negating his cause of action, he

can “plead himself out of court”); Perser v. City of Arlington, 738 S.W.2d 783, 784 (Tex. App.—

Fort Worth 1987, writ denied) (determining that the appellants effectively pleaded themselves out

of court by affirmatively negating their cause of action).

456. See, e.g., Matador Prod. Co. v. Weatherford Artificial Lift Sys., Inc., 450 S.W.3d 580,

585 n.1 (Tex. App.—Texarkana 2014, pet. denied); Andrews v. E. Tex. Med. Ctr.-Athens, 885

S.W.2d 264, 267 (Tex. App.—Tyler 1994, no writ); see also infra Part 1.VII.A (discussing sworn

accounts).

457. Andrews, 885 S.W.2d at 267; Enernational Corp. v. Exploitation Eng’rs, Inc., 705 S.W.2d

749, 750 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.); Waggoners’ Home Lumber Co.

v. Bendix Forest Prods. Corp., 639 S.W.2d 327, 328 (Tex. App.—Texarkana 1982, no writ).

458. H2O Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 617 (Tex. App.—Houston [1st

Dist.] 2014, pet. denied); Lyons v. Lindsey Morden Claims Mgmt., Inc., 985 S.W.2d 86, 92 (Tex.

App.—El Paso 1998, no pet.); Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 504 (Tex.

App.—Houston [1st Dist.] 1995, no writ).

459. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001).

460. Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485–86 (Tex. App.—El Paso

2008, no pet.).

461. Id. (citing Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995)).

462. Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 543 n.1 (Tex. 1971).

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Procedure, and the account is not denied under oath as therein

provided, or when the plaintiff’s petition fails to state a legal claim or

cause of action. In such cases summary judgment does not rest on proof

supplied by pleading, sworn or unsworn, but on deficiencies in the

opposing pleading.

463

The bottom line is that a party may not rely on factual allegations in its

motion or response as summary judgment evidence. Those allegations must

be supported by separate summary judgment proof. In some limited

instances, a party may rely on its opponent’s pleadings.

C. Depositions

If deposition testimony meets the standards for summary judgment

evidence, it will support a valid summary judgment.

464

Deposition testimony

is subject to the same objections that might have been made to questions and

answers if the witness had testified at trial.

465

Depositions only have “the

force of an out of court admission and may be contradicted or explained in a

summary judgment proceeding.”

466

Deposition testimony may be given the

same weight as any other summary judgment evidence.

Deposition excerpts submitted as summary judgment evidence need not

be authenticated.

467

Copies of the deposition pages alone are sufficient.

468

D. Answers to Interrogatories and Requests for Admissions

1. Evidentiary Considerations

To be considered summary judgment evidence, answers to

interrogatories and requests for admissions must be otherwise admissible into

463. Id.

464. Rallings v. Evans, 930 S.W.2d 259, 262 (Tex. App.—Houston [14th Dist.] 1996, no writ);

Wiley v. City of Lubbock, 626 S.W.2d 916, 918 (Tex. App.—Amarillo 1981, no writ) (stating that

because the deposition testimony was “clear, positive, direct, [and] otherwise free from

contradictions and inconsistencies,” it met the standards for summary judgment evidence).

465. See TEX. R. CIV. P. 199.5(e) (stating that certain objections may be made to questions and

answers in a deposition).

466. Molnar v. Engels, Inc., 705 S.W.2d 224, 226 (Tex. App.—San Antonio 1985, writ ref’d

n.r.e.); Combs v. Morrill, 470 S.W.2d 222, 224 (Tex. Civ. App.—San Antonio 1971, writ ref’d

n.r.e.).

467. McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. 1994) (per curiam); Cobb v. Dall.

Fort Worth Med. Ctr.—Grand Prairie, 48 S.W.3d 820, 823 (Tex. App.—Waco 2001, no pet.).

468. McConathy, 869 S.W.2d at 341–42 (holding that deposition excerpts submitted for

summary judgment can be easily verified so that authentication is unnecessary). Any authentication

requirement such as that articulated in Deerfield Land Joint Venture v. Southern Union Realty Co.,

758 S.W.2d 608, 610 (Tex. App.—Dallas 1988, writ denied), which required that the entire

deposition be attached to the motion along with the original court reporter’s certificate to

authenticate, has been specifically overruled. McConathy, 869 S.W.2d at 342.

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evidence.

469

Interrogatories should be inspected for conclusions, hearsay, and

opinion testimony, which must be brought to the attention of the trial court

in a responsive pleading. Answers to requests for admissions and

interrogatories may be used only against the responding party.

470

Consistent

within the general rule that summary judgment evidence must meet general

admissibility standards, a party may not use its own answers to

interrogatories

471

or its denials to requests for admissions as summary

judgment evidence.

472

2. Deemed Admissions

Deemed admissions can be competent summary judgment

evidence.

473

An unanswered request for admission is automatically

deemed admitted without the necessity of a court order,

474

and any matter

admitted is conclusively established against the party making the

admission unless the court, on motion, allows the withdrawal of the

admission.

475

Thus, when a party fails to answer requests for admissions,

that party will be precluded from offering summary judgment proof

contrary to those admissions.

476

Nevertheless, because of due process

concerns associated with the disposition of cases on grounds other than

the merits, the supreme court requires a showing of “flagrant bad faith or

callous disregard for the rules” to substantiate a summary judgment based

solely on deemed admissions.

477

“Using deemed admissions as the basis

for summary judgment therefore does not avoid the requirement of

flagrant bad faith or callous disregard, the showing necessary to support

469. See Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 175 (Tex. App.—Fort Worth 1996, no

writ).

470. TEX. R. CIV. P. 197.3; Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998) (per curiam);

see Thalman v. Martin, 635 S.W.2d 411, 414 (Tex. 1982).

471. TEX. R. CIV. P. 197.3; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam);

Barragan v. Mosler, 872 S.W.2d 20, 22 (Tex. App.—Corpus Christi 1994, no writ).

472. Barragan, 872 S.W.2d at 22; CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc.,

809 S.W.2d 577, 584 (Tex. App.—Dallas 1991, writ denied); see TEX. R. CIV. P. 198.3.

473. Gellatly v. Unifund CCR Partners, No. 01-07-00552-CV, 2008 WL 2611894, at *4 (Tex.

App.—Houston [1st Dist.] July 3, 2008, no pet.) (mem. op.).

474. TEX. R. CIV. P. 198.2(c).

475. TEX. R. CIV. P. 198.3; Hartman v. Trio Transp., Inc., 937 S.W.2d 575, 580 (Tex. App.—

Texarkana 1996, writ denied); Wenco of El Paso/Las Cruces, Inc. v. Nazario, 783 S.W.2d 663, 665

(Tex. App.—El Paso 1989, no writ) (citing to former TEX. R. CIV. P. 169 (1941, repealed 1999)).

476. State v. Carrillo, 885 S.W.2d 212, 214 (Tex. App.—San Antonio 1994, no writ) (stating

that deemed admissions may not be contradicted by any evidence, including summary judgment

affidavits); see Velchoff v. Campbell, 710 S.W.2d 613, 614 (Tex. App.—Dallas 1986, no writ).

477. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam) (noting that “absent

flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions”);

see also Marino v. King, 355 S.W.3d 629, 632–33 (Tex. 2011) (per curiam); Medina v. Raven, 492

S.W.3d 53, 60 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

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a merits-preclusive sanction; it merely incorporates the requirement as an

element of the movant’s summary judgment burden.”

478

Once admissions are made or deemed by the court, they “may not be

contradicted by any evidence, whether in the form of live testimony or

summary judgment affidavits.”

479

However, to be considered as proper

summary judgment evidence, the requests must be on file with the court at

the time of submission of the motion for summary judgment.

480

Furthermore,

deemed admissions as summary judgment evidence must meet the same time

constraints as the motion for summary judgment and the response.

481

“[A] response to a request for admission can only be used against ‘the party

making the admission.’”

482

Any matter established under Rule 198 (Requests for

Admission) (formerly Rule 169) is conclusively established for the party making

the admission unless it is withdrawn by motion or amended with permission of

the court.

483

“Standards for withdrawing deemed admissions and for allowing a

late summary-judgment response are the same. Either is proper upon a showing

of (1) good cause, and (2) no undue prejudice.”

484

When the need to do so is not

discovered before judgment, a request in a motion for new trial may be sufficient

to withdraw a deemed admission.

485

E. Documents

Documents are another type of potential summary judgment evidence

that is not filed with the clerk of the court during the course of the pretrial

proceedings.

486

478. Marino, 355 S.W.3d at 634.

479. Smith v. Home Indem. Co., 683 S.W.2d 559, 562 (Tex. App.—Fort Worth 1985, no writ);

see also Henke Grain Co. v. Keenan, 658 S.W.2d 343, 347 (Tex. App.—Corpus Christi 1983, no

writ).

480. Vaughn v. Grand Prairie Indep. Sch. Dist., 784 S.W.2d 474, 478 (Tex. App.—Dallas

1989), rev’d on other grounds, 792 S.W.2d 944 (Tex. 1990) (per curiam); see also Longoria v.

United Blood Servs., 907 S.W.2d 605, 609 (Tex. App.—Corpus Christi 1995), rev’d on other

grounds, 938 S.W.2d 29 (Tex. 1997) (per curiam).

481. TEX. R. CIV. P. 166a(d) (specifying the time requirements for filing and serving discovery

products as summary judgment proof).

482. U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 603, 608 (Tex. 2008) (quoting TEX. R.

CIV. P. 198.3).

483. State v. Carrillo, 885 S.W.2d 212, 214 (Tex. App.—San Antonio 1994, no writ); Velchoff

v. Campbell, 710 S.W.2d 613, 614 (Tex. App.—Dallas 1986, no writ) (explaining that the party

never moved to properly reply); Home Indem. Co., 683 S.W.2d at 562 (referring to former TEX. R.

CIV. P. 169 (1941, repealed 1999)).

484. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (citation omitted).

485. Id.

486. TEX. R. CIV. P. 166a(d) (describing the use of summary judgment evidence not on file).

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1. Attaching Documents to Summary Judgment Motion and Response

A motion for summary judgment must be supported by its proof and not

by reference to the pleadings.

487

As such, supporting documents should be

attached either to the affidavit that refers to the document

488

or to the motion

for summary judgment itself.

489

A nonmovant may use as summary judgment

evidence a movant’s own exhibit to establish the existence of a fact

question.

490

The importance of attaching all documentation to the motions for

summary judgment and to the responses is illustrated in many cases. For

example, in MBank Brenham, N.A. v. Barrera, the supreme court held that

there was no evidence to conflict with the movant’s summary judgment proof

because, in its answer, the nonmovant failed to attach the opponent’s

abandoned pleadings, which presumably raised fact issues.

491

The court held

that copies of the abandoned pleadings, with supporting affidavits or other

authentication as required by Rule 166a, should have been attached to the

response.

492

However, even though a document is not attached to the summary

judgment motion, it will be considered summary judgment evidence if it is

contained in the court’s file at the time of submission of the motion for

summary judgment. In Lance v. Robinson, the supreme court held that, even

though they were not attached to the summary judgment motion, deeds were

487. Cuddihy Corp. v. Plummer, 876 S.W.2d 424, 426 (Tex. App.—Corpus Christi 1994, writ

denied).

488. Purported affidavits offered to verify copies of documents that do not contain a jurat must

be objected to at the trial court. See Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d

314, 315 (Tex. 2012) (per curiam); see also infra Part 1.II.F.3 (discussing the effect of improper

affidavits).

489. MBank Brenham, N.A. v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986) (per curiam);

Sorrells v. Giberson, 780 S.W.2d 936, 937–38 (Tex. App.—Austin 1989, writ denied) (reversing

judgment for holder of a promissory note when the note was not attached to his affidavit and, thus,

not part of the summary judgment record); Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887,

888 (Tex. App.—Houston [1st Dist.] 1987, no writ) (“Verified copies of documents, in order to

constitute . . . summary judgment evidence, must be attached to the affidavit.”). But see Zarges v.

Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (per curiam) (stating that absent controverting summary

judgment proof, an affidavit attached to a motion for summary judgment that incorporated by

reference a certified copy of a note attached to plaintiff’s first amended petition was sufficient to

prove the movants were owners and holders of the note).

490. Perry v. Houston Indep. Sch. Dist., 902 S.W.2d 544, 547–48 (Tex. App.—Houston [1st

Dist.] 1995, writ dism’d w.o.j.); Keever v. Hall & Northway Advert., Inc., 727 S.W.2d 704, 706

(Tex. App.—Dallas 1987, no writ) (explaining that “[a] movant’s exhibit can support a motion for

summary judgment or it may create a fact question” if it indicates a contradiction in the movant’s

argument).

491. MBank Brenham, N.A., 721 S.W.2d at 842.

492. See id.

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proper summary judgment evidence because they had been admitted without

objection in an earlier temporary injunction hearing.

493

Although generally not recommended as good advocacy, the rules also

allow parties to rely on discovery products “not on file with the clerk” if they

timely file “a notice containing specific references to the discovery . . .

together with a statement of intent to use the specified discovery as summary

judgment proof[].”

494

In Zarges v. Bevan, the supreme court stated that, absent controverting

summary judgment proof, an affidavit attached to a motion for summary

judgment that incorporated by reference a certified copy of a note attached to

the plaintiff’s first amended petition was enough to prove the movants were

owners and holders of the note.

495

Zarges illustrates again the importance of

specifically calling to the court’s attention, by appropriate response, defects

in the movant’s motion.

496

2. Evidentiary Considerations

Documentation relied on to support a summary judgment must be

sound in terms of its own evidentiary value. In Dominguez v. Moreno, a

trespass to try title case, the plaintiff attached to the summary judgment

motion a partial deed from the common source to his father.

497

The “deed”

contained no signature, no date, and supplied nothing more than a granting

clause and a description of the land.

498

The court held, in essence, that the

writing was not a deed and was not a type of evidence that would be

admissible at a trial on the merits.

499

When using an affidavit to authenticate business records, the party

offering the records must comply with Texas Rules of Evidence 803(6) and

902(10).

500

Unlike summary judgment affidavits offered to prove up

493. Lance v. Robinson, 543 S.W.3d 723, 732–33 (Tex. 2018).

494. TEX. R. CIV. P. 166a(d).

495. Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (per curiam).

496. Id. (finding that the nonmovant failed to controvert the movants’ assertions and to object

to the sufficiency of their affidavits); Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 380

(Tex. 1978) (indicating that a properly identified photocopy of a note attached to an affidavit was

proper summary judgment evidence and that the defendants waived their right to complain about

the form of proof because they failed to object).

497. Dominguez v. Moreno, 618 S.W.2d 125, 126 (Tex. Civ. App.—El Paso 1981, no writ).

498. Id.

499. Id.

500. Norcross v. Conoco, Inc., 720 S.W.2d 627, 632 (Tex. App.—San Antonio 1986, no writ)

(holding that invoices attached to the affidavit in support of the motion for summary judgment were

not competent proof because they were not authenticated as required by Texas Rules of Evidence

803(6), 902(10)). Texas Rule of Evidence 803(6) provides an exception to the hearsay rule for

“Records of Regularly Conducted Activity.” TEX. R. EVID. 803(6). Texas Rule of Evidence 902(10)

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elements of a cause of action or defense, a business-records affidavit is

sufficient if it substantially complies with these rules.

501

The proponent of

evidence is not required to bring forth extrinsic evidence of authenticity as a

condition precedent to admissibility for business records that are

accompanied by an affidavit that complies with Rule 902(10).

502

3. Authentication of Documents

The requirement of authentication as a condition precedent to

admissibility of evidence may be satisfied by “evidence sufficient to support

a finding that the item is what the proponent claims it is.”

503

Evidence is

authenticated by proof that the challenged evidence is what its proponent

claims it to be.

504

Not all evidence need be authenticated. Texas Rule of Civil

Procedure 193.7 represents a significant departure from the former

requirements to authenticate documents. Under Rule 193.7, documents

produced by the opposing party need not be authenticated.

a. Authentication of Producing Party’s Documents

Texas Rule of Civil Procedure 193.7 provides that documents produced

by the opposing party in response to written discovery are self-

authenticating.

505

Specifically, it provides:

Production of Documents Self-Authenticating.

A party’s production of a document in response to written discovery

authenticates the document for use against that party in any pretrial

proceeding or at trial unlesswithin ten days or a longer or shorter

time ordered by the court, after the producing party has actual notice

that the document will be usedthe party objects to the authenticity

of the document, or any part of it, stating the specific basis for

objection. An objection must be either on the record or in writing and

must have a good faith factual and legal basis. An objection made to

the authenticity of only part of a document does not affect the

authenticity of the remainder. If objection is made, the party attempting

allows for self-authentication of “Business Records Accompanied by Affidavit.” TEX. R. EVID.

902(10).

501. Ermisch v. HSBC Bank USA, No. 03-16-00080-CV, 2016 WL 6575232, at *3 (Tex.

App.—Austin Nov. 4, 2016, pet. denied) (mem. op.); H2O Sols., Ltd. v. PM Realty Group, LP, 438

S.W.3d 606, 622 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

502. H2O Sols., Ltd., 438 S.W.3d at 622.

503. TEX. R. EVID. 901(a).

504. H2O Sols., Ltd., 438 S.W.3d at 622.

505. TEX. R. CIV. P. 193.7.

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to use the document should be given a reasonable opportunity to

establish its authenticity.

506

Thus, a document produced in response to written discovery

authenticates that document for use against the producing party.

507

Conversely, a party cannot authenticate a document for its own use by merely

producing it in response to a discovery request.

508

b. Copies

Rule 196.3(b) also allows the producing party to offer a copy of the

document unless the authenticity of the document is under scrutiny or

because fairness under the circumstances of the case requires production of

the original.

509

It provides:

(b) Copies. The responding party may produce copies in lieu of

originals unless a question is raised as to the authenticity of the original

or in the circumstances it would be unfair to produce copies in lieu of

originals. If originals are produced, the responding party is entitled to

retain the originals while the requesting party inspects and copies

them.

510

For copies not produced by the opposing party, copies of original

documents are acceptable if accompanied by a properly sworn affidavit that

states that the attached documents are “true and correct copies of the

originals.”

511

A copy of a letter, which is unauthenticated, unsworn, and

unsupported by affidavit, is not proper summary judgment evidence.

512

In Norcross v. Conoco, Inc., the court reversed a summary judgment on

a sworn account because the affiants merely stated that the attached copies

of invoices and accounts were correct copies of the original documents.

513

reference was made concerning the affiant’s personal knowledge of the

information contained in the attached invoice records.

514

The affiants did

not state that the invoices or accounts were just and true, or correct and

506. Id.

507. Id.

508. Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 452 (Tex. App.—Dallas 2002,

no pet.).

509. TEX. R. CIV. P. 196.3(b).

510. Id.

511. Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per

curiam); Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App.—San Antonio 1995, writ denied).

512. Hall, 911 S.W.2d at 426.

513. Norcross v. Conoco, Inc., 720 S.W.2d 627, 632 (Tex. App.—San Antonio 1986, no writ).

514. Id.

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accurate.

515

Thus, the court concluded that the copies of the invoices were

not competent summary judgment proof.

516

c. Effect on Summary Judgment Practice

Self-authentication eliminates the initial burden of authenticating the

opposing party’s documents used as evidence in support of a motion for

summary judgment or response. Such documents are presumed authentic,

unless timely argued otherwise by the producing party.

517

The producing

party, however, must still authenticate the document if he or she wants to use

it.

518

Because the objection to authenticity must be made within ten days

after “actual notice that the document will be used,”

519

and the response to

the motion for summary judgment is due seven days before the summary

judgment submission,

520

the objection to authenticity may need to be made

before filing the response to the motion for summary judgment. The safer

course is to object to lack of authentication within ten days after the

motion for summary judgment is filed and not wait until filing the response.

The same problem exists for attempts to regain access to documents a party

claims were inadvertently disclosed.

521

As is true at trial, authentication does not establish admissibility.

522

Authentication is but one condition precedent to admissibility.

523

4. Judicial Notice of Court Records

A trial court may take judicial notice of its own records in a case

involving the same subject matter between the same or nearly identical

parties.

524

However, on motion for summary judgment, certified copies of

court records from a different case, even if pending in the same court, should

515. Id.

516. Id.

517. TEX. R. CIV. P. 193.7.

518. Id.

519. Id.

520. TEX. R. CIV. P. 166a(c).

521. See TEX. R. CIV. P. 193.3(d) (“A party who produces material or information without

intending to waive a claim of privilege does not waive that claim . . . if—within ten days . . . the

producing party amends the response . . . .”).

522. See TEX. R. EVID. 901(a).

523. Id.

524. Ball v. Smith, 150 S.W.3d 889, 895 (Tex. App.—Dallas 2004, no pet.); Gardner v. Martin,

345 S.W.2d 274, 276 (Tex. 1961); cf. Trevino v. Pemberton, 918 S.W.2d 102, 103 n.2 (Tex. App.—

Amarillo 1996, no writ) (recognizing the same authority for appellate courts).

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be attached to the motion in the second case.

525

The failure of the movant to

attach the records precludes summary judgment.

526

F. Affidavits and Declarations

Affidavits, which are sworn statements of facts signed by competent

witnesses,

527

are the most common form of summary judgment evidence.

When an affidavit meets the Government Code’s requirements, it may be

used as summary judgment evidence if it complies with Texas Rule of

Civil Procedure 166a(f).

528

Declarations are essentially unsworn affidavits, although they must

meet specific requirements. They may be used in the place of an affidavit

required by a rule.

529

Thus, if they meet the requirements under the

Remedies Code, declarations can be substituted for affidavits as summary

judgment evidence. Rule 166a provides that a party may move for

summary judgment with or without supporting affidavits.

530

However,

before the adoption of the no-evidence summary judgment provision, it

was unusual for a summary judgment to be granted without supporting

affidavits. No-evidence summary judgment motions do not require

supporting evidence.

531

In other types of summary judgments, more often

than not, affidavits are the vehicle used to show the court that there are no

factual questions. Conversely, they are commonly used by the nonmovant

to demonstrate a fact issue in response to either no-evidence motions or

traditional summary judgment motions. They may also be used to

contradict or explain previous testimony.

532

525. See Gardner, 345 S.W.2d at 276–77 (indicating that because the records referred to in the

affidavit supporting the motion for summary judgment were court records of another case, it was

reversible error not to attach certified copies of the records to the motion).

526. Id. at 277; Chandler v. Carnes Co., 604 S.W.2d 485, 487 (Tex. Civ. App.—El Paso 1980,

writ ref’d n.r.e.).

527. The Government Code defines “affidavit” as “a statement in writing of a fact or facts

signed by the party making it, sworn to before an officer authorized to administer oaths, and

officially certified to by the officer under his seal of office.” TEX. GOV’T CODE ANN. § 312.011(1)

(West 2017). That definition contains the “statutory requirements” for an affidavit. Ford Motor Co.

v. Leggat, 904 S.W.2d 643, 645–46 (Tex. 1995).

528. See TEX. R. CIV. P. 166a(f); Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 380

(Tex. 1978) (stating that Rule 166a(e) “sets forth the procedure for presenting summary judgment

evidence by affidavit”).

529. TEX. CIV. PRAC. & REM. CODE § 132.001(a) (West 2017).

530. TEX. R. CIV. P. 166a(a)(b); see Kilpatrick v. State Bd. of Registration for Prof’l Eng’rs,

610 S.W.2d 867, 871–72 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.) (“There is no

requirement under [Texas Rule of Civil Procedure 166a] making affidavits indispensable to

rendition of summary judgment.”); supra Part 1.II.C (discussing effect of an affidavit that

contradicts earlier deposition testimony).

531. TEX. R. CIV. P. 166a(i).

532. See supra Part 1.II.C.

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1. Form of Affidavits and Declarations

Normally, an affiant includes a jurat to prove that the written statement was

made under oath before an authorized officer.

533

In contrast, a declaration is unsworn. Nonetheless, the Remedies Code

sets out specific requirements for an unsworn declaration and failure to meet

those requirements would be at an advocate’s peril. The declaration must be

(1) in writing, (2) subscribed by the person making the declaration as true

under penalty of perjury, and (3) include a jurat in a form set out in the

Code.

534

The jurat requires the person’s full name, date of birth, address, the

declaration that it is made under penalty of perjury and is true and correct,

along with a line containing the county, state and date of the declaration’s

execution.

535

2. Procedural Requirements

Affidavits and declarations must be specific. They must contain specific

factual bases that are admissible and upon which conclusions are drawn.

536

The requirements for affidavits under Texas Rule of Civil Procedure 166a(f)

provide that the affidavit must show affirmatively that it is based on personal

knowledge and that the facts sought to be proved would be “admissible in

evidence” at a conventional trial.

537

Statements made in the affidavit need

factual specificity concerning time, place, and the exact nature of the alleged

facts.

538

A verification, attached to the motion or response, that the contents are

within the affiant’s knowledge and are both true and correct does not

constitute a proper affidavit in support of summary judgment under Rule

533. A jurat is a certification by an authorized officer, stating that the writing was sworn to

before the officer. Perkins v. Crittenden, 462 S.W.2d 565, 567–68 (Tex. 1970); see also Jurat,

BLACK’S LAW DICTIONARY 926 (9th ed. 2009) (defining a jurat as a “certification added to an

affidavit . . . stating when and before what authority the affidavit . . . was made,” and noting that a

jurat typically indicates “that the officer administered an oath or affirmation to the signer, who swore

to or affirmed the contents of the document”).

534. CIV. PRAC. & REM. CODE § 132.001(a).

535. Id. § 132.001(d). The Remedies Code section includes the form for a jurat that is to be

included in the declaration.

536. Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 542 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied).

537. TEX. R. CIV. P. 166a(f); see also Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.

1996) (per curiam) (quoting TEX. R. CIV. P. 166a(f)); Humphreys v. Caldwell, 888 S.W.2d 469, 470

(Tex. 1994) (per curiam) (“An affidavit which does not positively . . . represent the facts as

disclosed in the affidavit to be true and within the affiant’s personal knowledge is legally

insufficient.”).

538. All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 530 (Tex. App.—Fort

Worth 2009, pet. denied); Southtex 66 Pipeline Co., 238 S.W.3d at 543.

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166a(f).

539

Although frequently used, “magic words” such as “true and

correct,” or within “personal knowledge” are not required.

540

The key is

whether the affidavit clearly shows the affiant is testifying from personal

knowledge.

541

For an affidavit to have probative value, an affiant must swear

that the facts presented in the affidavit reflect his or her personal

knowledge.

542

The affidavit “must itself set forth facts and show the affiant’s

competency,” and the allegations contained in the affidavit “must be direct,

unequivocal and such that perjury is assignable.”

543

In some instances, a court

may hold that an affidavit simply stating the affiant’s job title is sufficient to

show personal knowledge.

544

This practice, however, is ill-advised. In

addition to a person’s job title or position, affiants should also explain how

they became familiar with the facts in the affidavit.

545

The requirement of Rule 166a(f) that the affidavit affirmatively show

that the affiant is competent to testify to the matters contained in the affidavit

is not satisfied by an averment that the affiant is over eighteen years of age,

of sound mind, capable of making this affidavit, never convicted of a felony,

and personally acquainted with the facts herein stated.

546

Rather, the affiant

should detail those particular facts that demonstrate that he or she has

personal knowledge.

547

The personal knowledge requirement for affidavits is not met by a

statement based upon the affiant’s “own personal knowledge and/or

knowledge which he has been able to acquire upon inquiry.”

548

Such a

statement “provide[s] no representation whatsoever” that the facts contained

539. See Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994) (citing Keenan v.

Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394 (Tex. App.—Houston [14th Dist.] 1988, no writ)

(referring to what was then Rule 166a(e))).

540. Churchill v. Mayo, 224 S.W.3d 340, 346–47 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied).

541. Valenzuela v. State & Cty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (quoting Judge David Hittner & Lynne Liberato, Summary Judgments in

Texas: State and Federal Practice, 46 HOUS. L. REV. 1379, 1438 (2010)).

542. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004) (per curiam).

543. Keenan, 754 S.W.2d at 394.

544. See Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299, 301 (Tex. App.—

Houston [14th Dist.] 1987, writ ref’d n.r.e.).

545. Valenzuela, 317 S.W.3d at 553.

546. See Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 646 (Tex. App.—Dallas 2000, no pet.).

547. See id. (finding an affidavit not conclusory when the affiant discussed the sources of her

personal knowledge); Coleman v. United Sav. Ass’n of Tex., 846 S.W.2d 128, 131 (Tex. App.—

Fort Worth 1993, no writ) (holding that a sufficient affidavit must show affirmatively how the

affiant became personally familiar with the facts); Fair Woman, Inc. v. Transland Mgmt. Corp., 766

S.W.2d 323, 323–24 (Tex. App.—Dallas 1989, no writ) (explaining that summary judgment failed

despite the lack of a response because the affiant did not state how she had personal knowledge).

548. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) (quoting the

nonmovant’s affidavit).

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in the affidavit are true.

549

Scott & White Memorial Hospital v. Fair

demonstrates how courts may view the personal knowledge requirement.

550

In it, the supreme court reversed a case in which the court of appeals had

determined that a hospital grounds supervisor’s affidavit could not support a

summary judgment concerning whether ice accumulations were in their

natural state.

551

The court of appeals rejected the supervisor’s testimony

because she was not at the scene when the plaintiff’s accident occurred nor

called to the scene following the accident.

552

The supreme court disagreed.

553

It determined that that the grounds supervisor had sufficient personal

knowledge because she personally observed the winter storm and the

resulting ice accumulations on the hospital grounds, including the road on

which the plaintiff fell.

554

Phrases such as “I believe” or “to the best of my knowledge and belief”

should never be used in a supporting affidavit. Statements based upon the “best

of his knowledge” have been held insufficient to support a response raising fact

issues.

555

Such statements, according to the Fort Worth Court of Appeals in

Campbell v. Fort Worth Bank & Trust, are “no evidence at all.”

556

The court

explained: “A person could testify with impunity that to the best of his

knowledge, there are twenty-five hours in a day, eight days in a week, and

thirteen months in a year. Such statements do not constitute factual proof in a

summary judgment proceeding.”

557

Conversely, Moya v. O’Brien suggests that the requirement that the

affiant have personal knowledge does not preclude the use of the words “I

believe” in a supporting affidavit, if the content of the entire affidavit shows

that the affiant has personal knowledge.

558

The court noted, however, that

549. Id. at 470–71 (holding affidavits used in a privilege dispute were defective because they

failed to show they were based on personal knowledge and did not represent that the disclosed facts

were true).

550. Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 415 (Tex. 2010).

551. Id. at 419.

552. Id. at 415.

553. Id.

554. Id.

555. Roberts v. Davis, 160 S.W.3d 256, 263 n.1 (Tex. App.—Texarkana 2005, pet. denied)

(holding the affidavit in a defamation case that was based on information “to the best of my

knowledge and belief” insufficient to support summary judgment on the basis of the truth of the

statement, but holding it may be evidence that the statement was made without malice); Shindler v.

Mid-Continent Life Ins. Co., 768 S.W.2d 331, 334 (Tex. App.—Houston [14th Dist.] 1989, no writ);

see Webster v. Allstate Ins. Co., 833 S.W.2d 747, 749 (Tex. App.—Houston [1st Dist.] 1992, no

writ) (holding that the sworn statement made by the plaintiff’s attorney that all information was true

and correct was insufficient as a summary judgment affidavit).

556. Campbell v. Fort Worth Bank & Trust, 705 S.W.2d 400, 402 (Tex. App.—Fort Worth

1986, no writ).

557. Id.

558. Moya v. O’Brien, 618 S.W.2d 890, 893 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ

ref’d n.r.e.) (noting a close reading of the affidavits left no doubt that the affiants were speaking

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“when the portions of the affidavits containing hearsay are not considered,

the remaining statements in the affidavits contain sufficient factual

information to sustain the burden of proving the allegations in the motion for

summary judgment.”

559

In Grand Prairie Independent School District v. Vaughan, the supreme

court considered a witness’s affidavit in which the words “on or about” were

used to refer to a critical date.

560

The court found that “on or about” meant a

date of approximate certainty, with a possible variance of a few days, and

that the nonmovant never raised an issue of the specific dates.

561

An affidavit must be in substantially correct form. An affidavit may not be

used to authenticate a copy of another affidavit.

562

When the record lacks any

indication that a purported affidavit was sworn to by the affiant, the written

statement is not an affidavit under the Government Code.

563

However, this defect

must be raised at the trial court or it is waived.

564

3. Substance of Affidavits

Affidavits must set forth facts that would be admissible in evidence.

565

Affidavits cannot be based on subjective beliefs.

566

Nor can they be

conclusory.

567

Conclusory affidavits are not probative.

568

A conclusory

statement is one that is not susceptible to being readily controverted and does

from personal knowledge); see also Krueger v. Gol, 787 S.W.2d 138, 141 (Tex. App.—Houston

[14th Dist.] 1990, writ denied) (finding a failure to specifically state that an affidavit is based on

personal knowledge is not fatal if it is clearly shown that the affiant was speaking from personal

knowledge).

559. Moya, 618 S.W.2d at 893; accord Taylor v. Discovery Bank, No. 03-17-00677-CV, 2018

WL 4016611, at *1–*2 (Tex. App.—Austin Aug. 23, 2018, no pet. h.) (considering the affidavit as

a whole, the affidavit was sufficient even if the affiant stated that the affidavit was “made on the

basis of my personal knowledge”).

560. Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam)

(quoting the movant’s affidavit).

561. Id.

562. See Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App.—San Antonio 1995, writ

denied).

563. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316–17 (Tex.

2012) (per curiam).

564. Id. at 317.

565. Cuellar v. City of San Antonio, 821 S.W.2d 250, 252 (Tex. App.—San Antonio 1991,

writ denied); see Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex. App.—Corpus Christi

1994, writ dism’d w.o.j.) (holding affidavits unsupported by facts and consisting of legal

conclusions do not establish an issue of fact).

566. Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (per curiam)

(stating that subjective beliefs are nothing more than conclusions).

567. Burrow v. Arce, 997 S.W.2d 229, 235–36 (Tex. 1999); In re Am. Home Prods. Corp., 985

S.W.2d 68, 74 (Tex. 1998); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per

curiam) (“Conclusory affidavits are not enough to raise fact issues.”).

568. Ryland Grp., Inc., 924 S.W.2d at 122.

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not provide the underlying facts to support the conclusion.

569

For example, a

statement that the affiant is the “owner and holder of the title document and

is entitled to possession of this manufactured home” is no more than a legal

conclusion insufficient to support a summary judgment.

570

Conclusory

statements contained in an affidavit that are unsupported by facts are

insufficient to support or defeat summary judgment.

571

Nonetheless, the line

separating admissible statements of fact and inadmissible opinions or

conclusions cannot always be precisely drawn. One of the policy

considerations behind the prohibition against conclusory affidavits is that

they are not susceptible to being readily controvertible.

572

Schultz v. General Motors Acceptance Corp. provides an example of a

conclusory affidavit.

573

In Schultz, the court held that an affidavit supporting

the creditor’s motion for summary judgment merely recited a legal

conclusion in stating that certain collateral was disposed of “at public sale in

conformity with reasonable commercial practices . . . in a commercially

reasonable manner.”

574

Summary judgment was precluded absent facts

concerning the sale of the collateral in question.

575

Texas courts have considered a number of other evidentiary issues for

summary judgment affidavits. First, affidavits may not be based on

hearsay.

576

But “[i]nadmissible hearsay admitted without objection shall not

be denied probative value merely because it is hearsay.”

577

Next, affidavits

that contradict the plain meaning of a contract and thus violate the parol

evidence rule are not competent summary judgment evidence.

578

Third, if the

569. Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex. App.—Dallas 2008, no pet.).

570. Almance v. Shipley Bros., 247 S.W.3d 252, 255 (Tex. App.—El Paso 2007, no pet.)

(quoting the movant’s affidavit).

571. 5500 Griggs v. Famcor Oil, Inc., No. 14-15-00151-CV, 2016 WL 3574649, at *3 (Tex.

App.—Houston [14th Dist.] June 30, 2016, no pet.).

572. Ryland Grp., 924 S.W.2d at 122. “Readily controvertible” does not mean that the affidavit

could have been “easily and conveniently rebutted, but rather indicates that the testimony could

have been effectively countered by opposing evidence.” Trico Techs. Corp. v. Montiel, 949 S.W.2d

308, 310 (Tex. 1997) (per curiam).

573. Schultz v. Gen. Motors Acceptance Corp., 704 S.W.2d 797, 798 (Tex. App.—Dallas

1985, no writ).

574. Id. (quoting the movant’s affidavit).

575. Id.

576. Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.—Houston [1st Dist.] 1992, writ

dism’d w.o.j.); see also Butler v. Hide-A-Way Lake Club, Inc., 730 S.W.2d 405, 411 (Tex. App.—

Eastland 1987, writ ref’d n.r.e.); Lopez v. Hink, 757 S.W.2d 449, 451 (Tex. App.—Houston [14th

Dist.] 1988, no writ).

577. TEX. R. EVID. 802; see Dolenz v. A. B., 742 S.W.2d 82, 83 n.2 (Tex. App.—Dallas 1987,

writ denied) (quoting TEX. R. EVID. 802).

578. D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 228 (Tex.

App.—Fort Worth 2013, no pet.); Fimberg v. FDIC, 880 S.W.2d 83, 86 (Tex. App.—Texarkana

1994, writ denied) (citing Rosemont Enters., Inc. v. Lummis, 596 S.W.2d 916, 923–24 (Tex. Civ.

App.—Houston [14th Dist.] 1980, no writ)).

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prerequisites of Texas Rule of Evidence 803(6), which sets out the

requirements for admitting a business record into evidence, are not met, a

business record may not be proper summary judgment evidence.

579

4. Effect of Improper Affidavits

Affidavits that do not meet the requirements of Rule 166a will neither

sustain nor preclude a summary judgment.

580

When a purported affidavit is

submitted without a jurat and without extrinsic evidence showing that it was

sworn to before an authorized officer, the opposing party must object, thereby

giving the sponsoring party a chance to correct the error.

581

Absent an

objection in the trial court, the party challenging the purported affidavit

waives this complaint.

582

After objections are made to affidavits (and assuming that the new

affidavit would be timely), affidavits may be supplemented.

583

5. Sham Affidavits

A trial court may determine that there is no genuine fact issue created

by submission of sworn testimony that materially conflicts with the same

witness’s earlier sworn testimony, unless the proponent of the affidavit offers

a sufficient explanation for the conflict.

584

So-called “sham affidavits” had presented a conflict in the courts of

appeals but that conflict was resolved by the supreme court in 2018.

585

sham affidavit is one that contradicts an affiant’s prior testimony on a

material issue and is designed to create a fact issue that will preclude a

summary judgment.

586

579. TEX. R. EVID. 803(6); see also Travelers Constr., Inc. v. Warren Bros., 613 S.W.2d 782,

785–86 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ) (holding an affidavit was defective

because it did not satisfy the then-existing requirements for admission of a business record).

580. See Box v. Bates, 346 S.W.2d 317, 319 (Tex. 1961) (rejecting an affidavit as conclusory,

but still considering other evidence); see also Aldridge v. De Los Santos, 878 S.W.2d 288, 296

(Tex. App.—Corpus Christi 1994, writ dism’d w.o.j.) (“Affidavits containing conclusory statements

unsupported by facts are not competent summary judgment proof.”).

581. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 317 (Tex. 2012)

(per curiam).

582. See id.

583. TEX. R. CIV. P. 166a(f); see All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d

518, 531 n.25 (Tex. App.—Fort Worth 2009, pet. denied) (noting that the movant could have but

failed to amend or supplement the affidavit it relied upon during the eight months that elapsed

between the nonmovant’s objection to lack of detail and specificity and the trial court’s sustaining

of the objection).

584. Lujan v. Navistar, Inc., 555 S.W.3d 79, 82 (Tex. 2018).

585. Id. at 87–90.

586. Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.]

1997, no pet.).

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Review of a trial court’s decision to strike an affidavit under the sham

affidavit rule is reviewed under an abuse of discretion standard.

587

Nonetheless, the doctrine does not authorize trial courts to strike every

affidavit that contradicts the affiant’s prior sworn testimony.

588

In Lujan v.

Navistar Co., the supreme court noted, “to allow every failure of memory or

variation in a witness’s testimony to be disregarded as a sham would require

far too much from lay witnesses . . . .”

589

The court noted that most

differences between a witness’s deposition and affidavit reflected “human

inaccuracy more than fraud.”

590

The court offered examples of situations that

may justify contradictions as newly discovered evidence and confusion of the

witness.

591

6. Affidavits by Counsel

It is generally not advisable for attorneys to sign affidavits, since

affidavits must be based on personal knowledge and not on information or

belief.

592

The personal knowledge requirement of Rule 166a(f) has plagued

attorneys signing summary judgment affidavits on behalf of their clients.

Under Texas Rule of Civil Procedure 14, “[w]henever it may be necessary or

proper for any party to a civil suit or proceeding to make an affidavit, it may

be made by either the party or his agent or his attorney.”

593

While this

seemingly approves counsel as an appropriate affiant for all purposes, courts

have held that the rule does not obviate the need for personal knowledge of

the facts in an affidavit.

594

Merely swearing that the affiant is the attorney of

record for a party, and that the facts stated in the motion for summary

judgment are within his or her personal knowledge and are true and correct,

does not meet the personal knowledge test.

595

This type of affidavit is

ineffectual to oppose or support a motion for summary judgment on the

587. Lujan, 555 S.W.3d at 84.

588. Id. at 85.

589. Id. (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)).

590. Id. at 88 (citing Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex. App.—San Antonio 2001, pet.

denied)).

591. Id. at 85.

592. Wells Fargo Constr. Co. v. Bank of Woodlake, 645 S.W.2d 913, 914 (Tex. App.—Tyler

1983, no writ); see infra Part 1.II.F.4.

593. TEX. R. CIV. P. 14.

594. E.g., Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116 (Tex. App.—Corpus Christi 1995,

writ denied) (“A party’s attorney may verify the pleading where he has knowledge of the facts, but

does not have authority to verify based merely on his status as counsel.”); Webster v. Allstate Ins.

Co., 833 S.W.2d 747, 749 (Tex. App.—Houston [1st Dist.] 1992, no writ); Soodeen v. Rychel, 802

S.W.2d 361, 363 (Tex. App.—Houston [1st Dist.] 1990, writ denied).

595. Webster, 833 S.W.2d at 749; Carr v. Hertz Corp., 737 S.W.2d 12, 13–14 (Tex. App.—

Corpus Christi 1987, no writ).

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merits, except concerning attorneys’ fees.

596

Plus, it may open the attorney to

cross-examination. Unless the summary judgment involves attorneys’ fees,

the attorneys’ affidavit should explicitly state that the attorney has personal

knowledge of the facts in the affidavit and should recite facts that substantiate

the lawyer’s alleged personal knowledge.

If counsel is compelled to file an affidavit on the merits of a client’s

cause of action or defense, one court has suggested the proper procedure:

While Rule 14 of the Texas Rules of Civil Procedure permits an

affidavit to be made by a party’s attorney or agent, this rule does not

obviate the necessity of showing that the attorney has personal

knowledge of the facts, as distinguished from information obtained

from the client. Ordinarily, an attorney’s knowledge of the facts of a

case is obtained from the client. Consequently, if the attorney must

act as affiant, the better practice is to state explicitly how the

information stated in the affidavit was obtained.

597

As opposed to the restrictions on an attorney’s ability to act as affiants,

an attorney may authenticate documents.

598

G. Other Evidence

Summary judgment proof is not limited to affidavits and discovery

materials. Parties can, and have, introduced a variety of additional forms of

proof, including stipulations,

599

photographs,

600

testimony from prior trials,

601

transcripts from administrative hearings,

602

court records from other cases,

603

596. Carr, 737 S.W.2d at 13–14; see, e.g., Webster, 833 S.W.2d at 749 (holding a sworn

statement by an attorney did not present proper summary judgment evidence); Soodeen, 802 S.W.2d

at 365 (rejecting attorney’s affidavit because it did not demonstrate attorney’s competence to testify

regarding negligent entrustment); Harkness v. Harkness, 709 S.W.2d 376, 378 (Tex. App.—

Beaumont 1986, writ dism’d w.o.j.) (requiring an attorney who makes an affidavit to show personal

knowledge of the facts); Landscape Design & Constr., Inc. v. Warren, 566 S.W.2d 66, 67 (Tex. Civ.

App.—Dallas 1978, no writ) (disallowing attorney’s affidavit as not stating personal knowledge of

the facts).

597. Landscape Design, 566 S.W.2d at 67.

598. Leyva v. Soltero, 966 S.W.2d 765, 768 (Tex. App.—El Paso 1998, no pet.).

599. Kinner Transp. & Enters., Inc. v. State, 614 S.W.2d 188, 189 (Tex. Civ. App.—Eastland

1981, no writ).

600. Langford v. Blackman, 790 S.W.2d 127, 132–33 (Tex. App.—Beaumont 1990) (per

curiam), rev’d per curiam on other grounds, 795 S.W.2d 742 (Tex. 1990).

601. Murillo v. Valley Coca-Cola Bottling Co., 895 S.W.2d 758, 761–62 (Tex. App.—Corpus

Christi 1995, no writ); Kazmir v. Suburban Homes Realty, 824 S.W.2d 239, 244 (Tex. App.—

Texarkana 1992, writ denied).

602. Vaughn v. Burroughs Corp., 705 S.W.2d 246, 247 (Tex. App.—Houston [14th Dist.]

1986, no writ).

603. Murillo, 895 S.W.2d at 761; Gilbert v. Jennings, 890 S.W.2d 116, 117 (Tex. App.—

Texarkana 1994, writ denied).

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the statement of facts from an earlier trial (now called the reporter’s

record),

604

and judicial notice.

605

H. Expert and Interested Witness Testimony

For many years, Texas courts held that interested or expert witness

testimony would not support a summary judgment motion or response.

606

However, the 1978 amendment to Rule 166a specifically permits the granting

of a motion for summary judgment based on the uncontroverted testimony of

an expert witness if the trier of fact is guided solely by the opinion testimony

of experts as to a subject matter or on the testimony of an interested

witness.

607

The evidence must meet the following criteria: (1) it is clear,

positive, and direct; (2) it is otherwise credible and free from contradictions

and inconsistencies; and (3) it could have been readily controverted.

608

1. Expert Opinion Testimony

a. Requirements for Expert Witness Testimony

609

Experts are considered interested witnesses, and their testimony is subject

to the requirement of being clear, positive, direct, credible, free from

contradictions, and susceptible to being readily controverted.

610

An expert’s

opinion testimony can defeat a claim as a matter of law, even if the expert is an

604. Austin Bldg. Co. v. Nat’l Union Fire Ins. Co., 432 S.W.2d 697, 698–99 (Tex. 1968); Exec.

Condos., Inc. v. State, 764 S.W.2d 899, 901 (Tex. App.—Corpus Christi 1989, writ denied).

605. Settlers Vill. Cmty. Improvement Ass’n v. Settlers Vill. 5.6, Ltd., 828 S.W.2d 182, 184

(Tex. App.—Houston [14th Dist.] 1992, no writ).

606. See, e.g., Lewisville State Bank v. Blanton, 525 S.W.2d 696, 696 (Tex. 1975) (per curiam)

(holding the affidavit of an interested party will not support a summary judgment but may raise a

question of fact); Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828–29 (Tex. 1970) (finding expert

testimony by affidavit does not establish facts as a matter of law).

607. TEX. R. CIV. P. 166a(c); see also Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310

(Tex. 1997) (per curiam) (holding that uncontroverted affidavit of an interested witness may be

competent summary judgment evidence); Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d

606, 607 (Tex. 1986) (per curiam) (holding affidavit of interested witness was admissible as proper

summary judgment evidence because it was readily controvertible); Duncan v. Horning, 587 S.W.2d

471, 472–74 (Tex. Civ. App.—Dallas 1979, no writ) (approving affidavit of interested witness as

competent summary judgment evidence under Texas Rule of Civil Procedure 166a(c), effective on

January 1, 1978).

608. TEX. R. CIV. P. 166a(c); Trico Techs. Corp., 949 S.W.2d at 310.

609. See generally Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen

Years Later, 52 HOUS. L. REV. 1 (2014) (a comprehensive study discussing the law governing expert

witness testimony); David F. Johnson, Appellate Issues Regarding the Admission or Exclusion of

Expert Testimony in Texas, 52 S. TEX. L. REV. 153, 231–32 (2010).

610. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Anderson v. Snider, 808

S.W.2d 54, 55 (Tex. 1991) (per curiam).

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interested witness.

611

Indeed, summary judgment evidence in the form of expert

testimony might be necessary to survive a no-evidence summary judgment.

612

But “it is the basis of the witness’s opinion, and not the witness’s

qualifications or his bare opinions alone, that can settle an issue as a matter of

law; a claim will not stand or fall on the mere ipse dixit of a credentialed

witness.”

613

The requirement applies equally to affidavits in support of a

summary judgment and those attempting to defeat one by creating a fact issue.

614

For example, in Elizondo v. Krist, the supreme court held that an attorney-expert,

however well qualified, could not defeat a summary judgment where there were

“fatal gaps in his analysis that leave the court to take his word that the settlement

was inadequate.”

615

Expert testimony must be comprised of more than

conclusory statements and must be specific.

616

Conclusory affidavits are not

probative.

617

For example, affidavits that recite that the affiant “estimates,”

“believes,” or has an understanding of certain facts are not proper summary

judgment evidence.

618

“Such language does not positively and unqualifiedly

represent that the ‘facts’ disclosed are true.”

619

Likewise, legal conclusions of an expert are not probative to establish

proximate cause.

620

“[B]are opinions alone” will not suffice to defeat a claim as

a matter of law.

621

“It is incumbent on an expert to connect the data relied on and

his or her opinion and to show how that data is valid support for the opinion

reached.”

622

In one case, an affidavit that did not include the legal basis or

reasoning for an attorney’s expert opinion that he did not commit malpractice

was “simply a sworn denial of [plaintiff’s] claims.”

623

Because it was conclusory,

611. Anderson, 808 S.W.2d at 55.

612. See F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221–22 (Tex. App.—Eastland 2005,

no pet.) (affirming no-evidence summary judgment because the nonmovant did not present any

expert evidence on causation).

613. City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Burrow v.

Arce, 997 S.W.2d 229, 235 (Tex. 1999)); accord Coastal Transp. Co. v. Crown Cent. Petroleum

Corp., 136 S.W.3d 227, 232 (Tex. 2004).

614. Wadewitz, 951 S.W.2d at 466–67.

615. Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013).

616. Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); see Wadewitz,

951 S.W.2d at 466–67; Lara v. Tri-Coastal Contractors, Inc., 925 S.W.2d 277, 279 (Tex. App.—

Corpus Christi 1996, no writ). Under Texas Rule of Evidence 401, “Opinion testimony that is

conclusory or speculative is not relevant evidence, because it does not tend to make the existence

of a material fact ‘more probable or less probable.’” Coastal Transp. Co., 136 S.W.3d at 232

(quoting TEX. R. EVID. 401).

617. Ryland, 924 S.W.2d at 122.

618. Id.

619. Id. (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)).

620. Barraza v. Eureka Co., 25 S.W.3d 225, 230 (Tex. App.—El Paso 2000, pet. denied).

621. Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999).

622. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642 (Tex. 2009).

623. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam).

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the court found it to be incompetent summary judgment evidence.

624

Similarly,

a conclusory statement by a Maryland doctor that a Texas doctor was entitled to

be paid (and therefore not covered by the Good Samaritan statute) was not

sufficient to create a fact issue.

625

In another example, the supreme court determined that an expert’s failure

to explain or disprove alternative theories of causation of a fire made his theory

speculative and conclusory.

626

In another case, the supreme court found an

expert’s testimony insufficient to create a fact issue when she opined that the

alleged negligent conduct of a hospital caused the plaintiff’s injuries without an

explanation of how the conduct was the cause in fact of the plaintiff’s injuries.

627

In a recent example of a case in which the supreme court rejected an

argument that an expert’s testimony was conclusory regarding causation, the

court determined that the expert explained the link between the facts that he

relied upon and the opinion he reached.

628

The court reversed a summary

judgment against the plaintiff, finding non-conclusory the affidavit of an expert

in support of a legal malpractice claim against an attorney for negligence in

challenging the seizure and seeking return of an airplane seized by the Drug

Enforcement Agency.

629

In holding the affidavit was not conclusory, the court

explained that that the relevant inquiry regarding the question of whether an

affidavit is an ipse dixit turns on the inferences, if any, required to bridge the gap

between the underlying data and the expert’s rationale and conclusion.

630

A threshold question on admissibility is whether the expert is qualified.

“The test for admissibility of an expert’s testimony is whether the proponent

established that the expert possesses knowledge, skill, experience, training, or

education regarding the specific issue before the court which would qualify the

expert to give an opinion on that particular subject.”

631

Also, an expert’s affidavit

that is based on assumed facts that vary from the actual undisputed facts has no

probative force.

632

624. Id.; see also Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 434–35 (Tex. App.—Houston

[14th Dist.] 1999, no pet.) (finding an expert’s affidavit to be “nothing more than speculation” and

thus insufficient to constitute summary judgment evidence).

625. McIntyre v. Ramirez, 109 S.W.3d 741, 745–46, 749–50 (Tex. 2003).

626. Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839–40 (Tex. 2010) (per curiam).

627. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex.

2004); see also Hamilton v. Wilson, 249 S.W.3d 425, 427 (Tex. 2008) (per curiam) (finding that

the expert’s testimony “was not based on mere possibilities, speculation, or surmise” and thus was

proper summary judgment evidence).

628. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 679–80 (Tex. 2017) (per curiam).

629. Id. at 681–82.

630. Id. at 680.

631. Downing v. Larson, 153 S.W.3d 248, 253 (Tex. App.—Beaumont 2004) (per curiam),

rev’d per curiam on other grounds, 197 S.W.3d 303 (Tex. 2006); see also Roberts v. Williamson,

111 S.W.3d 113, 120–21 (Tex. 2003).

632. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

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Mere conclusions of a lay witness are not competent evidence to controvert

expert opinion evidence.

633

For example, whether a causal connection exists

“between exposure to a certain chemical and [later] injury or disease requires

specialized expert knowledge and testimony because such matters are not within

the common knowledge of lay persons.”

634

However, on subject matter in which

the fact-finder would not be required to be guided solely by the opinion

testimony of experts, lay testimony may be permitted.

635

Under the right circumstances, lay testimony may be accepted over that of

experts.

636

Whether expert testimony is required is a question of law.

637

Thus, in

a situation where lay testimony is permitted, it can be sufficient to raise a fact

issue.

638

For example, in United States Fire Insurance Co. v. Lynd Co., the

question of whether hail fell on a particular location on a particular day and

whether it caused property damage was not a matter solely within the scope of

the expert’s knowledge.

639

Concerning legal fees, what constitutes reasonable fees is a question of

fact.

640

However, expert testimony that is clear, direct, and uncontroverted

may establish fees as a matter of law.

641

“To constitute proper summary

judgment evidence . . . an affidavit [supporting attorneys’ fees] must be made

on personal knowledge, set forth facts which would be admissible in

evidence, and show the affiant’s competence.”

642

However, the supreme

court has given significant leeway on the specificity required when the

affidavit is not contested.

643

An attorney’s explanation of how he or she expects an expert to testify,

offered in response to a discovery request, is not competent summary judgment

evidence.

644

633. Nicholson v. Mem’l Hosp. Sys., 722 S.W.2d 746, 751 (Tex. App.—Houston [14th Dist.]

1986, writ ref’d n.r.e.); see also Hernandez v. Lukefahr, 879 S.W.2d 137, 142 (Tex. App.—Houston

[14th Dist.] 1994, no writ); White v. Wah, 789 S.W.2d 312, 318 (Tex. App.—Houston [1st Dist.]

1990, no writ).

634. Abraham v. Union Pac. R.R., 233 S.W.3d 13, 18 (Tex. App.—Houston [14th Dist.] 2007,

pet. denied).

635. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

636. Id.

637. Choice v. Gibbs, 222 S.W.3d 832, 836 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

638. See id. at 837–38.

639. U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 218 (Tex. App.—San Antonio 2012, pet.

denied).

640. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881–82 (Tex. 1990) (per

curiam).

641. Id. at 882; see also infra Part 1.VI (discussing attorneys’ fees).

642. Collins v. Guinn, 102 S.W.3d 825, 837 (Tex. App.—Texarkana 2003, pet. denied)

(alteration in original) (quoting Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 397 (Tex. App.—

Texarkana 2002, no pet.)); see infra Part 1.VI (discussing attorneys’ fees).

643. See Garcia v. Gomez, 319 S.W.3d 638, 640–41 (Tex. 2010).

644. Kiesel v. Rentway, 245 S.W.3d 96, 101 (Tex. App.—Dallas 2008, pet. dism’d).

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b. Sufficiency of Expert Opinion

In E.I. du Pont de Nemours & Co. v. Robinson, the Texas Supreme Court

held that an expert’s testimony must be based upon a reliable foundation and

be relevant.

645

The genesis of the standards of reliability and relevance concerning

expert testimony was the U.S. Supreme Court case of Daubert v. Merrell

Dow Pharmaceuticals, Inc., which held that under the Federal Rules of

Evidence, the trial court “must ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable.”

646

In Kumho Tire Co. v.

Carmichael, the Supreme Court extended Daubert, holding that the factors

enunciated by Daubert that a court must consider in making its relevance and

reliability determination apply to engineers and other experts who are not

scientists.

647

The court must determine, pursuant to Federal Rule of Evidence

702, whether the expert opinion is “scientifically valid,” based on factors

such as the following: (1) whether the theory or technique has been subjected

to peer review and publication; (2) the known or potential rate of error of the

technique; and (3) whether the theory or technique is “generally accepted” in

the scientific community.

648

Similarly, Texas Rule of Evidence 702 states, “[i]f scientific, technical,

or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify thereto in the

form of an opinion or otherwise.”

649

The other relevant evidentiary rule, Texas Rule of Evidence 705,

provides “[i]f the court determines that the underlying facts or data do not

provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the

opinion is inadmissible.”

650

These rules impose a gatekeeping obligation on the trial judge to ensure

the reliability of all expert testimony.

651

The trial judge fulfills this obligation

by determining the following as a precondition to admissibility: (1) the

putative expert is qualified as an expert; (2) the expert’s testimony has a

645. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995); see also

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904 (Tex. 2004).

646. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).

647. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

648. Daubert, 509 U.S. at 592–94.

649. TEX. R. EVID. 702.

650. TEX. R. EVID. 705(c). Rule 703 allows expert witnesses, in forming their opinions, to rely

on facts that would be inadmissible in evidence if such facts are “of a type reasonably relied upon

by experts in the particular field in forming opinions or inferences upon the subject.” TEX. R. EVID.

703.

651. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998) (quoting

McKendall v. Crown Control Corp., 122 F.3d 803, 806–07 n.1 (9th Cir. 1997)).

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reliable basis in the knowledge and experience of the relevant discipline; and

(3) the testimony is relevant.

652

Use of experts in summary judgment practice requires meeting these

standards for experts through summary judgment evidence. Many

Daubert/Robinson battles are causation battles fought at the summary

judgment stage. They are a unique mixture of trial and summary judgment

practice. Generally, the defendant does one of two things: (1) moves for

summary judgment on the grounds that its own expert testimony conclusively

disproves causation and the plaintiff’s expert testimony does not raise a fact

issue on causation because he or she does not pass the Daubert/Robinson test;

or more simply, (2) moves for summary judgment on the grounds that there

is no evidence of causation because the plaintiff’s causation expert testimony

does not pass Daubert/Robinson. If the movant objects to expert evidence

relied upon by the nonmovant based on reliability, “the evidence must be

both admissible and legally sufficient to withstand [a] no evidence

challenge.”

653

The possible results of failure to meet the Daubert/Robinson test are

demonstrated by Weiss v. Mechanical Associated Services, Inc. In Weiss, the

San Antonio Court of Appeals determined that the trial court did not abuse

its discretion in effectively excluding the plaintiff’s expert testimony on

causation by granting the defendant’s motion for summary judgment.

654

The

appellate court rejected any evidence by the expert on the grounds that it

failed to meet the Robinson test.

655

This ruling carries the following implications: (1) in a summary judgment

proceeding, the movant challenging the expert’s testimony need not request a

Robinson hearing and secure a formal ruling from the trial court; and (2) the

granting of the summary judgment, even if the order does not mention the

expert challenge, in effect, is a ruling sustaining the movant’s expert

challenge.

656

Conversely, the El Paso Court of Appeals has held that if a trial

court agrees that an expert’s testimony is admissible, the expert’s opinion

constitutes more than a scintilla of evidence to defeat a no-evidence summary

652. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904 (Tex. 2004); E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

653. Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.]

2007, pet. denied); Frias v. Atl. Richfield Co., 104 S.W.3d 925, 928 n.2 (Tex. App.—Houston [14th

Dist.] 2003, no pet.).

654. Weiss v. Mech. Associated Servs., Inc., 989 S.W.2d 120, 125–26 (Tex. App.—San

Antonio 1999, pet. denied).

655. Id. at 124–25.

656. Id. at 124 n.6.

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judgment.

657

Other courts have implicitly ruled on the reliability of expert

testimony at summary judgment.

658

The Texarkana Court of Appeals in Bray v. Fuselier, however,

refused to rule that the trial court’s granting of summary judgment was an

implicit ruling on the Robinson challenge because the defendant had made

numerous other objections to the plaintiff’s summary judgment evidence,

and it could be argued that the court’s granting of summary judgment was

an implicit ruling on any one of these other objections.

659

An expert’s opinion that is unsupported and speculative on its face can

be challenged for the first time on appeal.

660

c. Procedural Issues

Before the advent of no-evidence motions for summary judgment in

state practice, courts did not apply evidentiary sanctions and exclusions

because a party failed to timely designate an expert witness in a summary

judgment proceeding.

661

However, now a party must timely disclose its

expert as required by Texas Rule of Civil Procedure 193.6.

662

Otherwise,

absent a showing of good cause for the failure to act timely or a lack of unfair

surprise or prejudice for the other parties, the trial court may properly exclude

that expert’s testimony.

663

A party relying on an expert in either its summary judgment motion or

response cannot wait until trial to develop the expert’s qualifications. In

United Blood Services v. Longoria, the Texas Supreme Court required

summary judgment proof of an expert’s qualifications in support of the

response to a motion for summary judgment.

664

Using an abuse of discretion

standard, the supreme court upheld the trial court’s determination that the

expert was not qualified and entered a take-nothing judgment against the

657. Barraza v. Eureka Co., 25 S.W.3d 225, 232 (Tex. App.—El Paso 2000, pet. denied).

658. See Emmett Props., Inc. v. Halliburton Energy Servs., Inc., 167 S.W.3d 365, 374 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (affirming no-evidence summary judgment because

plaintiffs’ expert report was conclusory and failed to consider alternative causes); Martinez v. City

of San Antonio, 40 S.W.3d 587, 595 (Tex. App.—San Antonio 2001, pet. denied) (“Although

causation may be proved by expert testimony, the probability about which the expert testifies must

be more than coincidence for the case to reach a jury.”).

659. Bray v. Fuselier, 107 S.W.3d 765, 770 (Tex. App.—Texarkana 2003, pet. denied).

660. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.

2004).

661. Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (per

curiam).

662. TEX. R. CIV. P. 193.6 (providing that a party who fails to timely respond to discovery may

not introduce evidence of the material or testimony of a witness not disclosed).

663. Fort Brown Villas III Condo. Ass’n, 285 S.W.3d. at 881.

664. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam).

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plaintiff who relied on the disqualified expert.

665

The supreme court

specifically rejected the approach of waiting for trial.

666

The proponent of an expert bears the burden of demonstrating an

expert’s qualifications, reliability, and relevance.

667

“[O]nce a party objects

to the expert’s testimony, the party offering the expert . . . has the burden of

proof to establish that the testimony is admissible.”

668

For example, in Hight

v. Dublin Veterinary Clinic, the court found no abuse of discretion in striking

an expert’s affidavit.

669

Although the expert’s affidavit provided information

that the expert reviewed various records and that “certain general principles

exist in connection with the use of anesthesia,” the affidavit had no

information concerning the methodology and the basis underlying the

opinion testimony and how they related to the expert’s opinion.

670

Without

such information, the court found it “impossible to determine the issue of

reliability.”

671

The question then becomes how does one qualify an expert and establish

reliability and relevance in a summary judgment context? This question is

complicated by the significant procedural differences between summary

judgment proceedings and expert procedure.

Procedurally, it should be sufficient for a defendant movant to file a no-

evidence motion for summary judgment simply challenging the element of

causation. The nonmovant would then come forward in its response with its

expert testimony establishing causation. Then in its reply, the movant would

raise specific challenges to admissibility and legal sufficiency of the expert’s

testimony.

Another issue that arises is that underlying procedural differences may

complicate the decision of how to deal with experts in summary judgment

proceedings. When a party submits both a Robinson challenge and a no-

evidence motion for summary judgment, “the trial court is presented with two

different applicable procedures.”

672

The implications of these two different

applicable procedures follow.

665. Id. at 30–31.

666. Id. at 30.

667. See TEX. R. EVID. 702; Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.

2002); Fraud-Tech, Inc. v. ChoicePoint, Inc., 102 S.W.3d 366, 382, 384 (Tex. App.—Fort Worth

2003, pet. denied).

668. Barraza v. Eureka Co., 25 S.W.3d 225, 230 (Tex. App.—El Paso 2000, pet. denied) (citing

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995)).

669. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App.—Eastland 2000, pet.

denied).

670. Id. at 622.

671. Id.

672. Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290, 301 (Tex. App.—Beaumont 2010,

pet. dism’d) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State

and Federal Practice, 46 HOUS. L. REV. 1379, 1450 (2010)).

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i. The Evidence Supporting the Summary Judgment Is

Evaluated Differently

In a summary judgment hearing, the trial court assumes that all evidence

favorable to the nonmovant is true and determines if there is a genuine issue

of material fact.

673

In a Daubert/Robinson hearing, once a party objects to the

expert’s testimony, the party offering the expert bears the burden of

responding to each objection and showing that the testimony is admissible by

a preponderance of the evidence.

674

Then, the trial court evaluates the

evidence for reliability to determine admissibility.

675

ii. The Standard of Review Applied on Appeal Is Different

In reviewing the grant of a summary judgment, the appellate review is

de novo.

676

In the context of a summary judgment, a trial court’s exclusion of

expert testimony is reviewed under an abuse of discretion standard.

677

Although acknowledging that a Robinson challenge in the summary

judgment context invokes two different standards of review, a Houston court

nevertheless concluded that, as a practical matter, any differences could not

affect the result on appeal.

678

The court stated:

In the context of a no evidence motion for summary judgment where,

as here, expert evidence relied upon by the nonmovant is objected to

by the movant based on reliability, the evidence must be both

admissible and legally sufficient to withstand the no evidence

challenge. Therefore, contrary to the parties’ arguments in this regard,

there is no issue here of which standard of review to apply (abuse of

discretion or legal sufficiency) because both must ultimately be

satisfied. Moreover, because we cannot, as a practical matter, envision

a situation in which expert testimony would be reliable enough to be

admissible or legally sufficient, but not the other, we believe that the

decision reached on reliability will produce the same disposition,

regardless [of] whether it is viewed from the standpoint of

admissibility or legal sufficiency.

679

673. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49

(Tex. 1985).

674. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

675. See id. at 557–58.

676. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); see infra Part 1.V.F

(discussing standard of review).

677. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003).

678. Frias v. Atl. Richfield Co., 104 S.W.3d 925, 928 n.2 (Tex. App.—Houston [14th Dist.]

2003, no pet.).

679. Id.; accord Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied) (citing Frias, 104 S.W.3d at 928 n.2).

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iii. In a Summary Judgment Hearing, Oral Argument Is

Typically Not Recorded and Is Not Considered as Evidence

No live testimony may be presented at a summary judgment

hearing.

680

Conversely, a Daubert/Robinson hearing typically is recorded

and included in the record on appeal. In a Daubert/Robinson hearing there

is opportunity for live testimony and cross examination of the expert.

681

This form of evidence is especially important when the outcome of the

Daubert/Robinson hearing is case determinative.

These differences create a hybrid and seemingly inconsistent approach

between expert and summary judgment procedure. Possibilities of how to

deal with experts in summary judgment proceedings include the following:

(a) Daubert/Robinson Hearing

The expert’s proponent may request a Daubert/Robinson hearing. In

meeting its gatekeeping function, the trial judge must weigh the evidence

and the credibility of the witnesses, including the expert.

682

Summary

judgment procedure does not allow for this sort of give and take. Thus,

if summary judgment opponents submit conflicting affidavits concerning

qualifications, reliability, or relevance of one side’s expert, the judge

logically cannot apply summary judgment standards. A hearing is

appropriate. In Pink v. Goodyear Tire & Rubber Co., the Beaumont Court

of Appeals required a separate process.

683

It reasoned that by conducting

a separate Daubert/Robinson hearing before considering a no-evidence

motion for summary judgment, the trial court applies the processes that

are specific to each hearing, provides the parties notice and an

opportunity to present the best available evidence, and creates a full

record for appellate review.

684

The Houston Fourteenth Court of Appeals has suggested the use of a

Daubert/Robinson hearing to overcome a challenge to an expert’s

680. TEX. R. CIV. P. 166a(c); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n.4 (Tex.

1992); see infra Part 1.I.I. (Hearing and Submission).

681. Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290, 301 (Tex. App.—Beaumont 2010,

pet. dism’d).

682. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556–58 (Tex. 1995).

683. Pink, 324 S.W.3d at 301–02 (citing Judge David Hittner & Lynne Liberato, Summary

Judgments in Texas: State and Federal Practice, 46 HOUS. L. REV. 1379, 1450 (2010)).

684. Id. at 302. (“If the trial court decides the [expert’s] affidavit must be stricken because of

unreliable foundational data, methodology, or technique, or for some other reason, the trial court

may then decide whether to grant the no-evidence summary judgment, or “order a continuance to

permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such

other order as is just.”) (quoting TEX. R. CIV. P. 166a(g)).

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reliability.

685

However, for strategic purposes, an opponent of the expert may

not want an evidentiary hearing. Under the logic of Weiss, all the opponent

must do is file a motion for summary judgment and object to the expert’s

affidavit when it is attached as summary judgment evidence to the

response.

686

If the court grants the summary judgment, there is no error in

failing to conduct a Daubert/Robinson hearing, and through the granting of

the summary judgment motion, the expert’s testimony is inferentially ruled

unqualified, unreliable, or irrelevant. Thus, unless a nonmovant is certain the

judge will not grant the summary judgment, the wise course of action is to

arrange for a Daubert/Robinson hearing.

If the Daubert/Robinson hearing is conducted at the same time as the

summary judgment hearing, do not submit other summary judgment evidence.

The case authority is strict that all summary judgment evidence must be in

writing and may not be presented at a summary judgment hearing.

687

The wisest

course may be to hold the Daubert/Robinson hearing in advance of the summary

judgment hearing. That way, if the judge strikes the expert, the proponent can

find another or attempt to bolster that expert.

(b) Deposition of Own Expert

To make a Daubert/Robinson showing, a party may have to depose

its own expert extensively about the factual basis for his or her opinions

and about the scientific foundation for them. Affidavits may be too

unwieldy to cover all the grounds necessary to qualify an expert.

Written reports from experts, unless sworn to, are not proper summary

judgment evidence.

688

However, because the party challenging the report

failed to obtain a ruling on its objection, the Fort Worth Court of Appeals held

that an unsworn, stand-alone expert report was “not incompetent” and was the

685. Praytor v. Ford Motor Co., 97 S.W.3d 237, 246 (Tex. App.—Houston [14th Dist.] 2002,

no pet.) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 HOUS. L.

REV. 1303, 1348 (1998)).

686. See Weiss v. Mech. Associated Servs., Inc., 989 S.W.2d 120, 123–24 (Tex. App.—San

Antonio 1999, pet. denied).

687. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 & n.4 (Tex. 1992).

688. See TEX. R. CIV. P. 166a(f) (requiring that “[s]upporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Twist

v. Garcia, No. 13-05-00321-CV, 2007 WL 2442363, at *5 (Tex. App.—Corpus Christi Aug. 30,

2007, no pet.) (mem. op.) (finding an unsworn expert report to be inadmissible).

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“equivalent to sworn testimony.”

689

It based its holding on the fact that the

supreme court, which had remanded the case, had held that the expert’s

affidavit had probative value because the party challenging it failed to get a

ruling on its objection to the affidavit.

690

The lesson from this case and others

is that objections not only need to be made but a ruling must be secured.

If affidavits are used, the affidavits may require publications, articles, or

other qualifying materials attached to them.

2. Nonexpert, Interested Witness Testimony

In addition to expert testimony, nonexpert, interested party testimony may

provide a basis for summary judgment.

691

The interested party’s testimony must be “clear, positive and direct,

otherwise credible . . . and could have been readily controverted.”

692

This

determination is made on a case-by-case basis.

693

The mere fact that summary

judgment proof is self-serving does not necessarily make the evidence an

improper basis for summary judgment.

694

An example of competent interested party testimony is provided by

Texas Division-Tranter, Inc. v. Carrozza. In Carrozza, the supreme court

found that in a retaliatory discharge action under the workers’ compensation

law, interested party testimony by supervisory and administrative personnel

established a legitimate, nondiscriminatory reason for the discharge.

695

The

court explained that the affidavit testimony could have been readily

controverted by facts and circumstances belying the employer’s neutral

explanation and thereby raising a material issue of fact.

696

Statements of interested parties, testifying about what they knew or

intended, are self-serving and do not meet the standards for summary

689. Seim v. Allstate Texas Lloyds, No. 02-16-00050-CV, 2018 WL 5832106, at *3 n.6 (Tex.

App.—Fort Worth Nov. 8, 2018, no pet. h.) (citing Judge David Hittner & Lynne Liberato, Summary

Judgments in Texas: State and Federal Practice, 52 HOUS. L. REV. 773, 856 (2015)).

690. Id.

691. E.g., Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam);

Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam); Danzy

v. Rockwood Ins. Co., 741 S.W.2d 613, 614–15 (Tex. App.—Beaumont 1987, no writ).

692. TEX. R. CIV. P. 166a(c); accord McMahan v. Greenwood, 108 S.W.3d 467, 480 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied).

693. Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394, 399 (Tex. App.—San

Antonio 2000, no pet.) (citing TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS: PRACTICE,

PROCEDURE AND REVIEW § 6.03[9][a], at 69 (2d ed. 1995)).

694. Trico Techs. Corp., 949 S.W.2d at 310 (citing Republic Nat’l Leasing Corp., 717 S.W.2d

at 607); see TEX. R. CIV. P. 166a(c).

695. Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313–14 (Tex. 1994) (per curiam).

696. Id. at 313.

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judgment proof.

697

Issues of intent and knowledge are not susceptible to being

readily controverted and, therefore, are not appropriate for summary

judgment proof.

698

However, if the affidavits of interested witnesses are

detailed and specific, those affidavits may be objective proof sufficient to

establish the witnesses’ state of mind as a matter of law.

699

To meet the

competency standard, interested witness testimony “must demonstrate

personal knowledge, must positively and unqualifiedly state that the facts

represented as true are true, and must not be conclusory.”

700

III. BURDEN OF PROOF FOR SUMMARY JUDGMENTS

Understanding which party has the burden of proof is fundamental to

determining each party’s requirements for moving for summary judgment or

responding to a motion for summary judgment. The burden of proof on

summary judgment is now allocated in the same manner for defendants and

plaintiffs in both state and federal court.

701

“[T]he party with the burden of

proof at trial will have the same burden of proof in a summary judgment

proceeding.”

702

A defendant may move for summary judgment in the following ways:

(1) by establishing that no material issue of fact exists concerning

one or more essential elements of the plaintiff’s claims;

(2) by establishing all the elements of its affirmative defense;

(3) by asserting through a no-evidence summary judgment that the

plaintiff lacks evidence to support an essential element of its

claim; or

697. Grainger v. W. Cas. Life Ins. Co., 930 S.W.2d 609, 615 (Tex. App.—Houston [1st Dist.]

1996, writ denied) (citing Clark v. Pruett, 820 S.W.2d 903, 906 (Tex. App.—Houston [1st Dist.]

1991, no writ)). But see infra Part 1.VII.G.3 (discussing an exception in media defamation cases

that allows state of mind testimony as summary judgment evidence).

698. Murray v. Cadle Co., 257 S.W.3d 291, 302 (Tex. App.—Dallas 2008, pet. denied); Clark,

820 S.W.2d at 906; Allied Chem. Corp. v. DeHaven, 752 S.W.2d 155, 158 (Tex. App.—Houston

[14th Dist.] 1988, writ denied).

699. See Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 941–42 (Tex. 1988); see also infra Part

1.VII.G (discussing defamation actions).

700. Evans v. MIPTT, L.L.C., No. 01-06-00394-CV, 2007 WL 1716443, at *3 (Tex. App.—

Houston [1st Dist.] June 14, 2007, no pet.) (mem. op.) (citing Ryland Grp., Inc. v. Hood, 924 S.W.2d

120, 122 (Tex. 1996) (per curiam)).

701. See TEX. R. CIV. P. 166a cmt.—1997 (referring to a party’s claim or defense); Lampasas

v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)) (applying the federal standard of

reviewing summary judgments to Texas summary judgment practice); see also City of Keller v.

Wilson, 168 S.W.3d 802, 825–26 (Tex. 2005); infra section III (Comparison of State & Federal

Summary Judgment Practice).

702. Barraza v. Eureka Co., 25 S.W.3d 225, 231 (Tex. App.—El Paso 2000, pet. denied).

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(4) by proving each element of its counterclaim as a matter of

law.

703

A plaintiff may move for summary judgment in the following ways:

(1) by showing entitlement to prevail as a matter of law on each

element of a cause of action, except the amount of damages;

(2) by demonstrating the lack of a genuine issue of material fact

concerning an affirmative defense; or

(3) by attacking affirmative defenses through a no-evidence

summary judgment.

704

A. Traditional Summary Judgments

The standard for determining whether a movant for a traditional motion

for summary judgment has met its burden is whether the movant has shown

that there is no genuine issue of material fact and judgment should be granted

as a matter of law.

705

The party with the burden of proof must prove it is

entitled to judgment by establishing each element of its own claim or defense

as a matter of law or by negating an element of the nonmovant’s claim or

defense as a matter of law.

706

1. Defendant as Movant

A defendant who conclusively negates a single essential element of a cause

of action or conclusively establishes an affirmative defense is entitled to

summary judgment on that claim.

707

As it relates to negation of an element,

summary judgment is proper for a defendant as movant if the defendant

establishes that no genuine issue of material fact exists concerning one or more

essential elements of the plaintiff’s claims.

708

The movant has the burden of

proof and all doubts are resolved in favor of the nonmovant.

709

For example, in D. Houston, Inc. v. Love, the supreme court affirmed

the appellate court’s reversal of a summary judgment granted to a men’s club

because it failed to negate as a matter of law the duty to take reasonable care

703. See TEX. R. CIV. P. 166a.

704. See id.

705. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003).

706. Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex., 2016); M.D. Anderson Hosp. & Tumor

Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).

707. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nall v. Plunkett, 404

S.W.3d 552, 555 (Tex. 2013); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

708. See TEX. R. CIV. P. 166a(c); Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427 (Tex.

2017); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999);

Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

709. Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex. 1982) (per curiam);

Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384, 385 (Tex. App.—El Paso 2009, no pet.).

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to prevent its employee from driving after she left work.

710

The employee, an

exotic dancer, claimed that the club required her to consume alcohol in

sufficient amounts to become intoxicated.

711

She also testified that the club

made more money if a customer bought her drinks.

712

She testified she

consumed only alcohol purchased for her by customers.

713

When asked in her

deposition to admit why she chose to order alcoholic rather than nonalcoholic

beverages, she replied, “I wanted to keep my job.”

714

The supreme court held

that this testimony, though controverted, raised a fact question regarding the

club’s control over the dancer’s decision to consume sufficient alcohol to

become intoxicated.

715

Thus, the club did not disprove as a matter of law that

it did not exercise sufficient control over the dancer to create a legal duty.

716

Scott and White Memorial Hospital v. Fair is another example of a

traditional motion for summary judgment.

717

The hospital moved for

summary judgment, asserting that accumulated ice on which the plaintiff was

injured did not pose an unreasonable risk of harm.

718

After the trial court

granted summary judgment, the court of appeals reversed, holding that “Scott

and White failed to conclusively establish that the ice accumulation was in

its natural state and was not an unreasonably dangerous condition.”

719

The

supreme court reversed the court of appeals, holding that the hospital met its

burden to negate the unreasonable risk element of a premises liability claim

through affidavit evidence from a local meteorologist, the hospital grounds

supervisor, and the plaintiff.

720

The court reasoned that this evidence showed

that an ice storm hit the area, causing ice to accumulate on the hospital

grounds, including the road where the plaintiff fell.

721

In holding that

naturally occurring ice that accumulates without the assistance or

involvement of unnatural contact is not an unreasonably dangerous condition

sufficient to support a premises liability claim, the court determined that the

plaintiffs “did not present any controverting evidence . . . that the ice resulted

from something other than the winter storm.”

722

710. D. Houston, Inc. v. Love, 92 S.W.3d 450, 457 (Tex. 2002).

711. Id. at 455.

712. Id.

713. Id. at 456.

714. Id. at 455–56 (describing the employee’s deposition testimony).

715. Id. at 456.

716. Id. at 454–56.

717. See Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010).

718. Id.

719. Id. (internal quotation marks omitted).

720. Id. at 415.

721. Id.

722. Id.

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In another personal injury case, the defendant successfully negated

proximate cause in a negligent entrustment case.

723

The supreme court upheld

a summary judgment on the basis that an accident that occurs eighteen days

after entrustment of a car involved in an accident injuring the plaintiff is too

attenuated to be the proximate cause of those injuries.

724

2. Plaintiff as Movant on Affirmative Claims

When the plaintiff moves for traditional summary judgment on

affirmative claims it is in much the same position as a defendant. The plaintiff

must show entitlement to prevail on each element of the cause of action,

725

except the amount of damages. Damages are specifically exempted by Rule

166a(a).

726

The plaintiff meets the burden if he or she “produces evidence

that would be sufficient to support an instructed verdict at trial.”

727

Where the plaintiff is the movant on its affirmative claims, the plaintiff

must affirmatively demonstrate by summary judgment evidence that there is

no genuine issue of material fact concerning each element of its claim for

relief.

728

If the defendant also has a counterclaim on file, to be entitled to a

final summary judgment, the plaintiff must: (1) establish the elements of its

cause of action as a matter of law; and (2) disprove at least one element of

the defendant’s counterclaim as a matter of law.

729

3. Affirmative Defenses

The defendant urging summary judgment on an affirmative defense is in

much the same position as a plaintiff urging summary judgment on an

affirmative claim. There are many examples of summary judgments granted

when a defendant has moved for summary judgment on an affirmative

723. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (per curiam).

724. Id. at 148–49.

725. See, e.g., Fry v. Comm’n for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex. App.—

Houston [14th Dist.] 1998, pet. denied); Green v. Unauthorized Practice of Law Comm., 883

S.W.2d 293, 297 (Tex. App.—Dallas 1994, no writ); Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d

874, 876 (Tex. App.—Dallas 1990, no writ); Bergen, Johnson & Olson v. Verco Mfg. Co., 690

S.W.2d 115, 117 (Tex. App.—El Paso 1985, writ ref’d n.r.e.).

726. TEX. R. CIV. P. 166a(c). The exception that the plaintiff need not show entitlement to

prevail on damages applies only to the amount of unliquidated damages, not to the existence of

damages or loss. Rivera v. White, 234 S.W.3d 802, 805–07 (Tex. App.—Texarkana 2007, no pet.).

Unliquidated damages may be proved up at a later date. Id.

727. Ardmore, Inc. v. Rex Grp., Inc., 377 S.W.3d 45, 54 (Tex. App.—Houston [1st Dist.] 2012,

pet. denied); FDIC v. Moore, 846 S.W.2d 492, 494 (Tex. App.—Corpus Christi 1993, writ denied).

728. See TEX. R. CIV. P. 166a; see also Certain Underwriters at Lloyd’s v. LM Ericsson

Telefon, AB, 272 S.W.3d 691, 694 (Tex. App.—Dallas 2008, pet. denied).

729. Taylor v. GWR Operating Co., 820 S.W.2d 908, 910 (Tex. App.—Houston [1st Dist.]

1991, writ denied); Adams v. Tri-Cont’l Leasing Corp., 713 S.W.2d 152, 153 (Tex. App.—Dallas

1986, no writ).

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defense.

730

“When a defendant moves for summary judgment based on an

affirmative defense, . . . the defendant, as movant, bears the burden of proving

each essential element of that defense.”

731

The movant-defendant must come

forward with summary judgment evidence for each element.

732

Once the

movant-defendant conclusively establishes the elements of its affirmative

defense, the burden is shifted to the nonmovant-plaintiff to raise a genuine

issue of material fact.

733

If the movant fails to conclusively establish the

affirmative defense, the nonmovant-plaintiff has no burden to present summary

judgment evidence to the contrary.

734

Even so, it is a wise practice to file a

response to every summary judgment motion. “[A]n unpleaded affirmative

defense may also serve as the basis for a summary judgment when it is raised in

the summary judgment motion, and the opposing party does not object to the

lack of a [R]ule 94 pleading in either its written response or before the rendition

of judgment.”

735

Defendants seeking summary judgment based on the statute of

limitations, an affirmative defense, face a dual burden.

736

In Burns v.

Thomas, the supreme court held that a “defendant seeking summary

judgment on the basis of limitations must prove when the cause of action

accrued.”

737

The defendant must also negate the discovery rule, if it has been

730. See e.g. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 53 (Tex.

2017) (upholding summary judgment defeating a tortious interference claim based on justification).

731. FDIC v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012) (quoting Ryland Grp., Inc. v. Hood, 924

S.W.2d 120, 121 (Tex. 1996) (per curiam)).

732. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748–49 (Tex.

1999); Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Nichols v. Smith, 507 S.W.2d

518, 520 (Tex. 1974) (“[T]he pleading of an affirmative defense will not, in itself, defeat a motion

for summary judgment by a plaintiff whose proof conclusively establishes his right to an instructed

verdict if no proof were offered by his adversary in a conventional trial on the merits.”).

733. Nichols, 507 S.W.2d at 521.

734. See Torres v. W. Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex. 1970) (finding that while the

plaintiff would suffer a directed verdict at a trial based on the record for failing to carry the burden

of proof, the plaintiff has no such burden on defendant’s motion for summary judgment); see also

Deer Creek Ltd. v. N. Am. Mortg. Co., 792 S.W.2d 198, 200–01 (Tex. App.—Dallas 1990, no writ)

(noting when the mortgage company sufficiently pleaded and proved release, the burden shifted to

the debtor to raise a fact issue concerning a legal justification for setting aside the release).

735. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991). Texas Rule of

Civil Procedure 94 concerns affirmative defenses. In relevant part, it provides:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and

satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge

in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow

servant, laches, license, payment, release, res judicata, statute of frauds, statute of

limitations, waiver, and any other matter constituting an avoidance or affirmative

defense.

TEX. R. CIV. P. 94.

736. Exxonmobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 546 n.12 (Tex. 2017); See infra

Part 1.VII.C (discussing statutes of limitations and statutes of repose).

737. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990).

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raised, by proving as a matter of law that there is no genuine issue of material

fact about when the plaintiff discovered or should have discovered the nature of

the injury.

738

Thus, when the nonmovant interposes a suspension statute, the

burden is on the movant to negate the applicability of the tolling statute.

739

This

burden does not apply to a party seeking to negate the discovery rule when the

nonmovant has not pleaded or otherwise raised the discovery rule.

740

A plaintiff who has conclusively established the absence of disputed fact

issues in its claim for relief will not be prevented from obtaining summary

judgment because the defendant merely pleaded an affirmative defense.

741

The plaintiff is not under any obligation to negate affirmative defenses.

742

Merely pleading of an affirmative defense, without supporting proof, will not

defeat an otherwise valid motion for summary judgment.

743

An affirmative defense will prevent the granting of a summary judgment

only if the defendant establishes as a matter of law each element of its

affirmative defense by summary judgment evidence.

744

If the defendant

establishes an affirmative defense as a matter of law, the burden then shifts

back to the plaintiff to raise a fact issue.

745

In conclusively establishing the

elements of its claim for the purposes of seeking a summary judgment, a

movant is not required to negate or even address affirmative defenses.

746

738. Id. at 267–68; Town of DISH v. Atmos Energy Corp., 519 S.W.3d 605 (Tex. 2017). The

discovery rule essentially states that the statute of limitations does not begin to run until discovery

of the wrong or until the plaintiff acquires knowledge that, in the exercise of reasonable diligence,

would lead to the discovery of the wrong. See id.; see also Moreno v. Sterling Drug, Inc., 787

S.W.2d 348, 351 (Tex. 1990); Gaddis v. Smith, 417 S.W.2d 577, 578, 580–81 (Tex. 1967),

superseded by statute on other grounds, TEX. CIV. PRAC. & REM. CODE ANN. § 74.251 (West 2017).

739. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975) (per curiam) (finding the

burden was on the movant to prove the affirmative defense of limitations by conclusively

establishing lack of diligence and the inapplicability of the tolling statute).

740. In re Estate of Matejek, 960 S.W.2d 650, 651 (Tex. 1997) (per curiam); see also Camp

Mystic, Inc. v. Eastland, 390 S.W.3d 444, 452–53 (Tex. App.—San Antonio 2012, pet. granted,

judgm’t vacated w.r.m.).

741. Kirby Expl. Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926 (Tex. App.—Houston

[1st Dist.] 1985, writ ref’d n.r.e.); Clark v. Dedina, 658 S.W.2d 293, 296 (Tex. App.—Houston [1st

Dist.] 1983, writ dism’d).

742. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied).

743. Hammer v. Powers, 819 S.W.2d 669, 673 (Tex. App.—Fort Worth 1991, no writ).

744. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding that an affidavit

supporting an affirmative defense was conclusory, and therefore, not sufficient summary judgment

evidence).

745. See “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936–37 (Tex. 1972)

(regarding the plea of the affirmative defense of promissory estoppel).

746. ExxonMobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017).

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4. Counterclaims

A defendant seeking summary judgment on a counterclaim has the

same burden as a plaintiff. It must prove each element of its counterclaim

as a matter of law.

747

B. No-Evidence Summary Judgments

Under the no-evidence summary judgment rule, a party without the

burden of proof at trial may move for summary judgment on the basis that

the nonmovant lacks evidence to support an essential element of its claim or

affirmative defense.

748

A party may never properly urge a no-evidence

summary judgment on the claims or defenses on which it has the burden of

proof.

749

A defendant cannot file a no-evidence motion for summary

judgment on an affirmative defense for which it has the burden of proof at

trial.

750

The thrust of the no-evidence summary judgment rule is to require

evidence from the nonmovant.

751

A common use of a no-evidence motion is

to challenge an opponent’s expert testimony as lacking probative value and

thus constituting no evidence.

752

A no-evidence summary judgment will be upheld if the summary

judgment record reveals no evidence of a challenged element. Specifically,

if:

(1) there is a complete absence of evidence concerning the challenged

element;

(2) the evidence offered to prove a challenged element is no more than

a scintilla;

(3) the evidence establishes conclusively the opposite of the challenged

element; or

747. See Daniell v. Citizens Bank, 754 S.W.2d 407, 408–09 (Tex. App.—Corpus Christi 1988,

no writ).

748. TEX. R. CIV. P. 166a(i); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015);

Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam).

749. Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003,

no pet.) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 54 BAYLOR

L. REV. 1, 62 (2002)).

750. Killam Ranch Props., Ltd. v. Webb County, 376 S.W.3d 146, 157 (Tex. App.—San

Antonio 2012, pet. denied) (en banc); Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 838 (Tex.

App.—Dallas 2005, no pet.).

751. See Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.]

1999, no pet.).

752. See, e.g., Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex. 2010) (per curiam).

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(4) the court is barred by rules of law or of evidence from giving weight

to the only evidence offered to prove the challenged element.

753

Conceivably, a no-evidence motion for summary judgment could be two

pages long and the response two feet thick. The movant need not produce any

evidence in support of its no-evidence claim.

754

Instead, the mere filing of a

proper motion shifts the burden to the nonmovant to come forward with

enough evidence to take the case to a jury.

755

If the nonmovant does not come

forward with such evidence, the court must grant the motion.

756

In Boerjan v. Rodriguez, the supreme court recited the type of evidence

that presumably could have raised a fact issue in a no-evidence summary

judgment granted in a case arising from a fatal accident involving a human

smuggler fleeing from a ranch worker employed by the defendant-movant.

757

The plaintiff-nonmovants contended that they raised a fact issue because an

eyewitness testified that the ranch worker chased the smuggler at a high speed

over unlit roads and thereby created an extreme risk of harm to the decedents.

758

The court determined that the evidence provided no support for such an

inference.

759

The witness, who was also traveling in the smuggler’s truck with

the decedents, testified that the ranch hand’s vehicle was “coming behind” for

“[q]uite a bit of time.”

760

However, the court said this testimony was not

sufficient to raise a fact issue because the witness “said nothing about whether

[the ranch worker] made any aggressive moves, how closely [he] followed [the

smuggler’s] truck, or how fast [the ranch hand] was traveling.”

761

The court

concluded that “[s]imply following a trespasser’s truck is a far cry from the sort

of objective risk that would give rise to gross negligence.”

762

A no-evidence summary judgment is essentially a pretrial directed

verdict.

763

The amount of evidence required to defeat a no-evidence motion

753. Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 589 (2015) (citing King Ranch, Inc. v.

Chapman, 118 S.W.3d 742 (Tex. 2003); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)

(citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L.

REV. 361, 362–63 (1960)); King Ranch, Inc., 118 S.W.3d at 751 (citing Calvert, supra, at 362–63);

see Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex. App.—San Antonio 2000, pet.

denied) (citing Calvert, supra, at 362–63).

754. TEX. R. CIV. P. 166a(i).

755. Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 722 (Tex. App.—Houston [1st Dist.]

2003, no pet.) (quoting Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 34

HOUS. L. REV. 1303, 1356 (1998)).

756. TEX. R. CIV. P. 166a(i).

757. Boerjan v. Rodriguez, 436 S.W.3d 307, 309, 311–12 (Tex. 2014) (per curiam).

758. Id. at 312.

759. Id.

760. Id. (internal quotation marks omitted).

761. Id.

762. Id.

763. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 581 (Tex. 2006); Jimenez v. Citifinancial Mortg. Co., 169 S.W.3d 423,

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for summary judgment parallels the directed verdict and the no-evidence

standard on appeal of jury trials.

764

Thus, if the nonmovant brings forth more

than a scintilla of evidence, that will be sufficient to defeat a no-evidence

motion for summary judgment.

765

A plaintiff attacking affirmative defenses by way of a no-evidence

motion for summary judgment must state the elements of the affirmative

defense for which there is no evidence.

766

Thus, the plaintiff must plead with

specificity the elements of each affirmative defense that it claims lack

evidence.

767

1. “Reasonable Juror” Test Applied to No-Evidence Summary

Judgments

In determining a “no-evidence” issue, the courts “review the evidence

presented . . . 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.”

768

“An appellate court reviewing a summary judgment must consider

whether reasonable and fair-minded jurors could differ in their conclusions in

light of all of the evidence presented.”

769

In Wal-Mart Stores, Inc. v. Spates, the

court noted that it reviewed summary judgments for evidence that “would enable

reasonable and fair-minded jurors to differ in their conclusions.”

770

In Spates, the

court reinstated a no-evidence summary judgment on the basis that a reasonable

juror could not have found that a Wal-Mart employee had constructive notice of

a plastic ring over which a plaintiff had tripped because the only evidence was

that the ring was behind an employee’s back for thirty to forty-five seconds.

771

The court explained:

Had there been evidence it had been on the floor for an extended period

of time, reasonable jurors might assume that the employee should have

425 (Tex. App.—El Paso 2005, no pet.); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986) (comparing summary judgment standard to directed verdict standard in the federal

context).

764. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003).

765. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

766. TEX. R. CIV. P. 166a(i).

767. Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 305 (Tex. App.—Austin 2000,

pet. denied).

768. Timpte Indus., Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc., 206 S.W.3d at 582).

769. Elizondo v. Krist, 415 S.W.3d 259, 271 & n.36 (Tex. 2013) (quoting Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam)).

770. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam) (citing

City of Keller v. Wilson, 168 S.W.3d 802, 822–23 (Tex. 2005)).

771. Id.

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seen it unless she sidled into the aisle or never took her eyes off the

shelves. But on this record, that would be pure speculation.

772

Thus, the court found that there was no evidence that Wal-Mart should have

discovered the six-pack ring that the plaintiff alleged was hazardous.

773

The supreme court reaffirmed the applicability of the “reasonable juror”

test to no-evidence summary judgment review in Mack Trucks, Inc. v.

Tamez.

774

The court held that the plaintiff’s expert testimony on the cause of

a post-accident fire in a truck accident case had been properly excluded and,

therefore, the no-evidence summary judgment had been correctly granted on

causation grounds.

775

Specifically, the court referred to reviewing the

evidence presented in the no-evidence motion and disregarding evidence

contrary to the nonmovant’s position (i.e., the movant’s proof) unless a

reasonable juror could not disregard that evidence.

776

Thus, the opinion

presupposes that the movant for a no-evidence summary judgment may

support its motion with proof that cannot be disregarded on appeal.

In another example, the Texas Supreme Court determined that no

reasonable juror could find that an employee acted in the course and scope of

his employment at the time of an accident despite evidence that the employee

received workers’ compensation benefits.

777

When reviewing no-evidence summary judgment appeals, courts of

appeals tend to cite the “reasonable juror” standard in general recitations of

the law but do not analyze the cases in terms of this standard.

778

2. Historical Development

Until 1997, summary judgment in federal court differed significantly

from summary judgment in Texas state court.

779

The Texas Supreme Court

discussed the difference in Casso v. Brand.

780

In Casso, the supreme court

noted the following:

772. Id.

773. Id.

774. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

775. Id. at 575–77.

776. Id. at 582.

777. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757–58 (Tex. 2007) (per

curiam).

778. See, e.g., Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814, 817–18, 820–21 (Tex. App.—

El Paso 2012, no pet.); In re Estate of Abernethy, 390 S.W.3d 431, 435–36, 439 (Tex. App.—El

Paso 2012, no pet.); West v. SMG, 318 S.W.3d 430, 437, 440–42 (Tex. App.—Houston [1st Dist.]

2010, no pet.); Rankin v. Union Pac. R.R., 319 S.W.3d 58, 63–68 (Tex. App.—San Antonio 2010,

no pet.).

779. See generally Sheila A. Leute, Comment, The Effective Use of Summary Judgment: A

Comparison of Federal and Texas Standards, 40 BAYLOR L. REV. 617, 618–19 (1988) (highlighting

the differences in practice, despite the relative similarity in language of the two rules).

780. Casso v. Brand, 776 S.W.2d 551, 555–56 (Tex. 1989).

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Summary judgments in federal courts are based on different

assumptions, with different purposes, than summary judgments in

Texas. In the federal system, “[s]ummary judgment procedure is

properly regarded not as a disfavored procedural shortcut, but rather as

an integral part of the Federal Rules as a whole, which are designed ‘to

secure the just, speedy and inexpensive determination of every

action.’”

781

The Supreme Court of Texas explained that “federal courts place

responsibilities on both movants and non-movants in the summary judgment

process.”

782

The supreme court specifically refused to follow the federal

approach to summary judgments.

783

The court explained: “While some

commentators have urged us to adopt the current federal approach to

summary judgments generally, we believe our own procedure eliminates

patently unmeritorious cases while giving due regard for the right to a jury

determination of disputed fact questions.”

784

At the time of Casso, the fundamental difference between state and

federal summary judgment practice was the showing required by the movant

before summary judgment would be granted. The court distinguished the two

rules, stating:

While the language of our rule is similar, our interpretation of that

language is not. We use summary judgments merely “to eliminate

patently unmeritorious claims and untenable defenses,” and we never

shift the burden of proof to the non-movant unless and until the movant

has “establish[ed] his entitlement to a summary judgment on the issues

expressly presented to the trial court by conclusively proving all

essential elements of his cause of action or defense as a matter of

law.”

785

In federal court, when the nonmovant bears the burden of proof at trial,

that party alone has the burden of presenting competent evidence to avoid

summary judgment.

786

Since 1997, this burden on the nonmovant is also the

state practice.

On September 1, 1997, Texas experienced a major change in

summary judgment practice with the advent of no-evidence summary

781. Id. (alteration in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

782. Id. at 556.

783. Id.

784. Id. at 556–57 (citation omitted) (citing Judge David Hittner & Lynne Liberato, Summary

Judgments in Texas, 20 ST. MARY’S L.J. 243, 303–05 (1989)).

785. Id. at 556 (alteration in original) (citation omitted) (quoting City of Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 678 & n.5 (Tex. 1979)).

786. See Celotex, 477 U.S. at 322.

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judgments.

787

In other words, the party without the burden of proof at trial

(usually the defendant), without having to produce any evidence, may

move for summary judgment on the basis that the nonmovant (usually the

plaintiff) has no evidence to support an element of its claim (or

defense).

788

The advent of the no-evidence summary judgment has

provided one of the procedural foundations that has shaped lawsuits in

Texas.

789

C. Both Parties as Movants

Both parties may move for summary judgment.

790

When they do so, the

motions are often referred to as cross-motions for summary judgment. When

787. On August 15, 1997, the Texas Supreme Court approved an amendment to Texas Rule of

Civil Procedure 166a, which took effect on September 1, 1997. See TEX. R. CIV. P. 166a. The

amendment added a new subsection (i) to Rule 166a. It reads as follows:

(i) No-Evidence 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 [nonmovant]

produces summary judgment evidence raising a genuine issue of material fact.

TEX. R. CIV. P. 166a(i).

Part of that August 15, 1997 order approving the rule change reads that “[t]he comment appended

to these changes, unlike other notes and comments in the rules, is intended to inform the construction

and application of the rule.” TEX. R. CIV. P. 166a historical note (internal quotation marks omitted).

Thus, in effect, the comment has the force of the rule. It reads:

This comment is intended to inform the construction and application of the rule.

Paragraph (i) authorizes a motion for summary judgment based on the assertion that, after

adequate opportunity for discovery, there is no evidence to support one or more specified

elements of an adverse party’s claim or defense. A discovery period set by pretrial order

should be adequate opportunity for discovery unless there is a showing to the contrary,

and ordinarily a motion under paragraph (i) would be permitted after the period but not

before. The 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. Paragraph (i) does not apply to ordinary

motions for summary judgment under paragraphs (a) or (b), in which the movant must

prove it is entitled to judgment by establishing each element of its own claim or defense

as a matter of law or by negating an element of the [nonmovant’s] claim or defense as a

matter of law. To defeat a motion made under paragraph (i), the [nonmovant] is not

required to marshal its proof; its response need only point out evidence that raises a fact

issue on the challenged elements. The existing rules continue to govern the general

requirements of summary judgment practice. A motion under paragraph (i) is subject to

sanctions provided by existing law (TEX. CIV. PRAC. & REM. CODE §§ 9.001–10.006)

and rules (TEX. R. CIV. P. 13). The denial of a motion under paragraph (i) is no more

reviewable by appeal or mandamus than the denial of a motion under paragraph (c).

TEX. R. CIV. P. 166a cmt.—1997.

788. TEX. R. CIV. P. 166a cmt.—1997.

789. See David Peeples, Lawsuit Shaping and Legal Sufficiency: The Accelerator and the

Brakes of Civil Litigation, 62 BAYLOR L. REV. 339, 357–59 (2010).

790. TEX. R. CIV. P. 166a(a)–(b).

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both parties move for summary judgment, each party must carry its own

burden, and neither can prevail because of the failure of the other to discharge

its burden.

791

When both parties move for summary judgment and one motion is

granted and the other is overruled, all questions presented to the trial court

may be presented for consideration on appeal, including whether the losing

party’s motion should have been overruled.

792

The appellate court reviews

both sides’ summary judgment evidence and renders the judgment the trial

court should have rendered.

793

The case of Hall v. Mockingbird AMC/Jeep, Inc. illustrates an advantage

of filing a cross-motion for summary judgment.

794

In Hall, the trial court

granted a summary judgment for the plaintiff.

795

The court of appeals

reversed the trial court’s judgment and rendered judgment for the

defendant.

796

In the absence of a cross-motion for summary judgment by the

defendant, the supreme court reversed and remanded the cause, stating that

judgment could not be rendered for the defendant because the defendant did

not move for summary judgment.

797

D. Presumptions at Trial

A presumption at trial operates to establish a fact until rebutted.

798

must be rebutted with evidence to the contrary. In contrast, in summary

judgment procedure, a presumption does not shift the burden to the non-

movant.

799

The summary judgment movant must establish conclusively each

element of its claim.

800

In Chavez v. Kansas City Southern Railway,

801

the supreme court

addressed the distinction between a presumption at trial and presumptions in

summary judgment practice. Chavez involved a presumption that an attorney

retained for settlement has express authority to enter into a settlement

791. See Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex. 1993); Dall. Indep. Sch.

Dist. v. Finlan, 27 S.W.3d 220, 226 (Tex. App.—Dallas 2000, pet. denied).

792. City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 259 (Tex. 2018); City

of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); see infra Part 1.V (discussing

appealing a summary judgment).

793. BCCA Appeal Group, Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016).

794. Hall, 592 S.W.2d at 913–14.

795. Id. at 913.

796. Id.

797. Id. at 914; see Chevron, U.S.A., Inc. v. Simon, 813 S.W.2d 491, 491 (Tex. 1991) (per

curiam) (holding that the court of appeals erred in rendering judgment for a plaintiff who did not

file a cross-motion for summary judgment).

798. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 80–81 (Tex. 2000).

799. Chavez v. Kansas City S. Ry., 520 S.W.3d 898, 899–900 (Tex. 2017) (per curiam).

800. Id. at 901.

801. Id. at 900.

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agreement on behalf of the client.

802

The court rejected the application of the

presumption to the summary judgment procedure. Quoting Missouri-Kansas-

Texas Railroad Co. v. City of Dallas, the court reiterated fundamental

summary judgment law: “‘The burdens of proof and presumptions for an

ordinary or conventional trial,’ we said, ‘are immaterial to the burden that a

movant for summary judgment must bear.’”

803

Thus, the movant-defendant in Chavez, who was asserting that the

plaintiff’s attorney had authority to enter into a settlement agreement, had to

establish affirmatively there was no genuine issue of material fact that lawyer

was authorized to execute the settlement agreement.

804

The court reversed the

summary judgment decision because, although there was some evidence to

satisfy the defendant’s burden, the movant failed to conclusively establish

this element of its claim.

805

IV. RESPONDING TO AND OPPOSING A MOTION FOR SUMMARY

JUDGMENT

One of the most important developments in state summary judgment

procedure was the Texas Supreme Court’s 1979 decision in City of Houston

v. Clear Creek Basin Authority.

806

It greatly increased the need for non-

movants to respond to motions for summary judgment. In Clear Creek, the

supreme court held that “both the reasons for the summary judgment and the

objections to it must be in writing and before the trial judge at the hearing.”

807

In so holding, the court considered Rule 166a(c), which states in part: “Issues

not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.”

808

The

court also considered the 1978 addition to Rule 166a, which provides:

“Defects in the form of affidavits or attachments will not be grounds for

802. Id. The court assumed, without deciding, that the presumption is valid, noting the court

of appeals reliance on Ebner v. First Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.—Austin

2000, pet. denied).

803. Id.

804. Id.

805. Id. at 901.

806. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979).

807. Id. at 677; see also Cent. Educ. Agency v. Burke, 711 S.W.2d 7, 8–9 (Tex. 1986) (per

curiam) (reaffirming Clear Creek Basin Authority and holding that the court of appeals improperly

reversed summary judgment on grounds not properly before the court).

808. Clear Creek Basin Auth., 589 S.W.2d at 676 (emphasis added) (quoting TEX. R. CIV. P.

166a(c)); “‘Answer’ as used in the summary-judgment rule means an answer to the motion for

summary judgment, not an answer to the petition.” Reed v. Lake Country Prop. Owners Assoc.,

Inc., No. 02-17-00136-CV, 2017 WL 6759146, at *3 n.3 (Tex. App.—Fort Worth Dec, 28, 2017,

pet. denied) (mem. op) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in

Texas: State and Federal Practice, 52 HOUS. L. REV. 773, 876 (2015)).

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reversal unless specifically pointed out by objection by an opposing party

with opportunity, but refusal, to amend.”

809

The necessity for a response is more pronounced when the movant has

filed a proper no-evidence motion for summary judgment. If in its response,

the nonmovant fails to produce summary judgment evidence raising a

genuine issue of material fact, the court must grant the motion.

810

In other

words, if the motion meets the requirements for a no-evidence summary

judgment, the nonmovant must file a response.

811

A. Responding: General Principles

The nonmovant must expressly present to the trial court any reasons for

avoiding the movant’s right to a summary judgment.

812

In the absence of a

response raising such reasons, these matters may not be raised for the first

time on appeal.

813

This requirement applies even if the constitutionality of a

statute is being challenged.

814

Defendants are not required to guess what unpleaded claims might apply and

then negate them.

815

They are required only to meet the plaintiff’s case as

pleaded.

816

However, failure to object that an issue was raised for the first time in

a response will result in trying the issue by consent in the summary judgment

proceeding.

817

If the movant’s grounds are unclear or ambiguous, the nonmovant

should specially except and assert that the grounds relied upon by the movant

are unclear or ambiguous.

818

A critical feature of many responses is to object

to the other side’s summary judgment evidence and obtain a written ruling.

819

809. Clear Creek Basin Auth., 589 S.W.2d at 677 (quoting TEX. R. CIV. P. 166a(f)).

810. TEX. R. CIV. P. 166a(i).

811. Evans v. MIPTT, L.L.C., No. 01-06-00394-CV, 2007 WL 1716443, at *2 (Tex. App.—

Houston [1st Dist.] June 14, 2007, no pet.) (mem. op.) (citing Judge David Hittner & Lynne

Liberato, Summary Judgments in Texas, 34 HOUS. L. REV. 1303, 1356 (1998)).

812. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).

813. State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986) (per curiam);

Griggs v. Capitol Mach. Works, Inc., 701 S.W.2d 238, 238 (Tex. 1985) (per curiam); Mavex Mgmt.

Corp. v. Hines Dall. Hotel Ltd. P’ship, 379 S.W.3d 456, 462 (Tex. App.—Dallas 2012, no pet.).

814. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam) (holding

that the constitutionality of a city ordinance not raised in the trial court could not be considered on

appeal).

815. Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam).

816. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995).

817. Via Net, 211 S.W.3d at 313 (citing Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492,

495 (Tex. 1991)).

818. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342–43 (Tex. 1993) (stating

that the failure to specially except runs the risk of having the appellate court find another basis for

summary judgment in the vague motion); see supra Part 1.I.B.3.a (discussing special exceptions).

819. See supra Part 1.II.A.4 (discussing objections to evidence).

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A party who raises an affirmative defense in an attempt to defeat a

motion for summary judgment must either (1) present a disputed fact issue

on the opposing party’s failure to satisfy its own burden of proof, or (2)

establish at least the existence of a fact issue on each element of its

affirmative defense supported by summary judgment evidence.

820

B. Responding to a Traditional Motion for Summary Judgment

For a traditional motion for summary judgment, it is not necessary, in

theory, to file a response to a motion for summary judgment filed by a party

with the burden of proof.

821

Failure to file a response does not authorize

summary judgment by default.

822

Nonetheless, failing to file a response is not

lying behind a log, but laying down your arms. Once the movant with the

burden of proof has established the right to a summary judgment on the issues

presented, the burden shifts to the nonmovant to disprove or raise an issue of

material fact that would preclude summary judgment.

823

Even if the movant’s

summary judgment evidence is legally insufficient, the nonmovant who

receives a motion for summary judgment should always file a written

response.

824

C. Responding to a No-Evidence Summary Judgment Motion

Responding to a no-evidence summary judgment is virtually

mandatory.

825

A nonmovant must respond to a no-evidence summary

judgment motion by producing summary judgment evidence raising a

genuine issue of material fact.

826

If the nonmovant fails to file a response

and produce evidence, the nonmovant “is restricted to arguing on appeal

that the no-evidence summary judgment is insufficient as a matter of

820. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.–

Houston [1st Dist.] 2002, pet. denied).

821. TEX. R. CIV. P. 166a(c); see M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d

22, 23 (Tex. 2000) (per curiam).

822. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam); Rhône-Poulenc, Inc.

v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999); Cotton v. Ratholes, Inc., 699 S.W.2d 203, 205 (Tex.

1985) (per curiam) (reasoning that Clear Creek Basin Authority did not shift the burden of proof

and, thus, the trial court cannot grant summary judgment by default).

823. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015);

Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014).

824. See M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d at 23; Cove Invs., Inc. v. Manges,

602 S.W.2d 512, 514 (Tex. 1980).

825. Lee v. Palacios, No. 14-06-00428-CV, 2007 WL 2990277, at *1 (Tex. App.—Houston

[14th Dist.] Oct. 11, 2007, pet. denied) (mem. op.) (citing Judge David Hittner & Lynne Liberato,

Summary Judgments in Texas, 47 S. TEX. L. REV. 409, 488 (2006)).

826. TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

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law.”

827

The trial court is required to grant a no-evidence summary

judgment if the nonmovant produces no summary judgment evidence in

response to the summary judgment motion.

828

The nonmovant must

present evidence raising a genuine issue of material fact supporting each

element contested in the motion.

829

The same principles used to evaluate

the evidence for a directed verdict

830

or for the “no-evidence” standard

applied to a jury verdict are used to evaluate the evidence presented in

response to a no-evidence summary judgment.

831

The nonmovant raises a

genuine issue of material fact by producing “more than a scintilla of

evidence” establishing the challenged elements’ existence and may use

both direct and circumstantial evidence in doing so.

832

More than a

scintilla exists when the evidence is such that it “would enable reasonable

and fair-minded people to differ in their conclusions.”

833

Appellate courts

“review the evidence presented . . . 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.”

834

The same summary judgment law applies to evaluate evidence

presented in response to a no-evidence summary judgment. Also, the

presumption applies equally for no-evidence and traditional motions for

summary judgment that evidence favorable to the nonmovant will be taken

as true, every reasonable inference will be indulged in favor of the

nonmovant, and any doubts will be resolved in the nonmovant’s favor.

835

827. Viasana v. Ward County, 296 S.W.3d 652, 654–55 (Tex. App.—El Paso 2009, no pet.);

see also Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2003,

no pet.).

828. Gallien v. Goose Creek Consol. Indep. Sch. Dist., No. 14-11-00938-CV, 2013 WL

1141953, at *3 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. denied) (mem. op.) (citing

Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 47 S. TEX. L. REV. 409, 488

(2006)); Watson v. Frost Nat’l Bank, 139 S.W.3d 118, 119 (Tex. App.—Texarkana 2004, no pet.).

829. TEX. R. CIV. P. 166a(i); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (2015); Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006).

830. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

831. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003); see Universal Servs.

Co. v. Ung, 904 S.W.2d 638, 640–42 (Tex. 1995) (holding that the court of appeals erred by failing

to reverse the trial court’s judgment on jury verdict because there was no evidence to support it);

W. Wendell Hall, O.Rey Rodriguez, Rosemarie Kanusky & Mark Emery, Hall’s Standards of

Review in Texas, 42 ST. MARY’S L.J. 2, 157–58 (2010-11) (discussing the no-evidence standard of

review).

832. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600–01 (Tex. 2004).

833. Id. at 601 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)).

834. Timpte Indus., Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc., 206 S.W.3d at 582);

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

835. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

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The comment to Rule 166a(i) provides: “To defeat a motion made under

paragraph (i), the [nonmovant] is not required to marshal its proof; its

response need only point out evidence that raises a fact issue on the

challenged elements.”

836

“To marshal one’s evidence is to arrange all of the

evidence in the order that it will be presented at trial.”

837

A party is not

required to present or arrange all of its evidence in response to a summary

judgment motion; its response need only point out evidence that raises a fact

issue on the challenged elements.

838

Determining how much evidence is

sufficient to defeat a no-evidence summary judgment may involve significant

strategic decisions. However, “Rule 166a(i) explicitly provides that, in

response to a no-evidence summary judgment motion, the [nonmovant] must

present some summary judgment evidence raising a genuine issue of material

fact on the element attacked, or the motion must be granted.”

839

Appellate

courts review a no-evidence summary judgment for evidence that would

enable reasonable and fair-minded jurors to differ in their conclusions.

840

The evidence presented by the nonmovant must qualify as “summary

judgment evidence,” which is evidence that meets the technical requirements for

summary judgment proof.

841

The nonmovant’s evidence in response may be

deposition excerpts, affidavits, the opponent’s answers to interrogatories and

requests for admissions, stipulations, certified public records, authenticated

documents, and/or other evidence that cases hold is proper summary judgment

evidence.

842

Nonsummary judgment evidence, such as unsworn witness

statements, experts’ reports, or unauthenticated documents (except those

produced by the opposing party), is not proper summary judgment evidence and

cannot defeat a no-evidence summary judgment motion.

843

A nonmovant may respond with a nonsuit even after a hearing on a no-

evidence motion for summary judgment, so long as the trial court has not

ruled on the motion for summary judgment.

844

836. TEX. R. CIV. P. 166a cmt.—1997; accord Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d

193, 207 (Tex. 2002).

837. In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998, no pet.).

838. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).

839. In re Mohawk Rubber Co., 982 S.W.2d at 498.

840. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005)).

841. TEX. R. CIV. P. 166a(i).

842. See Llopa, Inc. v. Nagel, 956 S.W.2d 82, 86–88 (Tex. App.—San Antonio 1997, writ

denied); see supra Part 1.II (discussing summary judgment evidence).

843. See Llopa, Inc., 956 S.W.2d at 87.

844. Pace Concerts, Ltd. v. Resendez, 72 S.W.3d 700, 702 (Tex. App.—San Antonio 2002,

pet. denied).

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D. Inadequate Responses

Neither the trial court nor the appellate court has the duty to sift through

the summary judgment record to see if there are other issues of law or fact

that could have been raised by the nonmovant, but were not.

845

For example,

a response that merely asserts that depositions on file and other exhibits

“effectively illustrate the presence of contested material fact[s]” will not

preclude summary judgment.

846

Further, a motion for summary judgment is

not defeated by the presence of an immaterial fact issue,

847

nor does suspicion

raise a question of fact.

848

Generally, an amended answer by itself will not

suffice as a response to a motion for summary judgment.

849

Absent a written response to a motion for summary judgment, prior

pleadings raising laches and the statute of limitations are insufficient to

preserve those issues for appeal.

850

An attempt to raise a genuine issue of

material fact on each element of an affirmative defense for the first time on

appeal is “too little, too late.”

851

845. Walton v. City of Midland, 24 S.W.3d 853, 858 (Tex. App.—El Paso 2000, no pet.),

abrogated on other grounds by In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex. App.—El Paso

2003, no pet.); Holmes v. Dall. Int’l Bank, 718 S.W.2d 59, 60 (Tex. App.—Dallas 1986, writ ref’d

n.r.e.); Wooldridge v. Groos Nat’l Bank, 603 S.W.2d 335, 344 (Tex. Civ. App.—Waco 1980, no

writ); see also Lee v. Palacios, No. 14-06-00428-CV, 2007 WL 2990277, at *2 (Tex. App.—

Houston [14th Dist.] Oct. 11, 2007, pet. denied) (mem. op.).

846. I.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex. App.—Houston [1st Dist.]

1982, no writ) (quoting the defendants’ response to the motion for summary judgment).

847. Marshall v. Sackett, 907 S.W.2d 925, 936 (Tex. App.—Houston [1st Dist.] 1995, no writ);

Austin v. Hale, 711 S.W.2d 64, 68 (Tex. App.—Waco 1986, no writ); Borg-Warner Acceptance

Corp. v. C.I.T. Corp., 679 S.W.2d 140, 144 (Tex. App.—Amarillo 1984, writ ref’d n.r.e.).

848. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 (Tex. 2002).

849. Hitchcock v. Garvin, 738 S.W.2d 34, 36 (Tex. App.—Dallas 1987, no writ); Meineke

Disc. Muffler Shops, Inc. v. Coldwell Banker Prop. Mgmt. Co., 635 S.W.2d 135, 137 (Tex. App.—

Houston [1st Dist.] 1982, writ ref’d n.r.e.).

850. See Johnson v. Levy, 725 S.W.2d 473, 476–77 (Tex. App.—Houston [1st Dist.] 1987, no

writ) (“Where the non-movant fails to respond [to the movant’s motion for summary judgment], the

sole issue on appeal is whether the movant’s summary judgment proof was sufficient as a matter of

law.”); Barnett v. Houston Natural Gas Co., 617 S.W.2d 305, 306 (Tex. Civ. App.—El Paso 1981,

writ ref’d n.r.e.) (noting that when the nonmovant files no response to a motion for summary

judgment, only the legal sufficiency of the grounds expressly raised by the movant’s motion can be

attacked on appeal); Fisher v. Capp, 597 S.W.2d 393, 396–97 (Tex. Civ. App.—Amarillo 1980,

writ ref’d n.r.e.).

851. Reed v. Lake Country Prop. Owners Assoc., Inc., No. 02-17-00136-CV, 2017 WL

6759146, at *3 (Tex. App.—Fort Worth Dec, 28, 2017, pet. denied) (citing Judge David Hittner &

Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 53 HOUS. L. REV. 773,

876 (2015)).

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V. APPEALING SUMMARY JUDGMENTS

Summary judgments are frequently appealed.

852

Generally, an order

granting a summary judgment is appealable; an order denying a summary

judgment is not.

853

Interlocutory orders are not appealable unless explicitly

made so by statute.

854

The denial of a no-evidence summary judgment under

Texas Rule of Civil Procedure 166a(i), is no more reviewable by appeal or

mandamus than the denial of other motions for summary judgment.

855

Thus,

the general rule is that they are not appealable.

856

The exceptions are as

follows: (1) when both parties file a motion for summary judgment and one

is granted;

857

(2) when the denial of a summary judgment is based on official

immunity;

858

(3) when the denial is of a media defendant’s motion for

summary judgment in a defamation case;

859

(4) when the denial is of a

summary judgment motion filed by an electric utility regarding liability in a

suit subject to Section 75.022 of the Texas Civil Practice and Remedies

Code;

860

and (5) for a permissive appeal when the court of appeals agrees to

accept a case.

861

A. Exception: Both Parties File Motions for Summary Judgment

An exception to the rule that an order denying a summary judgment is not

appealable arises when both parties file motions for summary judgment, and the

court grants one of the motions and overrules the other.

862

When both parties file

852. Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 48

HOUS. L. REV. 993, 1009 (2012) [hereinafter Liberato & Rutter, 2012 Study]; Lynne Liberato &

Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 44 S. TEX. L. REV. 431, 445

(2003) [hereinafter Liberato & Rutter, 2003 Study].

853. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980) (explaining that the denial of a

motion for summary judgment is not a final order and thus not appealable); Huffines v. Swor Sand

& Gravel Co., 750 S.W.2d 38, 41 (Tex. App.—Fort Worth 1988, no writ).

854. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998) (per curiam); William Marsh Rice

Univ. v. Coleman, 291 S.W.3d 43, 45 (Tex. App.—Houston [14th Dist.] 2009, pet. dism’d); see

generally Elizabeth Lee Thompson, Interlocutory Appeals in Texas: A History, 48 ST. MARY’S L.J.

65 (2016).

855. TEX. R. CIV. P. 166a cmt.—1997.

856. Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697, 700 (Tex. App.—Corpus Christi

2000, no pet.).

857. See infra Part 1.V.A (discussing appeals when both parties file motions for summary

judgment).

858. See infra Part 1.V.B (discussing appeals in sovereign immunity cases).

859. See infra Part 1.V.B (discussing appeals in media defamation cases).

860. See infra Part 1.V.B (discussing appeals in electric utility cases).

861. See infra Part 1.V.C (discussing permissive appeals).

862. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.

2007); Tobin v. Garcia, 316 S.W.2d 396, 400 (Tex. 1958) (overruling Rogers v. Royalty Pooling

Co., 302 S.W.2d 938 (Tex. 1957), which held only the granted motion could be appealed in this

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motions for summary judgment and one is granted and the other overruled, the

appellate court considers the summary judgment evidence presented by both

sides, determines all questions presented, and if the appellate court determines

that the trial court erred, renders the judgment the trial court should have

rendered.

863

A party appealing the denial of a summary judgment, however, must

properly preserve this issue on appeal by raising the failure to grant the motion

in the brief.

864

On appeal, the appellate court should render judgment on the

motion that should have been granted.

865

However, before a court of appeals may

reverse a summary judgment for the other party, both parties must ordinarily

have sought final relief in their cross-motions for summary judgment.

866

In Cincinnati Life Insurance Co. v. Cates, the supreme court expanded the

ability of the courts of appeals to consider denials of summary judgment

motions.

867

In that case, the court directed courts of appeals to consider all

summary judgment grounds the trial court rules on, including those on which it

denied the summary judgment, and allowed the courts of appeals to consider

grounds which were urged and preserved for review but on which the court did

not rule.

868

Even if both parties appeal cross-motions for summary judgment, if

the appellate court reverses one, it does not necessarily grant the other. If

neither party is entitled to summary judgment, the appellate court must

remand to the trial court.

869

On appeal, the party appealing the denial of the motion for summary

judgment must properly preserve this error by raising as a point of error or

issue presented the failure of the trial court to grant the appellant’s motion.

870

scenario); see supra Part 1.III.C (discussing burden of proof when both parties move for summary

judgment).

863. BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016); Merriman v.

XTO Energy, Inc., 407 S.W. 3d 244, 248 (Tex. 2013); FDIC v. Lenk, 361 S.W.3d 602, 611 (Tex.

2012); Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex.

2010); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Bradley v. State ex rel.

White, 990 S.W.2d 245, 247 (Tex. 1999).

864. Truck Ins. Exch. v. E.H. Martin, Inc., 876 S.W.2d 200, 203 (Tex. App.—Waco 1994, writ

denied) (citing Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 35 S. TEX. L.

REV. 9, 46 (1994)); Buckner Glass & Mirror Inc. v. T.A. Pritchard Co., 697 S.W.2d 712, 714–15

(Tex. App.—Corpus Christi 1985, no writ).

865. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex. 1984); Cadle Co.

v. Butler, 951 S.W.2d 901, 905 (Tex. App.—Corpus Christi 1997, no writ).

866. CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (per curiam).

867. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625–26 (Tex. 1996).

868. Id. at 627.

869. See Baywood Estates Prop. Owners Ass’n. v. Caolo, 392 S.W.3d 776, 785 (Tex. App.—

Tyler 2012, no pet.); Emp’rs Reinsurance Corp. v. Gordon, 209 S.W.3d 913, 917 (Tex. App.—

Texarkana 2006, no pet.).

870. Truck Ins. Exch. v. E.H. Martin, Inc., 876 S.W.2d 200, 203 (Tex. App.—Waco 1994, writ

denied); see also Buckner Glass & Mirror Inc. v. T.A. Pritchard Co., 697 S.W.2d 712, 714 (Tex.

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If the appellant complains only that the trial court erred in granting the other

side’s motion for summary judgment and fails to complain that the court

denied its own motions, it fails to preserve error on this issue and, if the

appellate court reverses, it cannot render but can only remand the entire

case.

871

The appeal should be taken from the summary judgment granted.

872

Adams v. Parker Square Bank, both parties moved for summary judgment.

873

The appellant limited his appeal to the denial of his own summary judgment,

rather than appealing from the granting of his opponent’s summary

judgment.

874

The court held that the appellant should have appealed from the

order granting appellee’s motion for summary judgment because an appeal

does not lie solely from an order overruling a motion for summary

judgment.

875

In the absence of cross-motions for summary judgment, an appellate

court may not reverse an improperly granted summary judgment and render

summary judgment for the nonmoving party.

876

Cross-motions should be

considered by the responding party, when appropriate, to secure on appeal a

final resolution of the entire case (i.e., “reversed and rendered” rather than

“reversed and remanded”).

877

B. Exceptions: Governmental Immunity; Media Defendants; Electric

Utilities

Exceptions to the rule that denials of motions for summary judgment are

not appealable are found in the statutes.

Governmental immunity: The Texas Civil Practice and Remedies

Code authorizes the appeal of an order denying a summary judgment in

immunity cases. Section 51.014(a)(5) provides:

App.—Corpus Christi 1985, no writ); Holmquist v. Occidental Life Ins. Co. of Cal., 536 S.W.2d

434, 438 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.).

871. Henderson v. Nitschke, 470 S.W.2d 410, 414–15 (Tex. Civ. App.—Eastland 1971, writ

ref’d n.r.e.).

872. Adams v. Parker Square Bank, 610 S.W.2d 250, 250–51 (Tex. Civ. App.—Fort Worth

1980, no writ); see infra Part 1.V.A (discussing an exception to appealability of denial of summary

judgment when both sides file motions for summary judgment).

873. Adams, 610 S.W.2d at 250.

874. Id.

875. Id. at 250–51.

876. Herald-Post Publ’g Co. v. Hill, 891 S.W.2d 638, 640 (Tex. 1994) (per curiam); CRA, Inc.

v. Bullock, 615 S.W.2d 175, 176 (Tex. 1981) (per curiam); City of W. Tawakoni v. Williams, 742

S.W.2d 489, 495 (Tex. App.—Dallas 1987, writ denied).

877. See Hall v. Mockingbird AMC/Jeep, Inc., 592 S.W.2d 913, 913–14 (Tex. 1979) (per

curiam); see also Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 2–3, 5–6, 8 (Tex. 2014)

(affirming the appellate court’s reversal and rendering of a cross-motion for summary judgment in

a case involving the interpretation of the Texas Property Code’s deficiency judgment statute).

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(a) A person may appeal from an interlocutory order of a district court,

county court at law, statutory probate court, or county court that:

. . .

(5) denies a motion for summary judgment that is based on an assertion

of immunity by an individual who is an officer or employee of the state

or a political subdivision of the state.

878

This section permits interlocutory appeals filed by individual governmental

employees.

879

“Immunity” as used in this section refers to “official immunity.”

880

Official immunity is an affirmative defense rendering individual officials

immune from liability.

881

In such an interlocutory appeal, the appellate court will

only consider those portions of the defendant’s motion for summary judgment

that relate to “official or quasi-judicial” immunity.

882

If a governmental entity

contends only that it is not liable because of sovereign immunity, no appeal may

be taken from the denial of a summary judgment.

883

A governmental unit’s

motion for summary judgment challenging a trial court’s subject matter

jurisdiction is appealable under Section 51.014(a)(8) even though the section

refers only to appeals from an order granting or denying a “plea” to the

jurisdiction.

884

The supreme court may also exercise its jurisdiction to consider

whether the court of appeals had interlocutory jurisdiction.

885

Media Defendants: The Texas Civil Practice and Remedies Code also

allows an appeal from a denial of a summary judgment based on a claim

against the media arising under the free speech or free press clauses of the

U.S. or Texas constitutions.

886

“[S]ummary judgment is reviewed in public

figure or public official defamation cases under the same standard as in other

878. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (West Supp. 2017). See McIntyre v.

El Paso Indep. Sch. Dist., 499 S.W.3d 820, 822 (Tex. 2016); William Marsh Rice Univ. v. Refaey,

459 S.W.3d 590, 591 (Tex. 2015).

879. Id.; see, e.g., Stinson v. Fontenot, 435 S.W.3d 793, 793–94 (Tex. 2014) (per curiam);

Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011).

880. City of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993) (per curiam); Baylor

Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

881. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994).

882. Aldridge v. De Los Santos, 878 S.W.2d 288, 294 (Tex. App.—Corpus Christi 1994, writ

dism’d w.o.j.).

883. See Kilburn, 849 S.W.2d at 811–12 (discussing interlocutory appeals from an order

denying a motion for summary judgment based on the assertion of qualified immunity).

884. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2017); Thomas v. Long, 207

S.W.3d 334, 339 (Tex. 2006).

885. City of Houston v. Estate of Jones, 388 S.W.3d 663, 664 n.1 (Tex. 2012) (per curiam);

see Klein v. Hernandez, 315 S.W.3d 1, 4 (Tex. 2010).

886. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (West 2017); see Freedom

Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam); Huckabee v. Time

Warner Entm’t Co., 19 S.W.3d 413, 419–20 (Tex. 2000); Rogers v. Cassidy, 946 S.W.2d 439, 443

(Tex. App.—Corpus Christi 1997, no writ).

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cases.”

887

This rule does not confer jurisdiction on the appellate court to

consider a libel plaintiff’s cross-point of error.

888

An appeal in a media

defendant summary judgment case does not necessarily stay the trial court

proceedings.

889

Despite the fact that it is an appeal from an interlocutory order, which is

usually final at the court of appeals, the legislature has given the supreme court

a specific grant of jurisdiction over an order that:

denies a motion for summary judgment that is based in whole or in part

upon a claim against or defense by a member of the electronic or print

media, acting in such capacity, or a person whose communication

appears in or is published by the electronic or print media, arising

under the free speech or free press clause of the First Amendment to

the United States Constitution, or Article I, Section 8, of the Texas

Constitution, or Chapter 73.

890

Electric Utilities: Another statute that authorizes an appeal of a

denial of a summary judgment is found in Texas Civil Practice and

Remedies Code. It permits an electric utility to appeal a denial of a motion

for summary judgment in a suit concerning the utility’s potential liability

for personal injuries sustained on land owned, occupied, or leased by the

utility.

891

This narrow avenue of appeal was implemented following the

2013 Texas Legislative Session.

892

C. Exception: Permissive Appeal

An appellate court may accept jurisdiction over an interlocutory order if

both the trial court and the appellate court agree.

893

These appeals are referred to

as “permissive” appeals.

894

Under the previous version of the statute, the parties

had to agree to the interlocutory appeal. The new version no longer requires such

887. Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.—Austin 2007,

pet. denied) (citing Huckabee, 19 S.W.3d at 423).

888. Evans v. Dolcefino, 986 S.W.2d 69, 75 (Tex. App.—Houston [1st Dist.] 1999, no pet.),

disapproved of on other grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000).

889. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West 2017) (providing for stays in

interlocutory appeals under other exceptions, but not defamation).

890. Id. § 51.014(a)(6); McIntyre v. El Paso Indep. Sch. Dist., 499 S.W.3d 820 (Tex. 2016)

891. Id. § 51.014(a)(12).

892. Id.

893. Id. § 51.014(d), (f); see TEX. R. CIV. P. 168 (requiring the district to state its

“[p]ermission . . . in the order to be appealed”); TEX. R. APP. P. 28.3(a) (“When a trial court has

permitted an appeal from an interlocutory order that would not otherwise be appealable, a party

seeking to appeal must petition the court of appeals for permission to appeal.”).

894. Lynne Liberato & William Feldman, How To Seek Permissive Interlocutory Appeals in

State Court, APP. ADVOC. (STATE BAR APPELLATE SECTION REPORT), Vol. 26, No. 2 (Winter

2014).

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agreement by the nonmovant.

895

To be entitled to a permissive appeal under

Section 51.014(d), a party must establish that: “(1) the order to be appealed

involves a controlling question of law as to which there is a substantial ground

for difference of opinion; and (2) an immediate appeal from the order may

materially advance the ultimate termination of the litigation.”

896

This procedure may be useful in a summary judgment context when the

parties seek resolution of a determinative issue in a case.

897

For example, in Jose

Carreras, M.D., P.A. v. Marroquin, the supreme court considered an issue of

statutory construction as a result of a permissive appeal from the denial of a

motion for summary judgment.

898

The court determined that a plaintiff seeking

to toll the statute of limitations in a health care liability case must provide not

only pre-suit notice but also the required medical authorization form.

899

D. Finality of Judgment

As a general rule, an appeal may be prosecuted only from a final

judgment.

900

Generally, to be final, a judgment must dispose of all parties and

895. See also, e.g., Bank of N.Y. Mellon v. Guzman, 390 S.W.3d 593, 596 (Tex. App.—Dallas

2012) (“Pursuant to former section 51.014(d) of the civil practice and remedies code, a district court

may order an interlocutory appeal from an otherwise unappealable order in a civil action if the

parties agree that the order involves a controlling question of law as to which there is a substantial

ground for difference of opinion, an immediate appeal from the order may materially advance the

ultimate termination of the litigation, and the parties agree to the order.”). Compare TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(d) (West 2008) (“A district court . . . may issue a written order for

interlocutory appeal in a civil action not otherwise appealable under this section if: (1) the parties

agree that the order involves a controlling question of law as to which there is a substantial ground

for difference of opinion; (2) an immediate appeal from the order may materially advance the

ultimate termination of the litigation; and (3) the parties agree to the order.”), with TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(d) (West 2013) (omitting the requirement that “the parties agree to

the order”).

896. TEX. CIV. PRAC. & REM. CODE Ann. § 51.014(d) (West 2017); TEX. R. APP. P. 28.3(e)(4);

see also TEX. R. CIV. P. 168 (stating that district court’s permission to appeal must be included in

the order and “must identify the controlling question of law as to which there is a substantial ground

for difference of opinion, and must state why an immediate appeal may materially advance the

ultimate termination of the litigation”); Molinet v. Kimbrell, 356 S.W.3d 407, 409 (Tex. 2011).

897. See Diamond Prods. Int’l, Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston

[14th Dist.] 2004, no pet.) (“[P]ermissive appeals should be reserved for determination of

controlling legal issues necessary to the resolution of the case.”). See generally Lynne Liberato &

Will Feldman, How to Seek Permissive Interlocutory Appeals in State Court, 26 APP. ADVOC., 287

(2013); Warren W. Harris & Lynne Liberato, State Court Jurisdiction Expanded to Allow for

Permissive Appeals, 65 TEX. B.J. 31, 31 (2002).

898. Carreras v. Marroquin, 339 S.W.3d 68, 69–71 (Tex. 2011); see also TIC Energy & Chem.,

Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016).

899. Carreras, 399 S.W.3d at 74.

900. De Los Santos v. Occidental Chem. Corp., 925 S.W.2d 62, 64 (Tex. App.—Corpus

Christi), rev’d on other grounds, 933 S.W.2d 493 (Tex. 1996) (per curiam); Tingley v. Nw. Nat’l

Ins. Co. of Milwaukee, Wis., 712 S.W.2d 649, 650 (Tex. App.—Austin 1986, no writ) (per curiam).

But see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(1)–(12) (providing twelve exceptions to

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issues in the case.

901

In North East Independent School District v. Aldridge,

the Texas Supreme Court articulated the following presumption of finality

rule:

When a judgment, not intrinsically interlocutory in character, is

rendered and entered in a case regularly set for a conventional trial on

the merits, . . . it will be presumed for appeal purposes that the Court

intended to, and did, dispose of all parties legally before it and of all

issues made by the pleadings between such parties.

902

The rule applicable to summary judgments is different. There is no

presumption of finality rule, as discussed in Aldridge, that applies to

summary judgment cases.

903

If a summary judgment does not dispose of all

parties and issues in the pending suit, it is interlocutory and not appealable

unless the trial court orders a severance of that phase of the case.

904

In the

absence of an order of severance, a party against whom an interlocutory

summary judgment has been rendered does not have a right of appeal until

the partial judgment is merged into a final judgment, disposing of the whole

case.

905

On appeal, a partial summary judgment incorporated into a final

judgment is reviewed under the applicable summary judgment standard of

review.

906

In Lehmann v. Har-Con Corp., the Texas Supreme Court modified the

procedure for determining whether a judgment is final.

907

That earlier procedure,

which had caused a great deal of confusion, had been set out in Mafrige v.

the final judgment rule); supra Part 1.V.A–C (discussing exceptions to general rule that appeals

may only be taken following final judgment).

901. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (per curiam); N.E. Indep.

Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); De Los Santos, 925 S.W.2d at 64; cf. John

v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (per curiam) (holding presumption

that a judgment rendered after a conventional trial is final was not rebutted because the plaintiff

tried his case only against certain defendants, expecting settlement with the others, which did not

come to fruition).

902. N.E. Indep. Sch. Dist., 400 S.W.2d at 897–98.

903. Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986)

(per curiam).

904. See Wheeler v. Yettie Kersting Mem’l Hosp., 761 S.W.2d 785, 787 (Tex. App.—Houston

[1st Dist.] 1988, writ denied). Texas Rule of Civil Procedure 41 provides that “[a]ny claim against

a party may be severed and proceeded with separately.” TEX. R. CIV. P. 41. “A claim may be

properly severed if it is part of a controversy which involves more than one cause of action, and the

trial judge is given broad discretion in the manner of severance . . . .” Cherokee Water Co. v.

Forderhause, 641 S.W.2d 522, 525 (Tex. 1982); see, e.g., Wausau Underwriters Ins. Co. v. Wedel,

557 S.W.3d 554, 555 (Tex. 2018).

905. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Mafrige v.

Ross, 866 S.W.2d 590, 591 (Tex. 1993), overruled on other grounds by Lehmann v. Har-Con Corp.,

39 S.W.3d 191 (Tex. 2001); see also supra Part 1.I.K (discussing partial summary judgments).

906. See, e.g., Pantaze v. Yudin, 229 S.W.3d 548, 550–51 (Tex. App.—Dallas 2007, pet.

dism’d w.o.j.). See also Part 1.V.E. (Appealing a Summary Judgment/Finality of Judgment).

907. Lehmann, 39 S.W.3d at 192–93.

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Ross.

908

Under Mafrige, the “Mother Hubbard” provision in a judgment order,

stating “all relief not expressly granted [herein] is denied,” was sufficient to make

an otherwise partial summary judgment final and appealable.

909

If the judgment

granted more relief than requested, it was reversed and remanded but not

dismissed.

910

Thus, if the summary judgment on claims raised in the motion was

proper, the court of appeals was to affirm the judgment of the trial court in part

and reverse in part because only a partial summary judgment should have been

rendered.

911

The court of appeals was then to remand the case to the trial court

for further proceedings.

912

This process caused considerable confusion and

sometimes led to unjust results.

In Lehmann, the supreme court overruled Mafrige to the extent it states

that “Mother Hubbard” clauses indicate “that a judgment rendered without a

conventional trial is final for purposes of appeal.”

913

The court of appeals

looks to the record in the case to determine whether an order disposes of all

pending claims and parties.

914

“When a trial court grants more relief than

requested and, therefore, makes an otherwise partial summary judgment

final, that judgment, although erroneous, is final and appealable.”

915

Lehman, the Texas Supreme Court also suggested the following language in

a judgment to clearly show the trial court’s intention that the judgment be

final and appealable: “This judgment finally disposes of all parties and all

claims and is appealable.”

916

Nonetheless, there is no magic language

required to determine whether a judgment is final. Instead, finality is

determined from the language and record.

917

The court also noted that an

order “must be read in light of the importance of preserving a party’s right to

appeal.”

918

It expressly provided that the appellate court could abate the

appeal to permit clarification by the trial court if it is uncertain about the

908. Mafrige, 866 S.W.2d at 590–92.

909. Id. at 590 n.1, 592.

910. Id. at 592.

911. See id.

912. Id.

913. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203–04 (Tex. 2001); see also Braeswood

Harbor Partners v. Harris Cty. Appraisal Dist., 69 S.W.3d 251, 252 (Tex. App.—Houston [1st Dist.]

2002, no pet.).

914. Lehmann, 39 S.W.3d at 205–06; see also Nash v. Harris County, 63 S.W.3d 415, 415–16

(Tex. 2001) (per curiam) (examining complaint, docket sheet, and orders to determine that summary

judgment had been granted to individual defendants but not institutional defendants).

915. G & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex. 2011) (per curiam).

916. Lehmann, 39 S.W.3d at 206.

917. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830–31

(Tex. 2005); Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d 277, 279 (Tex. App.—Houston

[1st Dist.] 2004, no pet.) (“A judgment that actually disposes of all parties and all claims is final,

regardless of its language.”).

918. Lehmann, 39 S.W.3d at 206.

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intent of the order.

919

This ruling is consistent with the supreme court’s

philosophy that form should not be elevated over substance.

Relying on Lehmann, the supreme court remanded a case in which a

judgment had not disposed of a claim for attorney’s fees, but had awarded

costs.

920

The court held that the summary judgment was not final because a

party could move for a partial summary judgment and there is no presumption

that a motion for summary judgment addresses all of the movant’s claims.

921

It also noted that awarding costs did not make a judgment final.

922

Mother Hubbard clauses do not implicitly dispose of claims that have

not been expressly mentioned in the summary judgment motion. In Farm

Bureau County Mutual Insurance Co. v. Rogers,

923

the supreme court refused

to presume that the trial court considered the issue of attorney’s fees when

the movant had failed to request an award of attorney’s fees in its motion or

to attach evidence supporting its claim for fees. The court held that there must

be evidence in the record to prove the trial court’s intent to dispose of any

remaining issues when it includes a Mother Hubbard clause in an order

denying summary judgment.

924

Accordingly, the judgment did not dispose of

all parties and claims and was not final.

925

A defendant (or plaintiff on an affirmative defense) is not entitled to

summary judgment on the entire case unless the defendant files a summary

judgment that challenges the evidentiary support for every theory of liability

alleged.

926

Thus, “the motion for summary judgment . . . must be analyzed in

light of the pleadings to ensure that the motion effectively defeats every cause

of action raised in the petition.”

927

The summary judgment order, however,

need not itemize each element of damages pleaded nor must it break down

that ruling for each element of duty, breach, and causation.

928

To complain

on appeal about the failure of the motion for summary judgment to address

all causes of action alleged, the nonmovant appellant should specifically

assign that failure as error.

929

The fact that an unserved defendant is not

disposed of by the order granting summary judgment does not mean that the

order is interlocutory and not appealable.

930

If an examination of the record

919. Id.

920. McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam).

921. Id.; see Lehmann, 39 S.W.3d at 203–05.

922. McNally, 52 S.W.3d at 196.

923. 455 S.W.3d 161, 163–65 (Tex. 2015).

924. Id. at 164.

925. Id.

926. See Yancy v. City of Tyler, 836 S.W.2d 337, 341 (Tex. App.—Tyler 1992, writ denied).

927. Id.

928. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007) (per curiam).

929. Uribe v. Houston Gen. Ins. Co., 849 S.W.2d 447, 450 n.3 (Tex. App.—San Antonio 1993,

no writ).

930. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674–75 (Tex. 2004) (per curiam).

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establishes that the plaintiff did not expect to serve the unserved defendant

and all parties appear to have treated the order as final, then the summary

judgment is final for purposes of appeal.

931

The failure of a party to file a

cross-motion for summary judgment does not preclude entry of a final

judgment.

932

Determining whether a summary judgment is final may especially be a

problem with multi-party litigation.

933

A summary judgment granted for one

defendant is final even though it does not specifically incorporate a previous

partial summary judgment granted in favor of the only other defendant.

934

Upon nonsuit of any remaining claims, an interlocutory summary judgment

order instantly becomes final and appealable.

935

Additionally, failure to dispose of or sever a counterclaim results in an

interlocutory partial summary judgment, and thus, an appeal from such

judgment is not proper.

936

An order granting summary judgment for one

claim, but not referring to issues presented in a counterclaim, is an

interlocutory judgment.

937

By assuming jurisdiction over a summary

judgment that fails to dispose of a counterclaim, the court of appeals commits

fundamental error.

938

The supreme court will notice and correct such error

even though neither party asserts it.

939

However, relying on Lehmann, the

Fort Worth Court of Appeals determined that the trial court implicitly denied

the appellant’s breach of contract counterclaim, which directly conflicted

with the trial court’s declaratory judgment ruling that the appellees had not

breached the contract.

940

931. Id. at 674.

932. Farm Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161 (Tex. 2015).

933. See, e.g., Schlipf v. Exxon Corp., 644 S.W.2d 453, 454–55 (Tex. 1982) (per curiam)

(affirming properly granted summary judgment in a suit involving multiple plaintiffs, defendants,

and intervenors).

934. See Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex. 1998) (per curiam)

(holding that a party with a prior partial summary judgment has a right to appeal that summary

judgment when the remainder of the case is disposed of); Ramones v. Bratteng, 768 S.W.2d 343,

344 (Tex. App.—Houston [1st Dist.] 1989, writ denied).

935. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).

936. Tingley v. Nw. Nat’l Ins. Co., 712 S.W.2d 649, 650 (Tex. App.—Austin 1986, no writ)

(per curiam).

937. Chase Manhattan Bank, N.A. v. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990) (per curiam).

938. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam).

939. Id.

940. Karen Corp. v. Burlington N. & Santa Fe Ry., 107 S.W.3d 118, 125 (Tex. App.—Fort

Worth 2003, pet. denied).

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The filing of a cross-action does not, in and of itself, preclude the trial

court from granting a summary judgment on all or part of another party’s

case.

941

A severance would be appropriate in such an instance.

942

While a severance frequently will be the appropriate method to convert an

interlocutory summary judgment into a final appealable summary judgment,

severance may not always be proper.

For a severance to be proper, more than one cause of action must be

involved in the controversy, the severed cause must be one that can be

asserted independently, and the severed action must not be so

interwoven with the remaining action that they involve identical facts

and issues or, in certain instances, relate to the same subject matter.

943

For appeals from probate orders, the supreme court has set out a specific

test for finality in probate appeals:

If there is an express statute, such as the one for the complete heirship

judgment, declaring the phase of the probate proceedings to be final

and appealable, that statute controls. Otherwise, if there is a proceeding

of which the order in question may logically be considered a part, but

one or more pleadings also part of that proceeding raise issues or

parties not disposed of, then the probate order is interlocutory. For

appellate purposes, it may be made final by a severance order, if it

meets the severance criteria . . . . In setting this standard, we are

mindful of our policy to avoid constructions that defeat bona fide

attempts to appeal.

944

E. Appellate Standard of Review

The propriety of a summary judgment is a question of law.

945

Thus

appellate review is de novo.

946

In an appeal from a trial on the merits, the standard

941. C.S.R., Inc. v. Mobile Crane, Inc., 671 S.W.2d 638, 643 (Tex. App.—Corpus Christi

1984, no writ).

942. See Waite v. BancTexas-Houston, N.A., 792 S.W.2d 538, 542 (Tex. App.—Houston [1st

Dist.] 1990, no writ) (affirming severance of cross-claims after summary judgment granted for

plaintiff); C.S.R., Inc., 671 S.W.2d at 643–44 (same).

943. Weaver v. Jock, 717 S.W.2d 654, 662 (Tex. App.—Waco 1986, writ ref’d n.r.e.); accord

Nicor Exploration Co. v. Fla. Gas Transmission Co., 911 S.W.2d 479, 481–82 (Tex. App.—Corpus

Christi 1995, writ denied); S.O.C. Homeowners Ass’n v. City of Sachse, 741 S.W.2d 542, 544 (Tex.

App.—Dallas 1987, no writ).

944. Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).

945. Id.

946. Sommers v. Sandcastle Homes, 521 S.W.3d 749, 754 (Tex. 2017); Nall v. Plunkett, 404

S.W.3d 552, 555 (Tex. 2013) (per curiam); Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per

curiam); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Natividad v. Alexsis, Inc., 875 S.W.2d

695, 699 (Tex. 1994).

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of review and presumptions run in favor of the judgment.

947

In contrast to an

appeal from a summary judgment, the standard of review and presumptions run

against the judgment.

948

The supreme court set out the rules to be followed by an appellate court

in reviewing a summary judgment record in often-quoted Nixon v. Mr.

Property Management Co.

949

The court enumerated the rule as follows:

1. The movant for summary judgment has the burden of showing that

there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding

summary judgment, evidence favorable to the non-movant will be

taken as true.

3. Every reasonable inference must be indulged in favor of the non-

movant and any doubts resolved in its favor.

950

A traditional summary judgment is properly granted only when a

movant establishes that there are no genuine issues of material fact and

that it is entitled to judgment as a matter of law.

951

Once the movant has

established a right to summary judgment, the nonmovant has the burden

to respond to the motion and present to the trial court any issues that

would preclude summary judgment.

952

The Texas Supreme Court’s decision in Gibbs v. General Motors Corp.

sets out the standard of appellate review for traditional summary

judgments.

953

In Gibbs, the supreme court stated:

[T]he question on appeal, as well as in the trial court, is not whether

the summary judgment proof raises fact issues with reference to the

essential elements of a plaintiff’s claim or cause of action, but is

whether the summary judgment proof establishes as a matter of law

947. See Tex. Dep’t of Pub. Safety v. Martin, 882 S.W.2d 476, 482–83 (Tex. App.—Beaumont

1994, no writ).

948. See Borrego v. City of El Paso, 964 S.W.2d 954, 956 (Tex. App.—El Paso 1998, pet.

denied) (“Unlike other final judgments reviewed on appeal, we do not review the summary

judgment evidence in the light most favorable to the judgment of the trial court.”).

949. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

950. Id. (citing Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex. 1984)); see also

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Binur v. Jacobo, 135 S.W.3d 646, 657

(Tex. 2004) (accepting evidence favorable to nonmovant as true).

951. TEX. R. CIV. P. 166a(c). See generally supra Part 1.I.A.2.

952. TEX. R. CIV. P. 166A(C); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678–79 (Tex. 1979).

953. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).

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that there is no genuine issue of fact as to one or more of the essential

elements of the plaintiff’s cause of action.

954

When reviewing a no-evidence summary judgment, the courts generally

apply the same legal sufficiency standard applied in reviewing a directed

verdict.

955

A no-evidence summary judgment requires the nonmoving party

to present evidence raising a genuine issue of material fact supporting each

element contested in the motion.

956

When reviewing a no-evidence summary

judgment, appellate courts “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.”

957

Thus, review of a summary judgment under either a traditional

standard or no-evidence standard requires that the evidence presented by

both the motion and the response be viewed in the light most favorable to

the party against whom the motion was rendered, crediting evidence

favorable to that party if reasonable jurors could and disregarding all

contrary evidence and inferences unless reasonable jurors could not.

958

Since the supreme court issued City of Keller v. Wilson,

959

courts rely on City of

Keller’s “reasonable jury” standard and a “scintilla of evidence” standard.

960

Less than a scintilla of evidence exists “[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 . . . and, in legal effect, [it] is no evidence.”

961

More than a scintilla

of evidence exists when the evidence “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions” concerning

existence of the vital fact.

962

When a party moves for summary judgment on

both a no-evidence and a traditional motion for summary judgment, the

954. Id.; see also Phan Son Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999) (noting that once a

movant proves it is entitled to summary judgment, the burden shifts to the nonmovant to present

evidence that raises a fact issue).

955. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018); Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006).

956. TEX. R. CIV. P. 166A(I); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

957. Timpte Indus., Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc., 206 S.W.3d at 582);

see also supra Part 1.III.B.1.

958. Timpte Indus., Inc., 286 S.W.3d at 310; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d

502, 506 (Tex. 2002). See generally supra Part 1.I.A.2–3.

959. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

960. See, e.g., Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam); Rivers v.

Charlie Thomas Ford, Ltd., 289 S.W.3d. 353, 358 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

961. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (first alteration in original)

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

962. Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

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appellate courts first review the judgment under no-evidence standards.

963

If the appellant has failed to produce more than a scintilla of evidence

under no-evidence standards, the court has no need to address whether the

appellee’s summary judgment proof satisfied the burden under traditional

summary judgment standards.

964

In other words, if the nonmovant has not

satisfied its burden in response to a no-evidence motion for summary

judgment, there is no need for the appellate court to analyze whether the

movant satisfied its burden under the traditional motion.

965

For those occasions when a summary judgment denial is appealable, the

standard of review is the same.

966

The appellate court will not consider

evidence that favors the movant’s position unless it is uncontroverted.

967

Declaratory judgments rendered by summary judgment are reviewed

under the same standards as those that govern summary judgments

generally.

968

Thus, a declaratory judgment granted on a traditional motion

for summary judgment is reviewed de novo.

969

Issues of statutory construction are reviewed de novo.

970

The court’s

objective is to give effect to the legislature’s intent, and it does so by applying

the statutes’ words according to their plain and common meaning unless a

contrary intention is apparent from the statutes’ context.

971

The standard of review for whether there has been an adequate time

for discovery is abuse of discretion.

972

Rulings concerning the admission

or exclusion of summary judgment evidence are also reviewed under an

963. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017); Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Courts do not always follow this order.

For example, in D.R. Horton-Texas, Ltd. v. Savannah Properties, the court reviewed a traditional

motion for summary judgment first because the movant’s release affirmative defense was

dispositive. 416 S.W.3d 217, 225 n.7 (Tex. App.—Fort Worth 2013, no pet.).

964. D.R. Horton-Tex., Ltd., 416 S.W.3d at 225 n.7; All Am. Tel., Inc. v. USLD Commc’ns,

Inc., 291 S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet. denied).

965. Gonzalez v. Ramirez, 463 S.W.3d 499, 502 n.7 (2015); Merriman v. XTO Energy, Inc.,

407 S.W. 3d 244, 248 (Tex. 2013).

966. Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.—Houston [14th Dist.] 1994, writ

denied).

967. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47

(Tex. 1965); Corp. Leasing Int’l, Inc. v. Groves, 925 S.W.2d 734, 736 (Tex. App.—Fort Worth

1996, writ denied).

968. Baywood Estates Prop. Owners Ass’n v. Caolo, 392 S.W.3d 776, 780 (Tex. App.—Tyler

2012, no pet.); Hourani v. Katzen, 305 S.W.3d 239, 248 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied).

969. In re Marriage of I.C. & Q.C., 551 S.W.3d 119, 121–22 (Tex. 2018); Wausau

Underwriters Ins. Co. v. Wedel, 557 S.W.3d 554, 557 (Tex. 2018) (citing Kachina Pipeline Co. v.

Lillis, 471 S.W.3d 445, 449 (Tex. 2015)).

970. Sommers v. Sandcastle Homes, 521 S.W.3d 749, 754 (Tex. 2017); Loaisiga v. Cerda, 379

S.W.3d 248, 254–55 (Tex. 2012).

971. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).

972. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.]

2000, pet. denied); see supra Part 1.I.C (discussing time for filing).

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abuse of discretion standard.

973

The decision to grant sanctions is a matter

of discretion.

974

F. Appellate Record

The appellate court may consider only the evidence that is on file before

the trial court at the time of the hearing or, with permission of the court, is

filed after the hearing but before judgment.

975

When the summary judgment

record is incomplete, any omitted documents are presumed to support the

trial court’s judgment.

976

“Although [the movant] bears the burden to prove

its summary judgment as a matter of law, on appeal [the nonmovant] bears

the burden to bring forward the record of the summary judgment evidence to

provide appellate courts with a basis to review [its] claim of harmful error.”

977

Even though referenced in parties’ briefs, the court may not consider in an

appeal from a summary judgment a witness’s testimony at the later bench

trial, any summary judgment evidence that was struck by the trial court, or

any late summary judgment evidence for which leave to file was denied.

978

Neither can the court consider documents attached to briefs that are not part

of the summary judgment record.

979

In DeSantis v. Wackenhut Corp., the only proof offered by the movant

was an affidavit that was not included in the appellate record.

980

The court

upheld the summary judgment for the movant because the burden was on the

nonmovant challenging the summary judgment to bring forward the record

from the summary judgment proceeding in order to prove harmful error.

981

In DeBell v. Texas General Realty, Inc., it was clear that the trial court

considered at least one deposition that was not brought forward on appeal.

982

973. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).

974. Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex. App.—Houston [14th Dist.] 1999, no

pet.).

975. TEX. R. CIV. P. 166a(c); Young v. Gumfory, 322 S.W.3d 731, 738 (Tex. App.—Dallas

2010, no pet.); Wilson v. Thomason Funeral Home, Inc., No. 03-02-00774-CV, 2003 WL

21706065, at *5 n.3 (Tex. App.—Austin July 24, 2003, no pet.) (mem. op.) (quoting Judge David

Hittner & Lynne Liberato, Summary Judgments in Texas, 54 BAYLOR L. REV. 1, 82 (2002)).

976. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990); Tate v. E.I. Du Pont de

Nemours & Co., 954 S.W.2d 872, 874 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

977. Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam).

978. U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 215 (Tex. App.—San Antonio 2012, pet.

denied).

979. K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96–97 (Tex. App.—San Antonio 2002,

no pet.).

980. DeSantis, 793 S.W.2d at 689.

981. Id.

982. DeBell v. Tex. Gen. Realty, Inc., 609 S.W.2d 892, 893 (Tex. Civ. App.—Houston [14th

Dist.] 1980, no writ).

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The appellate court presumed that the missing deposition would have

supported the summary judgment granted by the trial court.

983

The fact that evidence is not included in a clerk’s record or reporter’s

record does not mean it was not “on file” with the trial court. “An item may

be on file with the trial court yet ‘omitted’ from the record and thus

‘supplemented’ to the record.”

984

If a party discovers something missing from

the appellate record that had been filed in the trial court, courts of appeals

liberally grant motions to supplement the record.

985

G. Appellate Briefs

The Texas Rules of Appellate Procedure allow an appellant the

option of including points of error or questions presented.

986

For

appellants choosing points of error, the supreme court has approved the

following single, broad point of error on appeal: “The trial court erred in

granting the motion for summary judgment.”

987

This wording will allow

argument concerning all the possible grounds upon which summary

judgment should have been denied.

988

Nonetheless, the appellant must

attack each basis on which the summary judgment could have been

granted.

989

If it does not make a specific challenge to a ground, whether

proper or improper, the summary judgment concerning that ground will

983. Id.; see also Ingram v. Fred Oakley Chrysler-Dodge, 663 S.W.2d 561, 561–62 (Tex.

App.—El Paso 1983, no writ); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 63 (Tex. App.—

San Antonio 1983, writ ref’d n.r.e.).

984. Lance v. Robinson, 543 S.W.3d 723, 733 (Tex. 2018)

985. See TEX. R. APP. P. 34.5(c).

986. TEX. R. APP. P. 38.1(f).

987. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (capitalization omitted);

see also Plexchem Int’l, Inc. v. Harris Cty. Appraisal Dist., 922 S.W.2d 930, 930–31 (Tex. 1996)

(per curiam); Cassingham v. Lutheran Sunburst Health Serv., 748 S.W.2d 589, 590 (Tex. App.—

San Antonio 1988, no writ) (approving general assignment of error by appellant to allow argument

of all possible grounds). But see A.C. Collins Ford, Inc. v. Ford Motor Co., 807 S.W.2d 755, 760

(Tex. App.—El Paso 1990, writ denied) (criticizing Malooly Bros.). Other, more specific points

may be used, but the judgment must be affirmed if there is another possible ground on which the

judgment could have been entered. Dubow v. Dragon, 746 S.W.2d 857, 859 (Tex. App.—Dallas

1988, no writ).

988. Malooly Bros., Inc., 461 S.W.2d at 121. But see Rodriguez v. Morgan, 584 S.W.2d 558,

558–59 (Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (limiting appellant’s point of error to one

ground for granting summary judgment, despite general point of error against summary judgment).

Given the Rodriguez court’s discussion of the lack of briefing on other grounds, this case

demonstrates the need to adequately brief each issue raised by the summary judgment, rather than

the requirement of separate points of error. See id. at 559.

989. Nabors Corporate Servs., Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 95 (Tex. App.—

Houston [14th Dist.] 2004, no pet.).

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be affirmed.

990

Similarly, if the appellant fails to negate each ground on

which the judgment may have been rendered, the appellate court must

uphold the summary judgment.

991

When complaining about an evidentiary

ruling, an appellant should not only show error, but also that the judgment

turns on the particular evidence admitted or excluded.

992

The appellee in a summary judgment case is in a very different posture

on appeal than an appellee in a case that was tried on its merits. Summary

judgment review is de novo.

993

Because the appellate court will be reviewing

the summary judgment with all presumptions in favor of the appellant, it is

not enough for the appellee to rest on the decision of the trial court.

994

appellee in a summary judgment appeal must thoroughly and carefully brief

the case.

995

The appellee should not simply refute the appellant’s arguments,

but should aggressively present to the appellate court the express reasons why

the trial court was correct in granting summary judgment.

996

Issues not expressly presented to the trial court may not be considered

at the appellate level, either as grounds for reversal or as other grounds in

support of a summary judgment.

997

If the motion fails to address a claim, the

movant is not entitled to summary judgment on that claim and judgment will

be reversed and remanded to the trial court if it is based on that claim.

998

Combs v. Fantastic Homes, Inc., the court defined “issue” within the context

of Rule 166a as follows:

[A] summary judgment cannot be attacked on appeal on a question not

presented to the trial court, either as a specific ground stated in the

990. Leffler v. J.P. Morgan Chase Bank, N.A., 290 S.W.3d 384, 386 (Tex. App.—El Paso

2009, no pet.); Broesche v. Jacobson, 218 S.W.3d 267, 274 (Tex. App.—Houston [14th Dist.] 2007,

pet. denied); Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 206 (Tex. App.—Dallas 2005, no pet.).

991. Leffler, 290 S.W.3d at 386.

992. Main v. Royall, 348 S.W.3d 381, 388 (Tex. App.—Dallas 2011, no pet.). To reverse a

judgment on the ground of improperly admitted or excluded evidence, a party must show that the

error probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1).

993. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); see

also supra Part 1.V.F (discussing appealing summary judgments and the standard of review for

summary judgments).

994. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

995. Jimenez v. Citifinancial Mortg. Co., 169 S.W.3d 423, 425–26 (Tex. App.—El Paso 2005,

no pet.).

996. See Dubois v. Harris County, 866 S.W.2d 787, 790 (Tex. App.—Houston [14th Dist.]

1993, no writ).

997. FDIC v. Lenk, 361 S.W.3d 602, 609–10, 609 n.7 (Tex. 2012); Bell v. Showa Denko K.K.,

899 S.W.2d 749, 756 (Tex. App.—Amarillo 1995, writ denied); W.R. Grace Co. v. Scotch Corp.,

753 S.W.2d 743, 748 (Tex. App.—Austin 1988, writ denied), disapproved of on other grounds by

Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991); Dickey v. Jansen, 731 S.W.2d

581, 583 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.); see also supra Part 1.I.A

(discussing the procedure for summary judgments).

998. Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001) (per curiam); Sci. Spectrum,

Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).

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motion or as a fact issue presented by the opposing party in a written

answer or other response. Accordingly, we hold that the opposing

party, without filing an answer or other response, may raise for

consideration on appeal the insufficiency of the summary-judgment

proof to support the specific grounds stated in the motion, but that he

may not, in the absence of such an answer or other response, raise any

other “genuine issue of material fact” as a ground for reversal. In other

words, the opposing party may challenge the grounds asserted by the

movant, but he may not assert the existence of “issues” not presented

to the trial court by either party.

999

Even though the court will not consider issues that were not raised in

the courts below, parties may construct new arguments in support of those

issues properly before the appellate courts.

1000

Cases disposed of by summary judgment often have voluminous clerk’s

records.

1001

The importance of meeting the briefing requirements, such as

referencing the page of the record where the matter complained of may be

easily found, cannot be overemphasized.

1002

Appellate courts will not search

the record, with no guidance from an appellant, to determine if a material fact

issue was raised by the record.

1003

“Thus, an inadequately briefed issue may

be waived on appeal.”

1004

H. Actions by Appellate Courts

An appellate court should consider all summary judgment grounds the

trial court rules upon and the movant preserves for appellate review that are

necessary for final disposition of the appeal.

1005

It now makes no difference

whether the trial court specifies the reason in its order for granting the motion

for summary judgment.

1006

When properly preserved for appeal, the court of

999. Combs v. Fantastic Homes, Inc., 584 S.W.2d 340, 343 (Tex. Civ. App.—Dallas 1979,

writ ref’d n.r.e.); see Dhillon v. Gen. Accident Ins. Co., 789 S.W.2d 293, 295 (Tex. App.—Houston

[14th Dist.] 1990, no writ) (“The judgment of the trial court cannot be affirmed on any grounds not

specifically presented in the motion for summary judgment.”).

1000. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014).

1001. See, e.g., Montgomery v. Kennedy, 669 S.W.2d 309, 310 (Tex. 1984) (noting the

summary judgment record contained over fifteen depositions and other transcripts); Martin v.

Martin, 840 S.W.2d 586, 588 (Tex. App.—Tyler 1992, writ denied) (describing the fourteen-volume

summary judgment record); A.C. Collins Ford, Inc. v. Ford Motor Co., 807 S.W.2d 755, 760 (Tex.

App.—El Paso 1990, writ denied) (questioning the Malooly rule where summary judgment record

contained a 1,700-page transcript, 1,200-page deposition, and 28 exhibits).

1002. See, e.g., Jimenez v. Citifinancial Mortg. Co., 169 S.W.3d 423, 425–26 (Tex. App.—El

Paso 2005, no pet.) (holding appellants waived both issues on appeal due to inadequate briefing).

See generally TEX. R. APP. P. 38.1–.2 (outlining the requirements of appellate briefs).

1003. Trebesch v. Morris, 118 S.W.3d 822, 825 (Tex. App.—Fort Worth 2003, pet. denied).

1004. Id.

1005. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

1006. See id.

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appeals should review the grounds upon which the trial court granted the

summary judgment and those upon which it denied the summary

judgment.

1007

In other words, the court of appeals must consider all grounds

on which the trial court rules and may consider grounds on which it does not

rule “in the interest of judicial economy.”

1008

Conversely, the appellate court

may not affirm on a ground not presented to the trial court in the motion for

summary judgment.

1009

A court of appeals commits reversible error when it

sua sponte raises grounds to reverse a summary judgment that were not

briefed or argued in the appeal.

1010

In a recent case, the supreme court noted

that the trial court’s reasoning in its order was helpful.

1011

If an appellant/petitioner is presented with an appeal in which it initially

appears that error was not preserved, it may be appropriate to attempt to

define a larger “issue” that would allow a new argument. Even though a party

may not raise new issues on appeal, it may present new arguments in support

of a ground properly presented to the trial court.

1012

The supreme court

extensively addressed the distinction between an “issue” and an “argument”

in a case involving construction of the Labor Code.

1013

The court decided that

the foremost disputed issue in the case was whether the movant was in the

course and scope of her employment when she fell.

1014

The fact that this issue

had been raised below allowed her to raise arguments at any time.

1015

Noting

that the distinction was narrower under the Labor Code, the court also

addressed “our common understanding” of the term “issue.”

1016

Quoting

Black’s Law Dictionary, it wrote that an “issue” is a “point of dispute

between two or more parties.”

1017

It then explained that a party may waive an

issue by failing to present it in to the courts below.

1018

It contrasted issue with

“new arguments,” which “parties are free to construct” in support of

unwaived issues before the court.

1019

1007. See id.

1008. Id.

1009. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam); State Farm Lloyds v.

Page, 315 S.W.3d 525, 532 (Tex. 2010).

1010. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015).

1011. See Compass Bank v. Calleja-Ahedo, 62 Tex. Sup. J. 260, 2018 WL 6713245, at *2

(Dec. 21, 2018).

1012. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014).

1013. State Office of Risk Mgmt. v. Martinez 539 S.W.3d 266, 271–75 (Tex. 2017).

1014. Id. at 274.

1015. Id. at 275.

1016. Id. at 273.

1017. Id. (quoting Issue, Black’s Law Dictionary (10th Ed. 2014)).

1018. Id.

1019. Id.

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Normally, reversal of a judgment for one party will not justify a reversal

for other nonappealing parties.

1020

If there are multiple parties and some fail

to join in a motion that is granted, they will not be entitled to benefit from the

affirmance on appeal and will face those claims not covered by their own

motions.

1021

(As a practical matter, the parties could then move for and,

assuming the grounds and evidence are the same, obtain a summary judgment

from the trial court following remand.)

The San Antonio Court of Appeals, however, applied to a summary

judgment the exception to the general rule that would allow reversal for both

parties where “the respective rights of the appealing and nonappealing parties

are so interwoven or dependent on each other as to require a reversal of the

entire judgment.”

1022

The court determined that the existence of identical

facts and intertwined issues required reversal of summary judgment for an

excess insurer upon reversal of summary judgment against a primary

insurer.

1023

Under the Texas Rules of Appellate Procedure, which require each party

challenging the judgment to file an independent notice of appeal, it may be

necessary to file a separate notice of appeal to properly preserve the claim

that the summary judgment could be sustained on a point overruled or not

ruled upon by the trial court.

1024

If the party that loses on appeal from a summary judgment pleaded its

case in reliance on controlling precedent that was later overruled, the

appellate court may remand for a new trial in the interest of justice rather than

render.

1025

Also, the court of appeals may affirm the liability part of the summary

judgment and reverse the damages portion of the summary judgment.

1026

Appellate courts have accessed penalties have been assessed for bringing an

appeal that the appellate court held to be taken for delay and without

1020. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982).

1021. Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014).

1022. U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 219–20 (Tex. App.—San Antonio 2012,

pet. denied) (quoting Turner, Collie & Braden, Inc., 642 S.W.2d at 166 (noting that, in such a case,

it is necessary for the court to reverse the entire judgment to provide full and effective relief to the

appellant)).

1023. Id. at 220.

1024. See TEX. R. APP. P. 25.1(c) (“The appellate court may not grant a party who does not file

a notice of appeal more favorable relief than did the trial court except for just cause.”).

1025. Hamrick v. Ward, 446 S.W.3d 377, 385–86 (Tex. 2014) (clarifying the law of easements

and reversing and remanding for the losing party to elect whether to pursue a claim under the new

law).

1026. See, e.g., St. Paul Cos. v. Chevron U.S.A., Inc., 798 S.W.2d 4, 7 (Tex. App.—Houston

[1st Dist.] 1990, writ dism’d by agr.).

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sufficient cause.

1027

Rendition rather than remand is an appropriate remedy if

the appellate court specifically indicates that it did not intend to address more

than the claims severed.

1028

The supreme court may consider alternative grounds for affirming the

court of appeals’ judgment if not reached by the court of appeals.

1029

If a

summary judgment is reversed, the parties are not limited to the theories

asserted in the original summary judgment at a later trial on the merits.

1030

a party unsuccessfully moves for summary judgment and later loses in a

conventional trial on the merits, an interlocutory order overruling the

summary judgment motion is not reviewable on appeal.

1031

I. Bills of Review

A bill of review is an equitable proceeding by a party to a former

action who seeks to set aside a judgment that is no longer appealable or

subject to a motion for new trial.

1032

A petitioner must ordinarily plead

and prove: (1) a meritorious claim or defense; (2) that he was unable to

assert due to the fraud, accident, or wrongful act of his opponent; and

(3) unmixed with any fault or negligence of his own.

1033

A summary

judgment may be appropriate to challenge whether a party bringing a bill

of review has adequately established these requirements.

1034

1027. See, e.g., Triland Inv. Grp. v. Tiseo Paving Co., 748 S.W.2d 282, 285 (Tex. App.—Dallas

1988, no writ) (noting appellate courts may award damages for an appeal taken for delay, up to 10%

of the total damages award).

1028. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 770–71 (Tex. 2014).

1029. Hemyari v. Stephens, 355 S.W.3d 623, 627 (Tex. 2011) (per curiam).

1030. Hudson v. Wakefield, 711 S.W.2d 628, 630–31 (Tex. 1986); Creative Thinking Sources,

Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 511–12 (Tex. App.—Corpus Christi 2002, no pet.).

1031. Pennington v. Gurkoff, 899 S.W.2d 767, 769 (Tex. App.—Fort Worth 1995, writ denied);

Jones v. Hutchinson County, 615 S.W.2d 927, 930 (Tex. Civ. App.—Amarillo 1981, no writ).

1032. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987).

1033. Id. at 407–08; see also Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex.

2012) (per curiam); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 511 n.30 (Tex. 2010); Baker

v. Goldsmith, 582 S.W.2d 404, 406–07 (Tex. 1979); Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

1034. See, e.g., Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 164 (Tex. 2015);

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012); Ortega v. First RepublicBank Fort

Worth, N.A., 792 S.W.2d 452, 453 (Tex. 1990); Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d

482, 487–88 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Caldwell v. Barnes, 941 S.W.2d 182,

187 (Tex. App.—Corpus Christi 1996), rev’d on other grounds, 975 S.W.2d 535, 537 (Tex. 1998);

Blum v. Mott, 664 S.W.2d 741, 744–45 (Tex. App.—Houston [1st Dist.] 1983, no writ).

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J. Likelihood of Reversal

Related studies of separate court years conducted nine years apart

considered reasons for reversal in Texas courts of appeals.

1035

During both

of the separate one-year periods reviewed by the studies, more appeals

were taken from summary judgments than any other type of judgment.

1036

Conventional wisdom is that summary judgments are frequently

reversed.

1037

However, that number is not as frequent as many believe. In

fact, between the first study, which examined the 2001–2002 court year,

and the second study, which examined the 2010–2011 court year, the

percentages shifted so that more jury trials were reversed than summary

judgments.

1038

The statewide reversal rate for summary judgments in the

earlier study was 33%.

1039

In the more recent study, the rate was 31%.

1040

This compared with the reversal rate of 25% for judgments on jury

verdicts in the first study

1041

and 34% in the later study.

1042

The overall

reversal rate for all civil appeals was 33% in the earlier study and 36% in

the later study.

1043

Broken down by substance, the most recent study revealed summary

judgment reversal rates of 29% in contracts cases, 28% for tort/DTPA

(nonpersonal injury) defendants, 24% for personal injury defendants, and 5%

for employers or insurers.

1044

Texas courts of appeals reversed 47% of the

time because they found a fact issue or some evidence to defeat the summary

judgment, 35% because the trial judge made an error of law, and 18% for

some procedural defect.

1045

The results of this study further demonstrate the

importance of carefully following the technical requirements for summary

judgment practice. The relatively high number of reversals of 18% for

procedural defects reflects cases where the summary judgment may have

1035. Liberato & Rutter, 2012 Study, supra note 852, at 1009; Liberato & Rutter, 2003 Study,

supra note 852, at 445.

1036. Liberato & Rutter, 2012 Study, supra note 852, at 1009; Liberato & Rutter, 2003 Study,

supra note 852, at 445–46.

1037. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979) (“[A]

poll of district judges throughout the state reflected many were skeptical about the efficacy of the

[summary judgment] rule because of frequent reversals by appellate courts.”).

1038. Liberato & Rutter, 2012 Study, supra note 852, at 997.

1039. Liberato & Rutter, 2003 Study, supra note 852 at 446, 471 app. B, fig.10.

1040. Liberato & Rutter, 2012 Study, supra note 852, at 1009, 1035 app. B, fig.10. For both

court years, the rates of reversals varied significantly by court of appeals. Id.; Liberato & Rutter,

2003 Study, supra note 852, at 446, 471 app. B, fig.10.

1041. Liberato & Rutter, 2003 Study, supra note 852, at 439, 463 app. B, fig.2.

1042. Liberato & Rutter, 2012 Study, supra note 852, at 1002, 1027 app. B, fig.2.

1043. Id. at 999, 1026 app. B, fig.1; Liberato & Rutter, 2003 Study, supra note 852, at 436, 462

app. B, fig.1.

1044. Liberato & Rutter, 2012 Study, supra note 852, at 1037 app. B, fig.12.

1045. Id. at 1038 app. B, fig.13.

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been fundamentally sound, but was reversed because of failure to follow

proper procedures.

VI. ATTORNEYS’ FEES

The reasonableness of attorneys’ fees is generally a fact issue.

1046

Nonetheless, an award of attorneys’ fees may be appropriate in a summary

judgment proceeding. Attorneys’ fees must be specifically pleaded to be

recovered.

1047

Failure to specifically request attorneys’ fees in the appellate court

may not prevent the court from authorizing such an award.

1048

A. Reasonableness of Fees

Texas law adheres to the “American Rule” with respect to the award

of attorneys’ fees, which permits the recovery of attorneys’ fees from an

opposing party only when authorized by contract or statute.

1049

Chapter 38

of the Texas Civil Practice and Remedies Code provides for recovery of

attorneys’ fees for a list of claims. By far, the most common of these

claims is for breach of an oral or written contract.

1050

For a claim for

attorneys’ fees under Chapter 38, “[t]he court may take judicial notice of

the usual and customary attorney’s fees” and the case file contents without

further evidence being presented.

1051

Texas courts consider eight factors when determining the

reasonableness of attorneys’ fees:

1. the time and labor required, the novelty and difficulty of the

questions involved, and the skill required to perform the legal service

properly;

2. the likelihood . . . that the acceptance of the particular employment

will preclude other employment by the lawyer;

3. the fee customarily charged in the locality for similar legal services;

1046. Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.—Houston [1st Dist.]

2009, pet. denied).

1047. Shaw v. Lemon, 427 S.W.3d 536, 539–40 (Tex. App.—Dallas 2014, pet. denied).

1048. See Superior Ironworks, Inc. v. Roll Form Prods., Inc., 789 S.W.2d 430, 431 (Tex. App.—

Houston [1st Dist.] 1990, no writ) (“[A] prayer in a petition for reasonable attorney’s fees is

sufficient to authorize an award of fees for services in a higher court.”).

1049. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).

1050. Texas Civil Practice and Remedies Code Section 38.001 also lists claims for rendered

services, performed labor, furnished material, freight or express overcharges, lost or damaged

freight, killed or injured stock, and a sworn account. TEX. CIV. PRAC. & REM. CODE ANN.

§ 38.001(1)–(7) (West 2017).

1051. Id. § 38.004; see also Flint & Assocs. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d

622, 626 (Tex. App.—Dallas 1987, writ denied) (noting that the trial court properly took judicial

notice of all claims that had been filed in the case in determining attorney’s fees).

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4. the amount involved and the results obtained;

5. the time limitations imposed by the client or by the circumstances;

6. the nature and length of the professional relationship with the client;

7. the experience, reputation, and ability of the lawyer or lawyers

performing the services; and

8. whether the fee is fixed or contingent on results obtained or

uncertainty of collection before the legal services have been

rendered.

1052

A trial court, however, “is not required to receive evidence on each of

these factors.”

1053

B. Proof Requirements

In support of a motion for summary judgment that includes a request for

attorneys’ fees, an affidavit by the movant’s attorney (that includes his or her

opinion on reasonable attorney’s fees and the factual basis for that opinion)

should be added to the motion for summary judgment.

1054

An attorney’s affidavit

constitutes expert testimony that will support an award of attorney’s fees in a

summary judgment proceeding.

1055

Civil Practice and Remedies Code Section

38.003 provides that “usual and customary attorney’s fees” are presumed to be

reasonable.

1056

Once triggered by an attorney’s supporting affidavit, the

presumption of reasonableness remains in effect when there is no evidence

submitted to challenge the affidavit proof of the summary judgment movant.

1057

An affidavit filed by a summary judgment movant’s attorney that “sets

forth [her] qualifications, [her] opinion regarding reasonable attorney’s fees,

and the basis for [her] opinion will be sufficient to support summary

judgment, if uncontroverted.”

1058

Under Texas law, “billing records need not

1052. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)

(alteration in original); State & Cty. Mut. Fire Ins. Co. v. Walker, 228 S.W.3d 404, 408 (Tex. App.—

Fort Worth 2007, no pet.).

1053. State & Cty. Mut. Fire Ins. Co., 228 S.W.3d at 408.

1054. See Roberts v. Roper, 373 S.W.3d 227, 233 (Tex. App.—Dallas 2012, no pet.).

1055. Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 288 (Tex. App.—

Houston [1st Dist.] 1991, writ denied); Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d

144, 148 (Tex. App.—Houston [1st Dist.] 1986, no writ); see supra Part 1.II.H.1 (discussing expert

witness testimony); see also Gensco, Inc. v. Transformaciones Metalurgicias Especiales, S.A., 666

S.W.2d 549, 554 (Tex. App.—Houston [14th Dist.] 1984, writ dism’d) (holding that the

uncontroverted affidavit of attorney was sufficient to prove no material issue as to the

reasonableness of the fees); Sunbelt Constr. Corp. v. S & D Mech. Contractors, Inc., 668 S.W.2d

415, 418 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.) (same).

1056. TEX. CIV. PRAC. & REM. CODE ANN. § 38.003 (West 2017).

1057. See id.; Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 513 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied).

1058. Gaughan v. Nat’l Cutting Horse Ass’n, 351 S.W.3d 408, 422 (Tex. App.—Fort Worth

2011, pet. denied) (quoting Cammack the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 894 (Tex.

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be introduced to recover attorney’s fees.”

1059

However, the supreme court

encourages their use as evidentiary support when using the lodestar method

of calculating fees.

1060

In Garcia v. Gomez, the supreme court took a broad view of the level of

specificity required by an attorney testifying on the reasonableness of his fees.

1061

The only evidence of attorney’s fees offered was the following: “I’m an attorney

practicing in Hidalgo County, doing medical-malpractice law/litigation. I have

done it since 1984. For a usual and customary case like this the [sic] fees for

handling it up to the point of dismissal, the reasonable and necessary attorney’s

fee for handling that is 12,200 dollars . . . .”

1062

The supreme court held that

“[w]hile the attorney’s testimony lacked specifics, it was not, under these

circumstances, merely conclusory. It was some evidence of what a reasonable

attorney’s fee might be in this case.”

1063

Significantly, the court noted that the

nonmovant “had the means and opportunity to contest the attorney’s testimony

on what a reasonable attorney[’s] fee would be in [the] case, but failed to do

so.”

1064

The court therefore determined that the nonmovant conceded the

reasonableness of the fees as a matter of law.

1065

The lesson seems to be that to

defeat the claim, the nonmovant should respond or risk conceding

reasonableness as a matter of law. Despite the Texas Supreme Court’s decision

in Garcia, some lower courts seem to be tightening up the requirements to

App.—Texarkana 2009, pet. denied)); Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372,

373 (Tex. App.—San Antonio 1999, pet. denied).

1059. Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 692 (Tex.

App.—Houston [14th Dist.] 2004, no pet.); see also In re A.B.P., 291 S.W.3d 91, 99 (Tex. App.—

Dallas 2009, no pet.).

1060. City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (per curiam); El Apple I,

Ltd. v. Olivas, 370 S.W.3d 757, 762–63 (Tex. 2012).

1061. Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex. 2010). In Garcia, the court was considering

testimony in support of fees in a case governed by the Texas Medical Liability Act. Id. at 643. But

see El Apple I, Ltd., 370 S.W.3d at 763. In El Apple I, the supreme court was evaluating the award

of attorney’s fees in a nonsummary judgment under the lodestar method. Id. at 762. The court

determined that affidavits of attorneys, standing alone, were insufficient to support a lodestar

determination of an attorney’s fee award. Id. at 763–64. Attorneys must offer proof documenting

performance of specific tasks, the time required for those tasks, the person who performed the work,

and his or her specific rate. Id. at 765. See generally Mark E. Steiner, Will El Apple Today Keep

Attorneys' Fees Away?, 19 J. CONSUMER & COM. L. 114, 122 (2016).

1062. Garcia v. Gomez, 286 S.W.3d 445, 447 (Tex. App.—Corpus Christi 2008) (alteration in

original), aff’d in part, rev’d in part, 319 S.W.3d 638 (Tex. 2010).

1063. Garcia, 319 S.W.3d at 641. Later, in City of Laredo v. Montano, the court clarified its

disapproval of such broad statements to support the reasonableness of fees, noting that the question

in El Apple I was whether there was a basis to award any fees under the lodestar method. See

Montano, 414 S.W.3d at 735–37. The fee-shifting statute at issue in Montano did not require the

use of the lodestar method, but the court reached the same conclusion as it did in El Apple I—the

attorney’s testimony in support of his fees was “devoid of substance,” as it was based on conclusory

assumptions about the total hours billed. Id. at 736.

1064. Garcia, 319 S.W.3d at 642.

1065. Id.

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recover fees on summary judgment. For example, in ViewPoint Bank v. Allied

Property & Casualty Insurance Co., the Dallas Court of Appeals addressed an

attorneys’ fees affidavit that gave “a brief description of the kinds of work done”

and then offered an opinion that a specified amount of fees was reasonable.

1066

The opposing party did not challenge the affidavit or present any contradictory

evidence in the trial court.

1067

Nonetheless, the court of appeals reasoned that the

affidavit did “not state the number of hours expended or the hourly rates charged

for the services.”

1068

Accordingly, because the court concluded that it had “no

way to determine whether the time spent on specific tasks was reasonable or the

hourly rates charged were reasonable” the court held that the summary judgment

evidence failed to establish as a matter of law the amount of reasonable and

necessary attorneys’ fees.

1069

Although not in a summary judgment context, in Long v. Griffin,

1070

the supreme court again addressed the level of sufficiency required in an

attorneys’ fees affidavit. According to the court, the affidavit contained

only generalities such as the total hours worked and the categories of

tasks performed. “[W]ithout any evidence of the time spent on the

specific tasks, the trial court has insufficient information to meaningfully

review the fee request.”

1071

The court noted that although

contemporaneous time records may not exist “the attorneys may

reconstruct their work to provide the trial court with sufficient

information to allow the court to perform a meaningful review of the fee

application[s].”

1072

C. Summary Judgment Disposition of Attorneys’ Fees

When a movant includes attorneys’ fees in a summary judgment motion, in

effect, the movant has added another cause of action. A challenge to attorneys’ fees

should be raised in a separate ground in the summary judgment motion.

1073

Pleadings alone, even if sworn to, are insufficient as summary judgment proof on

fees.

1074

So, proof must be supplied separately, most likely in the attorney’s

affidavit with supporting documents. Unless the court has taken judicial notice

1066. ViewPoint Bank v. Allied Prop. & Cas. Ins. Co., 439 S.W.3d 626, 636 (Tex. App.—Dallas

2014, pet. denied).

1067. Id.

1068. Id. at 637.

1069. Id. at 638.

1070. Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam).

1071. Id.

1072. Id. at 256.

1073. See Trebesch v. Morris, 118 S.W.3d 822, 827 (Tex. App.—Fort Worth 2003, pet. denied).

1074. Bakery Equip. & Serv. Co. v. Aztec Equip. Co., 582 S.W.2d 870, 873 (Tex. Civ. App.—

San Antonio 1979, no writ).

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under Section 38.004 of the Civil Practice and Remedies Code, such that no further

evidence is necessary, this cause of action in a summary judgment case is measured

by the same standard used for summary judgment proof.

1075

If attorneys’ fees are

recoverable under Section 38.001 of the Civil Practice and Remedies Code,

1076

addition to the other summary judgment requirements, the time and notice

requirements of Section 38.002 must be met to support an award of attorneys’

fees.

1077

The omission of a counterclaim for attorneys’ fees from a motion summary

judgment does not waive the request for fees, but rather shows that a party has

elected to take its claim for attorneys’ fees to trial.

1078

However, if a party has a

claim for fees, good practice is to advise the court in the motion for summary

judgment that it will need to address a claim for fees if it grants summary judgment.

This step may help avoid a situation where the court purports to sign a final

judgment leaving a fee request unaddressed.

While generally attorneys’ fees cannot be awarded by summary

judgment if a fact issue exists, declaratory judgment cases are an exception.

The Declaratory Judgments Act, found in Chapter 37 of the Texas Civil

Practice and Remedies Code, provides for attorneys’ fees more broadly than

1075. TEX. CIV. PRAC. & REM. CODE ANN. § 38.004 (West 2017); see, e.g., Freeman Fin. Inv.

Co. v. Toyota Motor Corp., 109 S.W.3d 29, 35–36 (Tex. App.—Dallas 2003, pet. denied); Bakery

Equip. & Serv. Co., 582 S.W.2d at 873; Lindley v. Smith, 524 S.W.2d 520, 524 (Tex. Civ. App.—

Corpus Christi 1975, no writ).

1076. Section 38.001 provides:

A person may recover reasonable attorney’s fees from an individual or corporation, in

addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;

(2) performed labor;

(3) furnished material;

(4) freight or express overcharges;

(5) lost or damaged freight or express;

(6) killed or injured stock;

(7) a sworn account; or

(8) an oral or written contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001.

1077. Id. § 38.002. Section 38.002 provides:

To recover attorney’s fees under this chapter:

(1) the claimant must be represented by an attorney;

(2) the claimant must present the claim to the opposing party or to a duly authorized agent

of the opposing party; and

(3) payment for the just amount owed must not have been tendered before the expiration

of the 30th day after the claim is presented.

Id.

1078. See Corral-Lerma v. Border Demolition & Envtl. Inc., 467 S.W.3d 109, 125 (Tex. App.—

El Paso 2015, pet. denied) (citing McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001)); cf. In

Interest of E.S., No. 14-14-00328-CV, 2015 WL 1456979, at *3 (Tex. App.—Houston [14th Dist.]

Mar. 26, 2015, no pet.) (summary judgment order was not final because it did not dispose of claims

for attorneys’ fees).

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under other statutes.

1079

It provides that “the court may award costs and

reasonable and necessary attorney’s fees as are equitable and just.”

1080

Because attorneys’ fees are left to the discretion of the court, the trial judge

may award fees following summary judgment even if a fact issue exists.

1081

Promissory notes may provide for attorneys’ fees in a fixed

percentage clause that requires the payment of a stipulated percentage of

the unpaid balance upon default.

1082

In a summary judgment proceeding,

when the note includes a stipulated percentage of the unpaid balance as

attorneys’ fees, proof concerning the reasonableness of the fixed

percentage fee is not required unless the pleadings and proof challenge

the reasonableness of that amount.

1083

Thus, where a nonmovant offers

no summary judgment evidence to indicate that the stipulated amount

was unreasonable, the trial court’s award of attorneys’ fees is proper.

1084

D. Attorneys’ Fees on Appeal from Summary Judgment

If both parties file cross-motions for summary judgment, the losing

party should explicitly appeal not only the denial of its cross-motion, but

also any related failure to award attorneys’ fees in its favor, whether in

the motion for summary judgment or through a separate trial.

1085

If the prevailing party’s judgment is reversed on appeal, any associated

award of attorneys’ fees should also be reversed.

1086

VII. TYPES OF CASES AMENABLE TO SUMMARY JUDGMENT

Some types of cases particularly lend themselves to summary

judgment disposition; other categories of cases are not appropriate for

1079. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912 (2015). Compare TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009, with § 38.001–.002.

1080. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009.

1081. Elder v. Bro, 809 S.W.2d 799, 801 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

1082. See Kuper v. Schmidt, 338 S.W.2d 948, 950–51 (Tex. 1960) (discussing the collection of

attorneys’ fees upon default).

1083. Highlands Cable Television, Inc. v. Wong, 547 S.W.2d 324, 327 (Tex. Civ. App.—Austin

1977, writ ref’d n.r.e.); see also Kuper, 338 S.W.2d at 950–51 (allowing for the recovery of

attorney’s fees by the plaintiff when “no issue of reasonableness is raised by the defendants”).

1084. Houston Furniture Distribs., Inc. v. Bank of Woodlake, N.A., 562 S.W.2d 880, 884 (Tex.

Civ. App.—Houston [1st Dist.] 1978, no writ).

1085. See Tesco Corp. (US) v. Steadfast Ins. Co., No. 01-13-00091-CV, 2015 WL 456466, at

*4 (Tex. App.—Houston [1st Dist.] Feb. 3, 2015, pet. denied) (holding that an appeal became moot

where the underlying liability claims were resolved and the appellant failed to appeal the denial of

fees).

1086. Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 369 (Tex. 2012).

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summary judgment disposition.

1087

This Section examines several

categories of cases that are often decided by summary judgment.

A. Sworn Accounts

Motions for summary judgment often are used in suits on sworn

accounts.

1088

Texas Rule of Civil Procedure 185 provides that a suit on a

sworn account may be proper in the following instances:

When any action or defense is founded upon an open account or other

claim for goods, wares and merchandise, including any claim for a

liquidated money demand based upon written contract or founded on

business dealings between the parties, or is for personal service

rendered, or labor done or labor or materials furnished, on which a

systematic record has been kept . . . .

1089

An action brought under Rule 185 is one of procedure, not of substantive

law, with regard to the evidence necessary to establish a prima facie case of

the right to recover.

1090

In a suit on a sworn account, a litigant whose

opponent has not filed a proper answer under Rule 185 and Texas Rule of

Civil Procedure 93(10)

1091

may secure what is essentially a summary

judgment on the pleadings. In effect, noncompliance with these rules

concedes that there is no defense.

1092

If the defendant in a suit on a sworn account fails to file a written denial

under oath, that party will not be permitted at trial “to dispute receipt of the

1087. For example, juvenile matters usually are not a proper subject for summary judgment. See

State v. L.J.B., 561 S.W.2d 547, 549 (Tex. Civ. App.—Dallas 1977), rev’d on other grounds sub

nom. C.L.B. v. State, 567 S.W.2d 795, 796 (Tex. 1978) (per curiam).

1088. See, e.g., Wright v. Christian & Smith, 950 S.W.2d 411, 412–13 (Tex. App.—Houston

[1st Dist.] 1997, no writ) (reversing summary judgment in favor of plaintiff due to an issue of

material fact regarding the existence of an enforceable agreement between the parties, an essential

element of a cause of action to collect on a sworn account); Jeff Robinson Bldg. Co. v. Scott Floors,

Inc., 630 S.W.2d 779, 782 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (reversing

summary judgment in favor of plaintiff for failure to establish a prima facie sworn account case

against the defendants individually).

1089. TEX. R. CIV. P. 185.

1090. Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); Meaders v.

Biskamp, 316 S.W.2d 75, 78 (Tex. 1958); Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190

(Tex. App.—Houston [14th Dist.] 1993, no writ); see also Achimon v. J.I. Case Credit Corp., 715

S.W.2d 73, 76 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (noting that assignee of retail installment

contract failed to state a sworn account).

1091. TEX. R. CIV. P. 93(10) (requiring a denial of an account be verified by affidavit).

1092. Enernational Corp. v. Exploitation Eng’rs, Inc., 705 S.W.2d 749, 750 (Tex. App.—

Houston [1st Dist.] 1986, writ ref’d n.r.e.); see Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d

540, 543 n.1 (Tex. 1971); Waggoners’ Home Lumber Co. v. Bendix Forest Prods. Corp., 639

S.W.2d 327, 328 (Tex. App.—Texarkana 1982, no writ); see also supra Part 1.II.B (discussing

pleadings as evidence).

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items or services or the correctness of the stated charges.”

1093

As a general

rule, a sworn account is prima facie evidence of a debt, and the account need

not be formally introduced into evidence unless the account’s existence or

correctness has been denied in writing under oath.

1094

1. Requirements for Petition

A sworn account petition should be supported by an affidavit that the claim

is “within the knowledge of affiant, just and true.”

1095

Unless the trial court

sustains special exceptions to the pleadings, no particularization or description

of the nature of the component parts of the account or claim is necessary.

1096

special exceptions are filed and sustained, the account (invoice or statement

account) should show the nature of the item sold, the date, and the charge.

1097

addition, if they are challenged by special exceptions, technical and unexplained

abbreviations, code numbers, and the like are insufficient to identify items and

terms and must be explained.

1098

Also, if special exceptions are sustained, the

language used in the account must have a common meaning and must not be of

the sort understood only in the industry in which it is used.

1099

If invoicing and

billing is done with only computer numbers or abbreviations, a key to this

“business shorthand” should be attached to the pleadings or be readily available

if repleading is necessary.

1100

2. Answer/Denial

The answer must consist of a written denial supported by an affidavit

denying the account.

1101

When a party suing on a sworn account files a motion

1093. Airborne Freight Corp. v. CRB Mktg., Inc., 566 S.W.2d 573, 574 (Tex. 1978) (per

curiam); see also Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985) (per curiam) (citing TEX.

R. CIV. P. 185); Murphy v. Cintas Corp., 923 S.W.2d 663, 665 (Tex. App.—Tyler 1996, writ

denied).

1094. See Airborne Freight Corp., 566 S.W.2d at 575.

1095. TEX. R. CIV. P. 185.

1096. Enernational Corp., 705 S.W.2d at 750 (quoting TEX. R. CIV. P. 185).

1097. Hassler v. Tex. Gypsum Co., 525 S.W.2d 53, 55 (Tex. Civ. App.—Dallas 1975, no writ).

1098. See id. (holding the abbreviated product description on the invoices failed to identify the

goods sold with reasonable clarity).

1099. See id.

1100. See Price v. Pratt, 647 S.W.2d 756, 757 (Tex. App.—Corpus Christi 1983, no writ).

1101. See TEX. R. CIV. P. 93(10) (requiring an affidavit for “[a] denial of an account which is

the foundation of the plaintiff’s action”); TEX. R. CIV. P. 185 (requiring that a party who resists a

suit on account must file a written denial under oath); see also Huddleston v. Case Power & Equip.

Co., 748 S.W.2d 102, 103 (Tex. App.—Dallas 1988, no writ). In Huddleston, the court held that “a

sworn general denial is insufficient to rebut the evidentiary effect of a proper affidavit in support of

a suit on account.” Id. at 103–04. Further, the court held that the “written denial, under oath”

mandated under Rule 185 must conform to Rule 93(10), which requires the plaintiff’s claim to be

put at issue through a special verified denial of the account. Id. at 103.

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for summary judgment on the ground that the nonmovant’s pleading is

insufficient under Rule 93(10) because no proper sworn denial is filed, the

nonmovant may still amend and file a proper sworn denial.

1102

The nonmovant

is not precluded from amending and filing a proper sworn denial to the suit itself

at any time allowed under Texas Rule of Civil Procedure 63.

1103

In Brightwell v. Barlow, Gardner, Tucker & Garsek, the court considered

whether it was proper for the verified denial to appear only in the affidavit in

response to the motion for summary judgment but not in the defendant’s

answer.

1104

The court stated that Rules 185 and 93(k) (now Rule 93(10)), when

read together and applied to suits on sworn accounts, mandate that the language

needed to “effectively deny . . . the plaintiff’s sworn account must appear in a

pleading of equal dignity with the plaintiff’s petition, and therefore must appear

in the defendant’s answer.”

1105

The filing of a proper, verified denial overcomes the evidentiary effect

of a sworn account and forces the plaintiff to offer proof of the claim.

1106

3. Summary Judgment

There are two distinct grounds upon which a party may move for summary

judgment in a suit on a sworn account: (1) the failure of the defendant to file an

adequate answer; and (2) the elements of the suit are proved as a matter of

law.

1107

In the first instance, the basis for the motion for summary judgment is

that the defendant’s answer was not a timely filed sworn pleading verified by an

affidavit denying the account that is the foundation of the plaintiff’s cause of

action. In the second, the grounds are that the summary judgment evidence

establishes the common law elements of an action.

1108

In response to the ground

1102. Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299, 303 (Tex. App.—

Houston [14th Dist.] 1987, writ ref’d n.r.e.); Magnolia Fruit & Produce Co. v. Unicopy Corp. of

Tex., 649 S.W.2d 794, 796 (Tex. App.—Tyler 1983, writ dism’d). But see Bruce v. McAdoo, 531

S.W.2d 354, 356 (Tex. Civ. App.—El Paso 1975, no writ) (holding that an “amended

answer . . . presented more than four years after the original answer and more than a year after the

first amended answer” was not timely and was therefore improper).

1103. See Magnolia Fruit & Produce Co., 649 S.W.2d at 797–98. Texas Rule of Civil Procedure

63 concerns amendments and responsive pleadings, including time restrictions.

1104. Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249, 251 (Tex. Civ. App.—

Fort Worth 1981, no writ).

1105. Id. at 253 (emphasis added) (quoting Zemaco, Inc. v. Navarro, 580 S.W.2d 616, 620 (Tex.

Civ. App.—Tyler 1979, writ dism’d w.o.j.)); see Notgrass v. Equilease Corp., 666 S.W.2d 635, 639

(Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (requiring the denial to be present in an

answer).

1106. Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); Norcross v.

Conoco, Inc., 720 S.W.2d 627, 629 (Tex. App.—San Antonio 1986, no writ).

1107. See United Bus. Machs. v. Entm’t Mktg., Inc., 792 S.W.2d 262, 263–64 (Tex. App.—

Houston [1st Dist.] 1990, no writ).

1108. Pat Womack, Inc. v. Weslaco Aviation, Inc., 688 S.W.2d 639, 641 (Tex. App.—Corpus

Christi 1985, no writ).

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that the elements of the suit are proved as a matter of law, the nonmovant should

show that there is a fact issue. For example, in Matador Production Co. v.

Weatherford Artificial Lift Systems, Inc.,

1109

the court of appeals held that the

nonmovant created a fact issue regarding the amount of materials that was

actually provided versus the amount of materials the movant claimed it provided

and for which it charged the nonmovant.

Sworn accounts are an exception to the general rule that pleadings

are not summary judgment proof. “When a defendant fails to file a

verified denial to a sworn account, the sworn account is received as prima

facie evidence of the debt and the plaintiff as summary judgment movant

is entitled to summary judgment on the pleadings.”

1110

Rule 185 also

provides that a systematic record, properly verified, “shall be taken as

prima facie evidence thereof, unless the party resisting such claim shall

file a written denial, under oath.”

1111

Thus, if the affidavit supporting the

sworn account petition tracks the language of Rule 185 and meets the

personal knowledge requirement of Rule 166a(f), it generally has been

considered proper summary judgment proof in the absence of a sufficient

answer to the original petition.

1112

If a defendant files a verified denial, the plaintiff must submit common law

proof of its case.

1113

The necessary common law elements of an action are:

“(1) that there was a sale and delivery of merchandise, (2) that the amount of the

account is just, that is, that the prices are charged in accordance with an

agreement, they are the usual, customary and reasonable prices for that

merchandise, and (3) that the amount is unpaid.”

1114

If the resisting party does

not support its claim with an affidavit, the movant is not forced to put on proof

of its claim in a summary judgment proceeding and is entitled to summary

judgment on the pleadings.

1115

1109. Matador Prod. Co. v. Weatherford Artificial Lift Sys., Inc., 450 S.W.3d 580, 590 (Tex.

App.—Texarkana 2014, pet. denied).

1110. Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.—Dallas

2003, pet. denied).

1111. TEX. R. CIV. P. 185.

1112. TEX. R. CIV. P. 166a(f) (requiring affidavits to be made on personal knowledge).

Although specifically authorized to make an affidavit under Rule 185, attorneys should do so only

if they possess personal knowledge of the facts set forth in the affidavit. TEX. R. CIV. P. 185.

1113. See Pat Womack, Inc., 688 S.W.2d at 641.

1114. Id.; see also Worley v. Butler, 809 S.W.2d 242, 245 (Tex. App.—Corpus Christi 1990,

no writ) (applying these elements in a suit for attorney’s fees).

1115. Cespedes v. Am. Express-CA, No. 13-05-385-CV, 2007 WL 1365441, at *5–6 (Tex.

App.—Corpus Christi May 10, 2007, no pet.); see Schum v. Munck Wilson Mandala, LLP, 497

S.W.3d 121 (Tex. App.—Texarkana 2016, no pet.) (reversing a summary judgment in a suit on a

sworn account because material fact issues remained regarding whether fees and expense sought

were incurred pursuant to an attorney engagement agreement).

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A second affidavit in addition to that attached to the plaintiff’s petition

may be advisable to support a motion for summary judgment on a sworn

account. This second affidavit should set forth, once again, the allegations of

the sworn account petition. Strictly speaking, this additional affidavit is

unnecessary if the answer on file is insufficient under Rules 185 and

93(10).

1116

If the answer is sufficient under these rules, summary judgment is

not precluded, but a second affidavit must be filed substantiating the account

as a business record under Texas Rule of Evidence 803(6).

1117

The attorney opposing a summary judgment in a suit based on a sworn

account should immediately determine if a sworn denial in accordance with

Rules 93(10) and 185 is already on file. If not, he or she should file one. It is

sufficient to file a sworn answer denying the account that is the “foundation

of the plaintiff’s action.”

1118

The filing of an answer in strict compliance with

Rules 93(10) and 185 does not, however, preclude the need to also file a written

response to a motion for summary judgment.

1119

As a matter of practice,

attorneys should always file a written response to all motions for summary

judgment.

1120

According to one commentator: “Motions for summary judgment will

help ferret out those who file answers to buy time from those with genuine

defenses and are also great discovery tools. Well drawn summary judgments

often require the debtors’ attorneys to have serious talks with their clients

about fees, resulting in serious settlement negotiations.”

1121

B. Suits on Written Instruments

Suits on written instruments such as contracts, promissory notes,

guarantees, deeds, and leases are commonly the subjects of motions for

summary judgment.

1116. TEX. R. CIV. P. 93(10); Special Marine Prods., Inc. v. Weeks Welding & Constr., Inc.,

625 S.W.2d 822, 827 (Tex. App.—Houston [14th Dist.] 1981, no writ) (noting that the state of the

pleadings and the defendant’s failure to file a sufficient sworn denial under Rule 185 provide the

basis for summary judgment, not the plaintiff’s additional sworn affidavit under Rule 166a).

1117. See TEX. R. EVID. 803(6).

1118. TEX. R. CIV. P. 93(10); see also TEX. R. CIV. P. 185 (allowing the filing of a written denial

that states each and every item that constitutes the foundation of any action or defense as either just

and true or unjust and untrue).

1119. See supra Part 1.VII.A.3 (discussing responding to and opposing a motion for summary

judgment).

1120. See supra Parts 1.I.A.1–2, IV.AC (discussing the general requirements and strategy

involved in moving for and opposing summary judgment).

1121. DONNA BROWN, Anatomy of the Collection Process: An Overview with Efficiency Tips

from a Seasoned Collections Lawyer, in STATE BAR OF TEXAS CONTINUING LEGAL EDUCATION

PROGRAM, NUTS & BOLTS OF COLLECTIONS AND CREDITORS’ RIGHTS COURSE 1, 8 (2008).

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A summary judgment is proper in cases involving the interpretation of a

writing that is determined to be unambiguous.

1122

The courts may also

determine issues of law implicated in written instruments. Thus, for

example, in Moayedi v. Interstate 35/Chisam Road L.P.,

1123

the supreme

court determined for the first time the level of specificity required to

waive Section 51.003 of the Property Code, the statutory right to offset

for the deficiency owed between fair market value and the foreclosure

price of property.

1124

The court looks to the language of the written instrument in

interpreting written instruments. In a case sure to gratify English majors,

the court relied on a comma to “bolster” its interpretation of a deed. In

U.S. Shale Energy II, LLC v. Laborde Properties, L.P., the court noted

that a disputed deed provision contained a clause that was offset by a

comma, which indicated it was a nonrestrictive dependent clause. The

court was careful to explain that it did “not imply that the use of a single

comma is the dispositive consideration here.”

1125

1. Contracts

“Whether a contract is ambiguous is a question of law for the court to

decide.”

1126

If a contract is worded in such a manner that it can be given a definite

or certain legal meaning, then it is not ambiguous.

1127

Instead, a contract is

ambiguous if it is susceptible to more than one reasonable interpretation.

1128

Words used in an unambiguous contract are given their plain and ordinary

meaning unless the instrument shows that the parties used the words in a

technical or different sense.

1129

If the court determines that a contract is

1122. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (per curiam). Contract

ambiguity creates a fact issue concerning the parties’ intent that must be decided by a fact finder.

Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979); Hackberry Creek Country Club, Inc. v.

Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet. denied)

(citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)); see also R & P Enters. v. LaGuarta,

Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980) (“The question of whether a contract is

ambiguous is one of law for the court.”).

1123. Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1 (Tex. 2014); Kachina Pipeline

Co., Inc. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015).

1124. Moayedi, 438 S.W.3d at 5–6.

1125. U.S. Shale Energy II, LLC v. Laborde Props., L.P., 551 S.W.3d 148, 154 (Tex. 2018).

1126. Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000).

1127. N. Shore Energy L.L.C. v. Harkins, 501 S.W.3d 598, 602 (Tex. 2016) (per curiam); J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Am. Mfrs. Mut. Ins. Co. v. Schaefer,

124 S.W.3d 154, 157 (Tex. 2003); Nat’l Union Fire Ins. Co. of Pittsburgh v. CBI Indus., Inc., 907

S.W.2d 517, 520 (Tex. 1995) (per curiam); Coker, 650 S.W.2d at 393.

1128. Milner v. Milner, 361 S.W.3d 615, 619 (Tex. 2012); J.M. Davidson, Inc., 128 S.W.3d at

231.

1129. Consol. Petroleum, Partners, I, LLC v. Tindle, 168 S.W.3d 894, 899 (Tex. App.—Tyler

2005, no pet.).

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unambiguous, the interpretation of the contract is a question of law for the

court.

1130

Courts may “consult the facts and circumstances surrounding a

negotiated contract’s execution to aid in the interpretation of its language.”

1131

Thus, it may consider “objectively determinable facts and circumstances that

contextualize the parties’ transaction” and “inform” the meaning of the language

used.

1132

But, the courts may not use surrounding circumstances to alter or

contradict an unambiguous contract’s terms.

1133

Because ambiguity is a legal question, a court may hold that an agreement

is ambiguous even though both parties contend the contract is unambiguous.

1134

An ambiguity does not arise “merely because parties to an agreement proffer

different interpretations of a term.”

1135

An ambiguity in a contract may be either

patent or latent.

1136

When the writing contains an ambiguity, the granting of a

motion for summary judgment is improper because the interpretation of the

instrument becomes a fact issue.

1137

A summary judgment may also be used to

determine the legal meaning of contractual language. For example, in Epps v.

Fowler,

1138

the supreme court considered whether a defendant is a prevailing

party entitled to attorney’s fees when the plaintiff nonsuits a claim without

prejudice.

1139

Whether a covenant not to compete is enforceable is a question of

law that may be determined by summary judgment.

1140

1130. Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex. 2014).

1131. Murphy Exp. & Prod. Co.-USA v. Adams, 560 S.W.3d 105, 109 (Tex. 2018) (citing URI,

Inc. v. Kleberg County, 543 S.W.3d 755, 757 (Tex. 2018)).

1132. Id.

1133. Id.

1134. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 231 (Tex. 2003).

1135. DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999).

1136. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282–83 (Tex. 1996) (per

curiam) (distinguishing a patent ambiguity as one that is “evident on the face of the contract” from

a latent ambiguity as one that exists not on the face of the contract but in the contract’s failure “by

reason of some collateral matter when it is applied to the subject matter with which it deals”).

1137. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979); Zurich Am. Ins. Co. v. Hunt Petroleum

(AEC), Inc., 157 S.W.3d 462, 465 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Donahue v.

Bowles, Troy, Donahue, Johnson, Inc., 949 S.W.2d 746, 753 (Tex. App.—Dallas 1997, writ

denied).

1138. Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011).

1139. Id. at 864. The court held that:

[S]uch a defendant is not a prevailing party unless the court determines, on the

defendant’s motion, that the plaintiff took the nonsuit in order to avoid an unfavorable

judgment [and] . . . that, because a nonsuit with prejudice immediately alters the legal

relationship between the parties by its res judicata effect, a defendant prevails when the

plaintiff nonsuits with prejudice.

Id.

1140. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009).

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In construing a written contract, the court’s primary concern is to determine

the parties’ true intentions, as expressed in the instrument.

1141

The court’s

primary concern is to “construe contracts from a utilitarian standpoint bearing in

mind the particular business activity south to be served and avoiding

unreasonable constructions when possible and proper.”

1142

Consistent with this approach, the supreme court affirmed a summary

judgment that enforced a settlement agreement based on the court’s

determination that there was an “immaterial variation” between the offer and

acceptance.

1143

The offer was “to pay a total sum of $90,000 to settle all claims

asserted or which could have been asserted by [the plaintiff],” while the

plaintiff’s letter had accepted only the defendant’s “offer to settle all monetary

claims asserted against [the defendant].”

1144

2. Deeds

Construction of an unambiguous deed is a question of law to be resolved

by the court.

1145

As the supreme court has noted: “As is often the case, the parties

here agree that the deed in question is unambiguous but diverge on its proper

interpretation.”

1146

When construing an unambiguous deed, the duty of the court

is to determine the intent of the parties from all of the language within the four

corners of the instrument.

1147

All parts of the deed are to be harmonized,

construing the instrument to give effect to all of its provisions.

1148

The court must

discern the parties’ intent from the deed’s language in its entirety “without

reference to matters of mere form, relative positions of descriptions,

technicalities, or arbitrary rules.”

1149

3. Guaranty Instruments

In a suit on a guaranty instrument, a court must construe

unambiguous guaranty agreements as any other contract.

1150

A court may

grant a summary judgment only if the right to it is established in the record

1141. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (citing R & P Enters.

v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980)); City of Pinehurst v. Spooner

Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968).

1142. Plains Exp. & Prod. Co. v. Torch Energy Advisors Ic., 473 S.W.3d 296, 305 (Tex. 2015)

(quoting Reilly v. Rangers Mgmt., Inc., 727 S.W. 2d 527, 530 (Tex. 1987)).

1143. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 514 (Tex. 2014).

1144. Id. at 511.

1145. Luckel, 819 S.W.2d at 461.

1146. U.S. Shale Energy II, LLC v. Laborde Props., L.P., 551 S.W.3d 148, 151 (Tex. 2018).

1147. Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017).

1148. Id. at 462.

1149. Stribling v. Millican DPC Partners, LP, 458 S.W.3d 17, 20 (2015) (per curiam) (citing

Sun Oil Co. v. Burns, 84 S.W.2d 442, 444 (1935)).

1150. Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 7 (Tex. 2014).

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as a matter of law.

1151

“If the written instrument is so worded that it can

be given a certain or definite legal meaning or interpretation, then it is not

ambiguous and the court will construe the contract as a matter of law.”

1152

4. Promissory Notes

In promissory note cases, the movant should establish that “(1) there is

a note; (2) he is the legal owner and holder of the note; (3) the defendant is

the maker of the note; and (4) a certain balance is due and owing on the

note.”

1153

The supporting affidavits generally are provided by the owner and

holder of the note, such as a corporate or bank officer.

1154

An example of such

a case is Batis v. Taylor Made Fats, Inc., in which the court found the

plaintiff’s summary judgment proof, which consisted of an affidavit by the

business records custodian, was sufficient to support a summary

judgment.

1155

Failure to attach a copy of the promissory note in a summary

judgment motion in a suit on that note is fatal to the summary judgment.

1156

A photocopy of a note attached to the affidavit of the holder who swears that

it is a true and correct copy of the note is sufficient as a matter of law to prove

the status of owner and holder of the note absent controverting summary

judgment evidence.

1157

In a suit on a promissory note, the plaintiff must establish the amount

due on the note.

1158

To establish the amount due under the note, generally an

affidavit that sets forth the balance due on a note is sufficient.

1159

Detailed

proof of the balance is not required.

1160

Nonetheless, the summary judgment

1151. W. Bank-Downtown v. Carline, 757 S.W.2d 111, 114 (Tex. App.—Houston [1st Dist.]

1988, writ denied).

1152. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

1153. Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.—Houston [14th Dist.] 1994, no

writ).

1154. See, e.g., Jackson T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex.

App.—Dallas 1983, writ ref’d n.r.e.) (referring to an affidavit of the vice president of a title company

that stated the company was the holder of the note); Batis v. Taylor Made Fats, Inc., 626 S.W.2d

605, 606–07 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.).

1155. Batis, 626 S.W.2d at 606–07.

1156. See Sorrells v. Giberson, 780 S.W.2d 936, 937–38 (Tex. App.—Austin 1989, writ denied)

(holding that the note could not serve as the basis for summary judgment because the appellee failed

to attach a copy of it to the affidavit filed in support of the motion for summary judgment).

1157. Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (per curiam).

1158. See, e.g., Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 99

S.W.3d 349, 354 (Tex. App.—Fort Worth 2003, no pet.); Commercial Servs. of Perry, Inc. v.

Wooldridge, 968 S.W.2d 560, 564 (Tex. App.—Fort Worth 1998, no pet.).

1159. Martin v. First Republic Bank, Fort Worth, N.S., 799 S.W.2d 482, 485 (Tex. App.—Fort

Worth 1990, writ denied).

1160. Hudspeth v. Investor Collection Servs. Ltd. P’ship, 985 S.W.2d 477, 479 (Tex. App.—

San Antonio 1998, no pet.).

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evidence must clearly establish the amount due on the note.

1161

“[W]here an

affidavit submitted in support of summary judgment lumps the amounts due

under multiple notes with varying terms and provisions, an ambiguity can

arise as to the balance due, precluding summary judgment.”

1162

5. Application of the Parol Evidence Rule

In cases based on written instruments, a common defense both at

trial and in response to motions for summary judgment is an allegation

of contemporaneous representations (parol evidence) that would entitle

the defendant to modify the written terms of the note or contract.

1163

The

parol evidence rule generally intends to keep out extrinsic evidence of

oral statements or representations relative to the making of a contractual

agreement when that agreement is valid and complete on its face.

1164

Parties cannot rely on parol evidence to give the contract a different meaning

from that in its language, to alter or contradict the terms of the agreement, to

make the language say what it unambiguously does not say or to show that the

parties’ meant something other than what was in their agreement.

1165

Courts

“may not rely on evidence of surrounding circumstances to make the

language [of a contract] say what it unambiguously does not say.”

1166

In general, a written instrument that is clear and express in its terms

cannot be varied by parol evidence.

1167

Parol evidence cannot be used to

supply the essential requirements to satisfy the statute of frauds.

1168

1161. See Bailey, Vaught, Robertson & Co. v. Remington Invs., Inc., 888 S.W.2d 860, 867 (Tex.

App.—Dallas 1994, no writ) (holding that summary judgment evidence failed to establish the

applicable rate of interest on a promissory note and therefore failed to establish the total amount

due).

1162. FFP Mktg. Co. v. Long Lane Master Trust IV, 169 S.W.3d 402, 411–12 (Tex. App.—Fort

Worth 2005, no pet.); see also Gen. Specialties, Inc. v. Charter Nat’l Bank-Houston, 687 S.W.2d

772, 774 (Tex. App.—Houston [14th Dist.] 1985, no writ) (holding that an affidavit stating a lump

sum balance due for seven promissory notes created an ambiguity and precluded summary

judgment).

1163. See, e.g., Carter v. Allstate Ins. Co., 962 S.W.2d 268, 270 (Tex. App.—Houston [1st Dist.]

1998, pet. denied) (holding that the existence of an oral agreement created a genuine issue of

material fact that precluded summary judgment); Hallmark v. Port/Cooper-T. Smith Stevedoring

Co., 907 S.W.2d 586, 590 (Tex. App.—Corpus Christi 1995, no writ) (“The parol evidence rule

does not preclude enforcement of prior contemporaneous agreements which are collateral to, not

inconsistent with, and do not vary or contradict the express or implied terms or obligations

thereof.”).

1164. TEX. BUS. & COM. CODE ANN. § 2.202 (West 2017). See generally Randy Wilson, Parol

Evidence in Breach of Contract Cases, ADVOC., Summer 2007, at 44.

1165. See URI Inc. v. Kleberg County, 543 S.W.3d 755, 764 (Tex. 2018).

1166. First Bank v. Brummit, 519 S.W.3d 95, 110 (Tex. 2017).

1167. See Wilson, supra note 1164, at 44–46 (analyzing the admissibility of parol evidence).

1168. Ardmore, Inc. v. Rex Grp., Inc., 377 S.W.3d 45, 56 (Tex. App.—Houston [1st Dist.] 2012,

no pet.) (citing Wilson v. Fisher, 188 S.W.2d 150, 152 (Tex. 1945)). But see infra Part 1.VII.B.2

(Exception to the Parol Evidence Rule).

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6. Exception to the Parol Evidence Rule

Parol evidence “can be used to ‘explain or clarify the essential terms

appearing in the’ contract.”

1169

When a contract contains ambiguity, courts can

admit extraneous evidence to determine the true meaning of the contract.

1170

Parol evidence does not prohibit courts from considering extrinsic evidence of

facts and circumstances surrounding the contract’s execution as “an aid in

construction of the contract’s language,” but the evidence may only “give the

words of a contract a meaning consistent with that to which they are reasonably

susceptible, i.e. to ‘interpret’ contractual terms.”

1171

In URI, Inc. v. Kleberg

County,

1172

the supreme court offered the following example: Extrinsic evidence

can be consulted to give meaning to the phrase “the green house on Pecan

Street,” but it cannot be used to look beyond the language in the contract to show

the parties’ motive and intentions.

1173

Another important exception to the parol evidence rule permits extrinsic

evidence to show fraud in the inducement of a written contract.

1174

The Texas

Supreme Court addressed this problem in Town North National Bank v.

Broaddus.

1175

In that case, three parties signed a note as obligors.

1176

After

default, the bank brought suit against the obligors.

1177

The bank then moved

for summary judgment.

1178

Defendants alleged that a bank officer told them

1169. Ardmore, 377 S.W.3d at 56–57 (quoting Wilson, 188 S.W.2d at 152). The Statute of

Frauds provides that a promise or agreement within its terms is unenforceable unless “the promise

or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged

with the promise or agreement or by someone lawfully authorized to sign for him.” TEX. BUS. &

COM. CODE ANN. § 26.01(a) (general statute of frauds provisions); see also TEX. BUS. & COM.

CODE ANN. § 2.201(a) (sale of goods for the price of $500 or more); Padilla v. LaFrance, 907

S.W.2d 454, 460 (Tex. 1995) (“To satisfy the statute of frauds, ‘there must be a written

memorandum which is complete within itself in every material detail, and which contains all of the

essential elements of the agreement, so that the contract can be ascertained from the writings without

resorting to oral testimony.’” (quoting Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978))).

1170. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450–51 (Tex. 2008) (per curiam).

1171. URI, Inc. v. Kleberg County, 543 S.W.3d 755, 765 (Tex. 2018) (first quoting Sun Oil Co.

v. Madeley, 626 S.W.3d, 726, 731 (Tex. 1981); then quoting Nat’l Union Fire Ins. v. CBI Indus.,

Inc., 907 S.W.2d 517, 521 (Tex. 1995)).

1172. URI, Inc. v. Kleberg County, 543 S.W.3d 755 (Tex. 2018),

1173. Id. at 767.

1174. Town N. Nat’l Bank v. Broaddus, 569 S.W.2d 489, 491 (Tex. 1978) (stating that parol

evidence is admissible to show that the maker of a note was induced by fraud); Friday v. Grant Plaza

Huntsville Assocs., 713 S.W.2d 755, 756 (Tex. App.—Houston [1st Dist.] 1986, no writ) (stating

that a successful prima facie showing of fraud in the inducement is an exception to the parol

evidence rule); Albritton Dev. Co. v. Glendon Invs., Inc., 700 S.W.2d 244, 246 (Tex. App.—

Houston [1st Dist.] 1985, writ ref’d n.r.e.) (stating that the terms of a negotiable instrument cannot

be varied by parol evidence without a showing of a fraudulent scheme or trickery).

1175. Town N. Nat’l Bank, 569 S.W.2d at 491.

1176. See id. at 490.

1177. Id.

1178. Id.

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that they would not be held liable on the note.

1179

This misrepresentation, they

argued, created fraud in the inducement.

1180

The defendants argued that this

alleged fraud raised a question of fact precluding a grant of summary

judgment.

1181

The court held that extrinsic evidence is admissible to show fraud in the

inducement of a note only if, in addition to the showing that the payee

represented to the maker he would not be liable on such note, there is a

showing of some type of “trickery, artifice, or device employed by the

payee.”

1182

“[A] negotiable instrument which is clear and express in its terms

cannot be varied by parol agreements or representations of a payee that a

maker or surety will not be liable thereon.”

1183

C. Statute of Limitations/Statutes of Repose

Summary judgment may be proper in cases where the statute of

limitations

1184

is pleaded as a bar to recovery.

1185

The statute of limitations is

an affirmative defense for which the defendant must establish all the elements

as a matter of law.

1186

The movant for a summary judgment on the basis of

the running of the statute of limitations assumes the burden of showing as a

matter of law that the suit is barred by limitations.

1187

[T]he defendant must (1) conclusively prove when the cause of action

accrued, and (2) negate the discovery rule, if it applies and has been

pleaded or otherwise raised, by proving as a matter of law that there is

no genuine issue of material fact about when the plaintiff discovered,

or in the exercise of reasonable diligence should have discovered the

nature of its injury.

1188

1179. See id. at 490–91 (illustrating how the bank officer indicated the dismissed third party

would be responsible for the note).

1180. Id. at 491.

1181. Id.

1182. Id. at 494.

1183. Id. at 491.

1184. See supra Part 1.III.A.3 (discussing affirmative defenses).

1185. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.

1999); see also Hall v. Stephenson, 919 S.W.2d 454, 464–65 (Tex. App.—Fort Worth 1996, writ

denied) (holding that summary judgment was proper when the suit was filed outside the statute of

limitations); Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 412 (Tex. App.—Corpus Christi

1988, no writ) (stating that a party “by moving for summary judgment on the basis of the running

of limitations, assumed the burden of showing as a matter of law that limitations barred the suit”).

1186. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); KPMG Peat

Marwick, 988 S.W.2d at 748.

1187. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997) (per curiam);

Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983) (per curiam).

1188. KPMG Peat Marwick, 988 S.W.2d at 748; see also Diversicare, 185 S.W.3d at 846;

Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); Burns v. Thomas, 786 S.W.2d 266, 267

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The discovery rule must be negated by the defendant movant only if it

is raised.

1189

However, if the plaintiff does not plead it, but raises the

discovery rule for the first time in his or her summary judgment response, the

defendant’s failure to object will result in trying the issue by consent.

1190

Fraudulent concealment tolls or suspends the running of the statute of

limitations.

1191

A party asserting fraudulent concealment as an affirmative

defense to statute of limitations must raise the issue and come forward with

summary judgment evidence creating a fact issue on each element of

fraudulent concealment.

1192

Any of the plaintiff’s claims or defenses pleaded in response to the

defendant’s affirmative defense on which the plaintiff would have the

burden of proof at trial, including the discovery rule, fraudulent

concealment, or tolling suspension provision, may be properly challenged

by a no-evidence summary judgment motion. “In the summary judgment

context, the burden is on the plaintiff asserting an Open Courts exception

to the statute of limitations to raise a fact issue demonstrating that she did

not have a reasonable opportunity to discover the alleged wrong and bring

suit before the limitations period expired.”

1193

Even when conclusively

established, a plaintiff may invoke equitable estoppel as an affirmative

defense in avoidance of a defendant’s statute of limitations defense.

1194

The non-moving plaintiff bears the burden of establishing its defense.

1195

Once the movant established that the action is barred, the nonmovant must

present summary judgment evidence raising a fact issue on each element

of avoidance.

1196

“If the movant establishes that the statute of limitations bars the action, the

nonmovant must then adduce summary judgment proof raising a fact issue in

avoidance of the statute of limitations.”

1197

The relation back doctrine may save

(Tex. 1990); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n.2 (Tex. 1988); McMahan

v. Greenwood, 108 S.W.3d 467, 492 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

1189. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 646 (Tex. 2000); In re Estate of

Matejek, 960 S.W.2d 650, 651 (Tex. 1997) (per curiam). The discovery rule applies to both common

law fraud and the DTPA. Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W.3d 52, 58 (Tex.

2013).

1190. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam).

1191. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69 (Tex. 2011); Winn v. Martin

Homebuilders, Inc., 153 S.W.3d 553, 557–58 (Tex. App.—Amarillo 2004, pet. denied). The same

rule applies to fraudulent inducement claims. See Hooks v. Samson Lone Star, Ltd. P’ship, 457

S.W.3d 52, 57 (Tex. 2015).

1192. KPMG Peat Marwick, 988 S.W.2d at 749.

1193. Walters v. Cleveland Reg’l Med. Ctr., 307 S.W.3d 292, 295 (Tex. 2010).

1194. See, e.g., ExxonMobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017).

1195. Id.

1196. Id.

1197. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (citing KPMG

Peat Marwick, 988 S.W.2d at 748).

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certain claims. The doctrine of relation back prevents a successful statute of

limitations claim if the amended petitions relate back to a timely filed claim that

does not arise from a wholly different transaction.

1198

The Texas Civil Practice

and Remedies Code provides that new facts or claims raised in a later pleading

relate back to a timely filed pleading and are not barred unless the amendment or

supplemental pleading “is wholly based on a new, distinct, or different

transaction or occurrence.”

1199

Thus, an original pleading tolls the limitations

period for claims asserted in a later, amended pleading if the amended pleading

does not allege a wholly new, distinct, or different transaction.

1200

“A

‘transaction’ is defined as a set of facts that gives rise to the cause of action [on

which it is premised].”

1201

If an exception to defective pleadings is not filed, the pleadings may

satisfy the statute of limitations.

1202

The question of diligence in effecting service when it occurs outside the

statute of limitations presents another example of shifting burdens at trial or

in a summary judgment proceeding. If a plaintiff files its petition within the

limitations period, but obtains service outside the limitations period, service

is valid only if the plaintiff exercised diligence in procuring service.

1203

If a

defendant affirmatively pleads limitations and shows that service has

occurred after the limitations deadline, the burden shifts to the plaintiff to

prove his diligence.

1204

Existence of due diligence in effecting service is usually a fact issue.

1205

However, summary judgment may be appropriate. To obtain summary

judgment on the ground that an action was not served within the applicable

limitations period, “the movant must show that, as a matter of law, diligence

was not used to effectuate service.”

1206

The movant may argue that the

plaintiff’s explanation of its efforts to obtain service demonstrates a lack of

diligence as a matter of law when “one or more lapses between service efforts

1198. Long v. State Farm Fire & Cas. Co., 828 S.W.2d 125, 127–28 (Tex. App.—Houston [1st

Dist.] 1992, writ denied) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 (West 1986),

disapproved of on other grounds by Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 518–19 (Tex. 1998)).

1199. TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 (West 2017).

1200. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 121 (Tex. 2004).

1201. Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 587

(Tex. App.—Austin 2007, pet. denied).

1202. See Sullivan v. Hoover, 782 S.W.2d 305, 306–07 (Tex. App.—San Antonio 1989, no writ)

(stating that a petition advising the defendant of the nature of the cause of action against him is all

that is needed to arrest the statute of limitations).

1203. Ashley v. Hawkins, 292 W.S.3d 175, 179 (Tex. 2009).

1204. Id.

1205. Prolx v. Wells, 238 S.W.3d 213, 215 (Tex. 2007).

1206. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam).

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are unexplained or patently unreasonable.”

1207

If the plaintiff’s explanation

for the delay raises a material fact issue concerning his diligence, the

summary judgment burden then shifts back to the defendant to conclusively

demonstrate why, as a matter of law, the plaintiff provided an insufficient

explanation.

1208

Summary judgment may also be appropriate in a case barred by a statute

of repose.

1209

A statute of repose differs from a traditional statute of

limitations. A traditional statute of limitations runs from the time that a cause

of action accrues, which is not later than when the party first sustains or

discovers an injury or damage.

1210

Statutes of repose typically provide a

definitive date beyond which an action cannot be filed.

1211

“[W]hile statutes

of limitations operate procedurally to bar the enforcement of a right, a statute

of repose takes away the right altogether, creating a substantive right to be

free of liability after a specified time.”

1212

Therefore, a statute of repose can

cut off a right of action before an injured party discovers or reasonably should

have discovered the defect or injury.

1213

The Texas statute of repose does not, however, bar an action based on

willful misconduct or fraudulent concealment in connection with the

performance of the construction or repair of an improvement to real

property.

1214

Thus, if the statute of repose period has expired, the nonmovant having

an affirmative defense of fraudulent concealment must present enough proof

to raise a fact issue; otherwise, summary judgment will be held proper.

1215

1207. Prolx, 238 S.W.3d at 216.

1208. Id. For examples of cases in which courts have found a lack of diligence as a matter of

law, see Shaw v. Lynch, No. 001-15-00040-CV, 2016 WL 1388986 (Tex. App.—Houston [1st

Dist.] Apr. 7, 2016, no pet.) (mem. op.) (holding that the movant did not conclusively establish that

plaintiff failed to exercise due diligence in having him served).

1209. See, e.g., Nathan v. Whittington, 408 S.W.3d 870, 876 (Tex. 2013) (per curiam); Zaragosa

v. Chemetron Invs., Inc., 122 S.W.3d 341, 345 (Tex. App.—Fort Worth 2003, no pet.) (concluding

that summary judgment was proper where the statute of repose barred the plaintiff’s products

liability claim).

1210. Lambert v. Wansbrough, 783 S.W.2d 5, 6 (Tex. App.—Dallas 1989, writ denied).

1211. Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003).

1212. Methodist Healthcare Sys. of San Antonio, Ltd., v. Rankin, 307 S.W.3d 283, 287 (Tex.

2010) (quoting Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 866 (Tex. 2009)).

1213. See Galbraith Eng’g Consultants, Inc., 290 S.W.3d at 866 (“Repose then differs from

limitations in that repose not only cuts off rights of action after they accrue, but can cut off rights of

action before they accrue.”).

1214. TEX. CIV. PRAC. & REM. CODE ANN. § 16.009(e)(3) (West 2017); see also Ryland Grp.,

Inc. v. Hood, 924 S.W.2d 120, 121–22 (Tex. 1996) (per curiam) (holding that the statute of repose

applied because a witness’s affidavit did not raise a fact issue as to the defendant’s possible willful

and intentional misconduct).

1215. See Ryland Grp., Inc., 924 S.W.2d at 121–22.

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D. Res Judicata/Collateral Estoppel

Summary judgment is also proper in a case barred by res judicata or

collateral estoppel.

1216

Res Judicata prevents the relitigation of a claim or

cause of action that has been finally adjudiciated, as well as related

matters that, with the use of diligence, should have been litigated in the

earlier suit.

1217

Under res judicata (i.e., claim preclusion), a judgment in a

first suit precludes a second action by the parties and their privies on

matters actually litigated and on causes of action or defenses arising out

of the same subject matter that might have been litigated in the first

suit.

1218

An affirmative defense, res judicata requires the party asserting it

to prove “(1) a prior final determination on the merits by a court of

competent jurisdiction; (2) identity of parties or those in privity with

them; and (3) a second action based on the same claims as were or could

have been raised in the first action.”

1219

Relitigation of an issue will be barred by collateral estoppel (i.e., issue

preclusion) if: “(1) the facts sought to be litigated in the first action were fully

and fairly litigated in the prior action; (2) those facts were essential to the

judgment in the first action; and (3) the parties were cast as adversaries in the

first action.”

1220

1216. See, e.g., Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Barr v.

Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 627–28 (Tex. 1992) (stating that

res judicata prevents the relitigation of a claim or a cause of action that has been finally adjudicated

and may invoke a motion for summary judgment); Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392

S.W.3d 729, 735 n.7 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“When a party seeks to

dispose of claims barred by res judicata, collateral estoppel law of the case, and similar theories, it

should file a motion for summary judgment.”). A determination of fact or law by a lower trial court,

including a justice of the peace court, is not res judicata or basis for collateral estoppel in a district

court proceeding. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 919 n.5 (Tex.

2013) (citing TEX. CIV. PRAC. & REM. CODE § 31.004(a), (c)).

1217. Barr, 837 S.W.2d at 628.

1218. Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984). Although closely

related, the doctrines of res judicata and collateral estoppel are separately applicable in distinct

situations. “Collateral estoppel . . . is more narrow than res judicata in that it only precludes the

relitigation of identical issues of facts or law that were actually litigated and essential to the

judgment in a prior suit.” McKnight v. Am. Mercury Ins. Co., 268 S.W.3d 793, 798 n.5 (Tex.

App.—Texarkana 2008, no pet.). Res judicata, which is more broadly applicable, bars a plaintiff

from bringing another action on any claims that were actually litigated or that could have been

litigated in an original action. Id. at 797–98. Despite these clear differences, res judicata is often

cited generically in reference to both concepts. See Barnes v. United Parcel Serv., Inc., 395 S.W.3d

165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

1219. Joachim, 315 S.W.3d at 862; Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.

1996); see TEX. R. CIV. P. 94 (identifying res judicata as an affirmative defense).

1220. Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (quoting Bonniwell

v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984)); see also Sysco Food Servs., Inc. v.

Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

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The “transactional approach” applies to res judicata.

1221

In other words,

a later suit will be barred if it arises out of the same subject matter of a

previous suit and, through the exercise of diligence, could have been litigated

in an earlier suit.

1222

Issue preclusion or collateral estoppel, as distinguished

from res judicata, applies to “any prior adjudication of an issue in another

action that is determined to be sufficiently firm to be accorded conclusive

effect.”

1223

The court in Acker v. City of Huntsville stated, “The seminal test

for finality sufficient to justify issue preclusion is whether the decision in the

prior case is procedurally definite—was it adequately deliberated and firm,

even if not final in the sense of forming a basis for a judgment already

entered.”

1224

Findings by a federal court beyond those necessary to make a decision are

not “actually litigated” or “necessary to the outcome” so they would not form the

basis for collateral estoppel or res judicata.

1225

A partial summary judgment that is interlocutory and non-appealable is

not final and cannot support a plea of res judicata.

1226

But, a partial summary

judgment may be proper on an issue precluded by collateral estoppel.

1227

When filing or answering a motion for summary judgment based on res

judicata or collateral estoppel, the earlier judgment should be attached to the

motion.

1228

This is an example of one of the limited instances when pleadings

are proper summary judgment evidence.

1221. Barr, 837 S.W.2d at 631 (holding that the scope of res judicata can extend to causes of

action or defenses which arise out of the same subject matter litigated in the first suit); see also

Compania Financiara Libano, S.A. v. Simmons, 53 S.W.3d 365, 367 (Tex. 2001) (per curiam).

1222. Barr, 837 S.W.2d at 631.

1223. Acker v. City of Huntsville, 787 S.W.2d 79, 82 (Tex. App.—Houston [14th Dist.] 1990,

no writ) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13 (1982)); see also Eagle Props.,

Ltd., 807 S.W.2d at 721 (explaining the rule of collateral estoppel in the context of due process)

(quoting Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971)).

1224. Acker, 787 S.W.2d at 82.

1225. Shell Pipeline Corp. v. Coastal States Trading, Inc., 788 S.W.2d 837, 843 (Tex. App.—

Houston [1st Dist.] 1990, writ denied), disapproved of on other grounds by Johnson & Higgins of

Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998); see also Flippin v. Wilson State

Bank, 780 S.W.2d 457, 459 (Tex. App.—Amarillo 1989, writ denied) (discussing the elements of

res judicata under federal law); Allen v. Port Drum Co., 777 S.W.2d 776, 777–78 (Tex. App.—

Beaumont 1989, writ denied) (stating the federal requirements to barring earlier judgments under

the doctrine of res judicata).

1226. Mower v. Boyer, 811 S.W.2d 560, 562 (Tex. 1991) (noting that the interlocutory partial

summary judgment was not final because expressly leaving open the issue of consideration did not

have a res judicata effect).

1227. See Barr, 837 S.W.2d at 628 (“Issue preclusion, or collateral estoppel, prevents

relitigation of particular issues already resolved in a prior suit.”).

1228. Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 94 (Tex. App.—Houston [1st Dist.]

1991, no writ); Chandler v. Carnes Co., 604 S.W.2d 485, 486 (Tex. Civ. App.—El Paso 1980, writ

ref’d n.r.e.) (stating that a certified copy of a prior judgment must be attached to a motion for

summary judgment to be properly based on the doctrine of res judicata).

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E. Equitable Actions

In a case governed by equitable principles, summary judgment presents

more potential difficulties than in the usual summary judgment case because

there are no clear guidelines for determining what is a material fact.

1229

The main

guiding principle in equitable actions is that an unfair or unjust result should be

prevented.

1230

While summary judgment may occasionally be appropriate in

equity cases, it is not appropriate “where the summary judgment record does not

fully develop the facts on which the trial court’s equitable discretion must be

exercised, and where the facts that are developed, though uncontroverted, can

give rise to more than one reasonable inference.”

1231

F. Defamation Actions

Defamation actions are often resolved by summary judgment, not

only because of the strong constitutional protections that apply, but also

because many of the issues that determine whether summary judgment

disposition is proper have been held to be matters of law. It is necessary

to understand the elements and fundamentals of defamation law before

analyzing these cases in the context of summary judgment practice.

Unlike most summary judgment actions, Texas law allows an

interlocutory appeal from a denial of a summary judgment based on a

claim against the media arising under the free speech or free press clauses

of the U.S. or Texas constitutions.

1232

The standards for reviewing

summary judgments in defamation actions are the same as for traditional

summary judgments.

1233

The constitutional concerns over defamation do

not affect summary judgment standards of review.

1234

1229. Fleetwood v. Med Ctr. Bank, 786 S.W.2d 550, 556 (Tex. App.—Austin 1990, writ

denied).

1230. See Johnson v. Cherry, 726 S.W.2d 4, 8 (Tex. 1987) (“The equitable power of the court

exists to do fairness . . . .”).

1231. Fleetwood, 786 S.W.2d at 557.

1232. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (West 2017) (authorizing

interlocutory appeal from denial of summary judgment based on a claim against or defense by a

member of the media); see also KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779, 786 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied) (“The legislature has enacted [Section 51.014(a)(6)]

to eliminate the chilling effect that the threat of extended litigation has upon the exercise of the

protections secured by the First Amendment.”); supra Part 1.V.B (discussing appealing summary

judgments and the exceptions for government immunity and media defendants).

1233. Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.—Austin 2007,

pet. denied); Carabajal v. UTV of San Antonio, Inc., 961 S.W.2d 628, 630 (Tex. App.—San Antonio

1998, pet. denied) (citing Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)).

1234. Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013).

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1. Applicable Law

The elements of a defamation claim include “(1) the publication of a

false statement of fact to a third party, (2) that was defamatory concerning

the plaintiff, (3) with the requisite degree of fault, and (4) damages, in

some cases.”

1235

In Texas, libel is a defamatory statement in written form,

published to one or more third persons, tending to injure a living person’s

reputation and, as a result, exposing the person to public hatred, contempt,

or ridicule, or causing financial injury.

1236

Where the plaintiff is a public

figure, the U.S. Constitution requires more than simple negligence; to

prevail, a libel plaintiff must prove “actual malice,” in the constitutional

sense.

1237

To publish with actual malice, the defendant must have circulated the

defamatory statement knowing that it was false or with “reckless disregard”

as to its falsity.

1238

“Reckless disregard” is not negligence. It is “a high

degree of awareness of probable falsity” and requires the plaintiff to prove

that the defendant “in fact entertained serious doubts as to the truth of his

publication.”

1239

Failure to investigate or failure to act reasonably before

publishing the statement is distinct from actual malice.

1240

These

requirements are designed to protect freedom of speech and freedom of the

press.

1241

1235. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (citing WFAA-TV, Inc. v. McLemore,

978 S.W. 2d 568, 571 (Tex. 1998)).

1236. TEX. CIV. PRAC. & REM. CODE ANN. § 73.001; Hill v. Herald-Post Publ’g Co., 877

S.W.2d 774, 778 (Tex. App.—El Paso), aff’d in part, rev’d in part per curiam, 891 S.W.2d 638

(Tex. 1994).

1237. See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 153 (1967) (stating that given the protections

of the First Amendment, public officials can recover for libel only when they can prove deliberate

falsehood or reckless publication); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)

(explaining that public officials must prove actual malice to recover for a defamatory falsehood

relating to official conduct); Franco v. Cronfel, 311 S.W.3d 600, 606 (Tex. App.—Austin 2010, no

pet.).

1238. Sullivan, 376 U.S. at 279–80.

1239. Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989) (quoting St. Amant v. Thompson, 390

U.S. 727, 731 (1968)).

1240. See St. Amant, 390 U.S. at 731 (“[R]eckless conduct is not measured by whether a

reasonably prudent man would have published, or would have investigated before publishing.”).

1241. For a discussion of the historical precedents protecting these constitutional guarantees,

especially the Founding Fathers’ views, see Sullivan, 376 U.S. at 269–77.

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2. Questions of Law

Whether a statement is reasonably capable of a defamatory meaning

initially is a question of law for the court.

1242

An allegedly libelous statement

should be construed as a whole in light of the surrounding circumstances,

considering “how a person of ordinary intelligence would perceive the entire

statement.”

1243

In Neely v. Wilson,

1244

the supreme court focused on assessment

of a broadcast’s “gist” as being crucial. A broadcast that contains errors in

specific details but that correctly conveys the gist of a story is substantially

true.

1245

“On the other hand, a broadcast ‘can convey a false and defamatory

meaning by omitting or juxtaposing facts, even though all the story’s individual

statements considered in isolation were literally true or non-defamatory.’”

1246

Neely, the supreme court found fact issues existed by applying summary

judgment standards to indulge every reasonable inference in the nonmovant’s

favor and resolving any doubts against the motion.

1247

Similarly, the Houston First Court of Appeals held that a book as a whole

and each of multiple complained of “gists,” when viewed in the context of a book

as a whole, were not capable of defamatory meaning.

1248

“In short, the book is

an account of sharply conflicting, inflammatory, and accusatory trial evidence

and argument, peppered with the lawyer-author’s opinions about the trial, which

ended with the [plaintiff] family being vindicated.”

1249

Earlier cases had held that only if the language is ambiguous or of doubtful

import should a jury determine a statement’s meaning and its effect on the mind

of an ordinary reader.

1250

In ExxonMobil Corp v. Rincones, the supreme court

determined another defamation-related legal issue on summary judgment. In it,

the court expressly declined to recognize a theory of compelled self-defamation

either to satisfy the publication element of a defamation claim or to recognize an

independent cause of action for compelled self-defamation.

1251

1242. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 155 (Tex. 2004); Musser v. Smith Protective

Servs., Inc., 723 S.W.2d 653, 654 (Tex. 1987); Harvest House Publishers v. Local Church, 190

S.W.3d 204, 210 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

1243. Musser, 723 S.W.2d at 655.

1244. Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013).

1245. Id. at 63–64; Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000).

1246. Neely, 418 S.W.3d at 64 (quoting Turner, 38 S.W.3d at 114).

1247. Id. at 59–60, 76.

1248. Johnson v. Phillips, 526 SW3d 529, 539 (Tex. App.—Houston [1st Dist.] 2017, pet.

denied).

1249. Id. at 538.

1250. Turner, 38 S.W.3d at 114.

1251. ExxonMobil Corp. v. Rincones, 520 S.W.3d 572, 577 (Tex. 2017). “Compelled self-

defamation” arises when a former employee is compelled to publish the defamatory statement to

prospective employers when asked why he left his former employment. Id. at 580.

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“If the evidence is disputed, falsity must be determined by the finder of

fact.”

1252

Whether a plaintiff is a public figure is an issue of law for the court to

decide.

1253

3. Plaintiff’s Burden of Showing Actual Malice

Public figures cannot recover on a claim for defamation absent proof of

actual malice.

1254

Actual malice must exist within the mind of the defendant

at the time the publication is made.

1255

A libel defendant is entitled to

summary judgment if he or she can negate actual malice as a matter of law.

1256

Thus, even though the author’s subjective state of mind is at issue, a summary

judgment may be properly granted.

1257

In Casso v. Brand, the Texas Supreme Court first held that an interested

party can negate actual malice as a matter of law through his or her affidavit

concerning state of mind and lack of actual malice.

1258

This decision

specifically overruled earlier decisions to the contrary.

1259

In Carr v. Brasher, decided the same day as Casso, the Texas

Supreme Court again affirmed summary judgment for libel defendants in

a case where the defendants negated actual malice with their own

affidavits.

1260

Thus, through affidavits of interested witnesses, such as the

publisher, editor, or reporter, the media defendant may negate actual

malice as a matter of law.

1261

A libel plaintiff must ordinarily produce

independent evidence of actual malice in order to refute the defendant’s

denial.

1262

Therefore, summary judgment is proper where a defendant

denies actual malice and the plaintiff is unable to offer proof that actual

malice exists.

1263

1252. Bentley v. Bunton, 94 S.W.3d 561, 587 (Tex. 2002).

1253. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 328, 352 (1974) (upholding ruling that

plaintiff was not a public figure before sending the case to the jury); Foster v. Laredo Newspapers,

Inc., 541 S.W.2d 809, 811 (Tex. 1976) (reviewing the appeals court’s determination that plaintiff

was both a public official and a public figure).

1254. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 161 (Tex. 2004).

1255. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (holding

that employer’s qualified privilege to discuss employee wrongdoing is defeated if motivated by

actual malice at the time of publication).

1256. Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 853 (Tex. 2005); Huckabee v.

Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000).

1257. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).

1258. Id. at 559; see also Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005) (finding libel

defendant’s affidavit stating his belief that the article was true negated actual malice).

1259. Casso, 776 S.W.2d at 557–59.

1260. Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989).

1261. Freedom Newspapers of Tex., 168 S.W.3d at 853.

1262. Id.; Casso, 776 S.W.2d at 558–59; Carr, 776 S.W.2d at 571.

1263. Casso, 776 S.W.2d at 558; Carr, 776 S.W.2d at 571; Cox Tex. Newspapers, L.P. v.

Penick, 219 S.W.3d 425, 445–46 (Tex. App.—Austin 2007, pet. denied).

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4. Qualified Privilege

A qualified privilege exists for statements, made in good faith on a

subject in which the maker has an interest or duty, to another person having

a corresponding interest or duty.

1264

Assertion of a qualified privilege is an

affirmative defense.

1265

Thus, a defendant bears the burden to conclusively

establish each element of the privilege to prevail on its summary judgment

motion.

1266

To prevail on this qualified privilege, a defendant must show that the

alleged defamatory statement: “(1) was made without malice;

(2) concerned a subject matter of sufficient interest to the author or was

in reference to a duty owed by the author; and (3) was communicated to

another party with a corresponding interest or duty.”

1267

As noted, when a defendant in a defamation suit moves for summary

judgment on the basis of qualified privilege, the defendant has the burden of

conclusively proving that the statements were not made with malice.

1268

“A

good faith belief in the truth of a statement may be evidence that the statement

was made without malice, but it is not sufficient . . . to prove that the

statement is actually true.”

1269

G. Governmental Immunity

Governmental immunity may be raised in a plea to the jurisdiction or

in a motion for summary judgment.

1270

When evidence has been submitted

to the trial court, the procedure to determine a plea to the jurisdiction

mirrors that of a traditional motion for summary judgment.

1271

The

plaintiff has the initial burden of alleging facts that affirmatively establish

subject-matter jurisdiction.

1272

The movant challenging jurisdiction

satisfies bears the initial burden to present evidence establishing lack of

1264. Roberts v. Davis, 160 S.W.3d 256, 263 (Tex. App.—Texarkana 2005, pet. denied); see

also Dixon v. Sw. Bell Tel. Co., 607 S.W.2d 240, 242 (Tex. 1980).

1265. Saudi v. Brieven, 176 S.W.3d 108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet.

denied); Gonzales v. Levy Strauss & Co., 70 S.W.3d 278, 283 (Tex. App.—San Antonio 2002, no

pet.).

1266. See Gonzales, 70 S.W.3d at 282.

1267. Bryant v. Lucent Techs., Inc., 175 S.W.3d 845, 851 (Tex. App.—Waco 2005, pet. denied).

1268. Martin v. Sw. Elec. Power Co., 860 S.W.2d 197, 199 (Tex. App.—Texarkana 1993, writ

denied).

1269. Roberts, 160 S.W.3d at 262–63 n.1.

1270. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

1271. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing

TEX. R. CIV. P. 166a(c)); see also City of Houston v. Ellis, No. 01-17-00423-CV, 2018 WL 4087415

(Tex. App.—Houston [1st Dist.] Aug. 28, 2018, no pet. h.).

1272. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

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jurisdiction as a matter of law.

1273

If it meets that burden, the burden then

shifts to the plaintiff to demonstrate that a disputed issue of material fact

exists regarding the jurisdiction.

1274

If the evidence creates a fact issues

regarding jurisdiction, the trial court does not rule on the plea, but instead

submits the issue to the factfinder in a trial on the merits.

1275

Conversely,

if the relevant evidence is undisputed or fails to raise a fact question on

the jurisdictional issue, the trial court rules on the plea as a matter of

law.

1276

Official immunity is an affirmative defense.

1277

“Thus, the burden is

on the defendant to establish all elements of the defense.”

1278

government official is entitled to the benefit of official immunity so long

as the official is: (1) acting within the course and scope of his or her

authority; (2) performing discretionary functions; and (3) acting in good

faith.

1279

To prove good faith, a government official must show that his or her

acts were within the realm of what a reasonably prudent government official

could have believed was appropriate at the time.

1280

This standard is met

when the government official shows that the reasonably prudent government

official, under the same or similar circumstances, would have believed that

the benefit to the community from the activity in question substantially

outweighed the risk of harm from the activity.

1281

To controvert the

government official’s summary judgment proof on good faith, “the plaintiff

must show that ‘no reasonable person in the defendant’s position could have

thought the facts were such that they justified defendant’s acts.’”

1282

The Texas Tort Claims Act’s election of remedies provision provides

another potential avenue of relief for a government employee who is

named as a defendant in the same lawsuit as the governmental unit for

which she works. When a plaintiff sues both a government agency and

one of the agency’s employees in the same lawsuit, the employee must be

immediately dismissed upon the filing of a motion.

1283

A motion for

1273. Miranda, 133 S.W.3d at 227–28.

1274. Id. at 228.

1275. Id. at 227–28.

1276. Id. at 228.

1277. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); City of Lancaster v.

Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

1278. Chambers, 883 S.W.2d at 653.

1279. Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002); Gidvani v. Aldrich, 99 S.W.3d

760, 763 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

1280. Chambers, 883 S.W.2d at 656–57.

1281. Id. at 656.

1282. Id. at 657 (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993),

modified per curiam, 14 F.3d 583 (11th Cir. 1994)).

1283. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 2017).

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summary judgment is an appropriate vehicle for an agency or employee

to make such an assertion.

1284

Unlike most other denials of motions for summary judgment, summary

judgment denials in governmental immunity cases may be appealed.

1285

H. Family Law Cases

Even though family law cases are necessarily fact driven, summary

judgment disposition can be an effective way to partially or fully resolve

some family law matters. The following are among the most common.

1. Enforceability of Premarital, Marital Property, and Mediated

Settlement Agreements

The enforceability of premarital and marital property agreements may

be determined by summary judgment disposition.

1286

Generally, premarital

agreements are interpreted like other written instruments.

1287

If a movant

seeks to enforce the agreement, he or she may move for summary judgment

relying only on the agreement itself.

1288

The agreement itself is sufficient

evidence on which to move for summary judgment because, under Family

Code Section 4.006, there is a rebuttable presumption that the agreement is

enforceable.

1289

The party challenging the agreement as unenforceable has

the burden to prove the agreement is unenforceable.

1290

Upon the filing of the

motion for summary judgment, the burden shifts to the nonmovant to come

forward with enough evidence to raise a fact issue on whether the agreement

is unenforceable.

1291

1284. Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014).

1285. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); see Univ. of Tex. Sw. Med. Ctr. of

Dall. v. Margulis, 11 S.W.3d 186, 187–88 (Tex. 2000) (per curiam); Hays County v. Hays Cty.

Water Planning P’ship, 69 S.W.3d 253, 257 (Tex. App.—Austin 2002, no pet.) (“The statute

authorizing interlocutory appeals is strictly construed because it is an exception to the general rule

that only a final judgment is appealable.”); see also supra Part 1.V.B (discussing appealing

summary judgments and the governmental immunity exception).

1286. See Beck v. Beck, 814 S.W.2d 745, 746, 749 (Tex. 1991) (holding premarital agreements

constitutional); Thurlow v. Thurlow, No. 09-06-00522 CV, 2007 WL 5760841, at *4 (Tex. App.—

Beaumont Nov. 26, 2008, pet. denied) (affirming the trial court’s ruling on summary judgment that

the premarital agreement at issue was enforceable).

1287. In re Marriage of I.C. and Q.C., 551 S.W.3d 119, 122 (Tex. 2018).

1288. See Grossman v. Grossman, 799 S.W.2d 511, 513 (Tex. App.—Corpus Christi 1990, no

writ).

1289. See TEX. FAM. CODE ANN. § 4.006 (West 2017).

1290. Grossman, 799 S.W.2d at 513 (citing TEX. FAM. CODE ANN. § 5.46, repealed by Act of

Mar. 13, 1997, 75th Leg., R.S., ch. 7, § 3, 1997 Tex. Gen. Laws 8, 43 (current version at TEX. FAM.

CODE ANN. § 4.006)).

1291. Id.

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If the defendant is relying on an involuntary execution defense, the

plaintiff may consider filing a no-evidence motion for summary judgment.

1292

To defeat summary judgment, the nonmovant must present enough evidence

to raise a fact issue concerning whether the agreement was entered into

voluntarily.

1293

The Family Code provides that an unconscionable agreement or one not

voluntarily entered into is not enforceable.

1294

Whether the agreement was

unconscionable when it was signed is a matter of law to be decided by the

court.

1295

The Houston Fourteenth Court of Appeals noted that an early

determination of unconscionability is a better practice than waiting for

submission of the case to a jury.

1296

Summary judgment may be one way for

the trial court to make this determination early in the proceedings. In

considering premarital agreements, the supreme court cautions that parties

have the “utmost liberty” to contract and “when entered into freely and

voluntarily shall be held sacred and shall be enforced by the Courts.”

1297

Accordingly, the supreme court upheld a summary judgment denying a

wife’s request for rescission of a premarital agreement in which her attempt

at rescission triggered a clause under the agreement under which she lost a

$5 million payment otherwise due to her.

1298

Mediated settlement agreements may also be the source for summary

judgment disposition. In Loya v. Loya,

1299

the supreme court considered

whether a mediated settlement agreement partitioned a discretionary

employee bonus the husband received nine months after the decree was

entered. Upholding the trial court’s summary judgment, the supreme court

agreed that the mediated settlement agreement partitioned the bonus.

1300

2. Interpretation of Divorce Decrees

To resolve a dispute over property, a motion for summary judgment may

be proper to ask the court to interpret a divorce decree. If the divorce decree,

1292. See, e.g., Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 700–01 (Tex. App.—Austin 2005,

pet. denied) (upholding partial summary judgment in favor of the party seeking to enforce a marital

property agreement after determining that the nonmovant failed to raise a fact issue regarding

involuntary execution).

1293. See id. at 691–92, 699–700.

1294. TEX. FAM. CODE ANN. §§ 4.006(a).

1295. Id. §§ 4.006(b), 4.105(b).

1296. Blonstein v. Blonstein, 831 S.W.2d 468, 472 (Tex. App.—Houston [14th Dist.]), writ

denied, 848 S.W.2d 82 (Tex. 1992) (per curiam).

1297. In re Marriage of I.C. and Q.C., 551 S.W.3d 119, 119, 124 (Tex. 2018) (quoting Gym-N-

I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007)).

1298. Id. at 124–25.

1299. Lova v. Lova, 526 S.W.3d 448 (Tex. 2017).

1300. Id. at 453.

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when read as a whole, is unambiguous concerning the property’s disposition,

the court may grant a summary judgment to effectuate the order in light of

the literal language used.

1301

Thus, even when a divorce decree does not

contain express language disposing of a certain piece of property (for

example, the house your client inherited), the court may still grant a summary

judgment if the decree indicates the divorce court’s decision to award the

property solely to one spouse.

1302

A motion for summary judgment may also be used to dispose of disputes

that are barred by an agreement incident to divorce that a party would not re-

open the divorce and that had been incorporated into the divorce decree.

1303

3. Interpretation or Application of Law

A motion for summary judgment is also appropriate when the resolution

of a question involving the interpretation or application of law will resolve a

family law issue. The courts have determined the following through summary

judgment disposition:

 An agreement concerning the return of an engagement ring

must be in writing to be enforceable.

1304

 A court cannot divide military benefits as community property

in a former spouse’s partition suit if the final divorce decree,

issued before June 25, 1981, does not divide the benefits or

reserve jurisdiction to divide those benefits.

1305

 An employer may not be held liable for failing to prevent two

employees from engaging in extramarital relations.

1306

 An employer does not have a duty to voluntarily disclose the

existence and nature of an employee’s benefits to the

employee’s spouse.

1307

1301. Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997) (per curiam) (citing Acosta v.

Acosta, 836 S.W.2d 652, 654 (Tex. App.—El Paso 1992, writ denied)); Lohse v. Cheatham, 705

S.W.2d 721, 726 (Tex. App.—San Antonio 1986, writ dism’d).

1302. Wilde, 949 S.W.2d at 333.

1303. See, e.g., Smith v. Ferguson, 160 S.W.3d 115, 120, 123–24 (Tex. App.—Dallas 2005, pet.

denied) (holding husband’s claim was barred by release provision in an agreement incident to

divorce that stated he would not “reopen” the divorce case).

1304. Curtis v. Anderson, 106 S.W.3d 251, 254–55 (Tex. App.—Austin 2003, pet. denied)

(interpreting Section 1.108 of the Texas Family Code).

1305. Havlen v. McDougall, 22 S.W.3d 343, 345–46 (Tex. 2000).

1306. Helena Labs. Corp. v. Snyder, 886 S.W.2d 767, 768 (Tex. 1994) (per curiam).

1307. Medenco, Inc. v. Myklebust, 615 S.W.2d 187, 189 (Tex. 1981).

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 The United States may not be ordered to pay a former spouse

directly her portion of her ex-spouse’s military retirement

benefits based on sovereign immunity.

1308

 An agreement concerning the support of a non-disabled child

over eighteen is not enforceable when the agreed order

incorporating the agreement does not expressly provide that the

agreement’s terms are enforceable as contract terms.

1309

4. Res Judicata/Collateral Estoppel

Another situation that may call for summary judgment disposition is

when a family law issue has previously been litigated either in Texas or in

another state. Res judicata and collateral estoppel precepts also apply in

family law cases.

1310

For example, in Mossler v. Shields, a woman was

estopped from bringing an action seeking to establish the existence of a

common law marriage because a divorce action, making the same claim, had

been dismissed with prejudice by another Texas court.

1311

Likewise,

summary judgment has been used to dispose of an action that was already

litigated to final judgment in another state. In Purcell v. Bellinger, the Texas

Supreme Court affirmed a summary judgment barring a paternity action in

Texas after the issue had been litigated to final judgment in New York.

1312

5. Characterization of Property

Property possessed by either spouse is presumed to be community

property.

1313

However, traditional summary judgment may be used in some

instances to establish the separate nature of such property. Partial summary

judgment is available if a movant can present uncontroverted evidence he or she

owned the property before the marriage and, without interruption, throughout the

marriage.

1314

Partial summary judgment may also be appropriate to present

uncontroverted evidence that a bank account is separate property and that the

1308. United States v. Stelter, 567 S.W.2d 797, 799 (Tex. 1978) (reversing the trial court’s

summary judgment that allowed garnishment of a husband’s military benefits and dismissed the

proceedings).

1309. Elfeldt v. Elfeldt, 730 S.W.2d 657, 658 (Tex. 1987).

1310. See, e.g., Purcell v. Bellinger, 940 S.W.2d 599, 600–02 (Tex. 1997) (per curiam) (holding

that res judicata barred a subsequent paternity suit in Texas brought by the mother after her initial

petition for paternity was dismissed with prejudice in New York).

1311. Mossler v. Shields, 818 S.W.2d 752, 753–54 (Tex. 1991) (per curiam).

1312. Purcell, 940 S.W.2d at 600–02.

1313. TEX. FAM. CODE ANN. § 3.003(a) (West 2017).

1314. See Dawson-Austin v. Austin, 920 S.W.2d 776, 791 (Tex. App.—Dallas 1996) (holding

entire value of corporation to be husband’s separate property because the husband acquired the

shares before marriage and never acquired additional shares or divested himself of any shares during

the marriage), rev’d on other grounds, 968 S.W.2d 319 (Tex. 1998).

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interest earned on the account (which is community property) was not

commingled with the account.

1315

6. Existence of the Marital Relationship

An informal (“common law”) marriage claim may also be disposed of

by summary judgment. A party that alleges an informal marriage must prove

that: (1) the parties agreed to be married; (2) after the agreement they lived

in Texas together as husband and wife; and (3) they represented to others that

they were married.

1316

Also, both parties must possess the legal capacity to

marry.

1317

A motion for summary judgment can challenge the validity of an

informal marriage either by the movant disproving one of the elements or by

filing a no-evidence motion claiming that the nonmovant has no evidence to

support one or more of the elements.

1318

For example, summary judgment has

been used to dismiss a divorce action where one of the parties to the alleged

informal marriage was under the age of eighteen and there was no evidence

that the legal requirements for written or judicial consent under the Family

Code were met.

1319

I. Insurance Matters

Summary judgments are common in actions involving insurance,

including policy interpretation.

1320

The general rules of contract construction

govern insurance policy interpretation.

1321

However, there are differences in

the way insurance policies are interpreted that affect summary judgment

practice. For example, the policy is construed against the insurer when

ambiguous policy terms permit more than one reasonable interpretation.

1322

This is particularly the case when the policy terms exclude or limit

1315. Pace v. Pace, 160 S.W.3d 706, 714–15 (Tex. App.—Dallas 2005, pet. denied).

1316. TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2017).

1317. Kingery v. Hintz, 124 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

(citing Villegas v. Griffin Indus., 975 S.W.2d 745, 749 (Tex. App.—Corpus Christi 1998, pet.

denied)).

1318. See Kingery, 124 S.W.3d at 878–79; see also TEX. R. CIV. P. 166a(i).

1319. Kingery, 124 S.W.3d at 878–79.

1320. See generally Wright & Kurth, supra note 197, at 15, 24.

1321. JAW The Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 603 (Tex. 2015); Tex.

Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879 (Tex. 1999); State Farm Life Ins. Co. v. Beaston,

907 S.W.2d 430, 433 (Tex. 1995); see also Aubris Res. LP v. St. Paul Fire & Marine Ins. Co., 566

F.3d 483, 486 (5th Cir. 2009) (“Under Texas law, the same general rules apply to the interpretation

of contracts and insurance policies.”).

1322. See State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex. 1998) (per

curiam); Nat’l Union Fire Ins. Co. of Pittsburg v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.

1991); see also Certain Underwriters at Lloyds, London v. Law, 570 F.3d 574, 577 (5th Cir. 2009)

(“If . . . ambiguity is found, the contractual language will be ‘liberally’ construed in favor of the

insured.” (citing Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987))).

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coverage.

1323

If terms in insurance policies are subject to more than one

reasonable construction, they are interpreted in favor of coverage.

1324

There are many examples of insurance contracts being interpreted

differently from other contracts and it is important to keep this fact in mind.

For example, when interpreting form policies prescribed by the Texas

Department of Insurance, the courts will look to every day meaning of its

words to the general public, not the intent of the parties.

1325

When construing an insurance policy, the courts ordinarily determine

and give effect to the parties’ intent as expressed by the words they chose to

effectuate their agreement.

1326

However, if the policy forms are mandated by

the Texas Department of Insurance, the actual intent of the parties is not

material.

1327

McAllen Hospitals, L.P. v. State Farm Mutual Insurance Co. of

Texas

1328

is another example of a case involving insurance. In it, the supreme

court determined that a hospital’s charges were not “paid” by a settling

defendant’s carrier under the Hospital Lien Statute and the Uniform

Commercial Code.

1329

The carrier had made the check payable to the settling

plaintiffs and the hospital, but the hospital did not receive notice that

settlement funds had been delivered to the patients and it was not reimbursed

for the treatment costs. Thus, the court determined that if the payee who

presented the draft for payment does so without the endorsement of the other

payee, the drawer’s obligation to the payee whose endorsement was not

obtained is not discharged.

1330

Summary judgment may be appropriate in cases involving a Stowers

cause of action. A Stowers cause of action arises when an insurer negligently

fails to settle a claim covered by an applicable policy within policy limits.

1331

To prove a Stowers claim, the insured must establish that: (1) the claim is

within the scope of coverage; (2) a demand was made that was within policy

limits; and (3) the demand was such that an ordinary, prudent insurer would

have accepted it, considering the likelihood and degree of the insured’s

potential exposure.

1332

To prevail on a Stowers claim in a summary judgment

1323. See Vaughan, 968 S.W.2d at 933.

1324. JAW The Pointe, L.L.C., 460 S.W.3d at 603.

1325. Green v. Farmers Ins. Exch., 446 S.W.3d 761, 766 (Tex. 2014).

1326. In re Deep Water Horizon, 470 S.W.3d 452, 464 (Tex. 2015).

1327. Wausau Underwriters Ins. Co. v. Wedel, 557 S.W.3d 554, 557 (Tex. 2018).

1328. McAllen Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. of Tex., 433 S.W.3d 535 (Tex.

2014).

1329. Id. at 536.

1330. Id. at 536–37, 540.

1331. See G.A. Stowers Furniture Co. v. Am. Indem. Co.,15 S.W 2d 544, 547–48 (Tex. Comm’n

App. 1929, holding approved).

1332. Seger v. Yorkshire Ins. Co., Ltd, 503 S.W.3d 388, 395–96 (Tex. 2016).

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proceeding, the movant must establish each of these elements as a matter of

law.

1333

J. Oil and Gas Cases

Summary judgment disposition is appropriate in many cases involving

oil and gas disputes. The primary reason for summary judgments’ common

use in oil and gas cases is that they often involve written documents.

1334

Because they are usually based on the interpretation of written instruments,

most motions for summary judgment in oil and gas cases are traditional,

rather than no-evidence, summary judgments.

Commentators caution that key language within the four corners of oil

and gas instruments frequently control the outcome in oil and gas cases.

1335

And they are correct. In fact, because oil and gas interests fundamentally are

interests in real property, they must be reduced to writing to satisfy the Statute

of Frauds and the Property Code.

1336

The writings fall into a handful of

different types of documents. The most common are oil & gas leases, joint

operating agreements, farmout agreements, production sharing agreements,

and easements and rights-of-way.

As with any contract, in construing an oil and gas lease (or other

document), the court seeks to ascertain the true intentions of the parties as

expressed in the writing itself.

1337

Addressing oil and gas leases specifically

and where the lease expressly defines the duty, the courts will not impose a

more stringent obligation unless it is clear that the parties intended to do

so.

1338

The court may consult the facts and circumstances surrounding a

negotiated contract’s execution to aid the interpretation of its language.

1339

Because mineral leases transfer and affect title to real property interests, they

are subject to special constructions rules that apply particularly to agreements

governing property rights.

1340

1333. Id. at 400–01.

1334. See, e.g., Murphy Exp. & Prod. Co.—USA v. Adams, 560 S.W.3d 105, 109 (Tex. 2018)

(interpretation of an offset provision in a lease); Davis v. Mueller, 528 S.W.3d 97, 99–100 (Tex.

2017) (suit to quiet title based on a conveyance of mineral interests); see generally infra sect. IV.B.

(Suits on Written Instruments).

1335. Derek Cook & Harper Estes, Persuasion Inside Four Corners: How Principles of Oil and

Gas Instrument Construction Drive Oil and Gas Litigation, 35 LITIG. 1 (2018).

1336. TEX. PROP. CODE ANN. § 5.021 (Vernon 1984); see supra Part 1.VII.B (Suits on Written

Instruments).

1337. Murphy Exp. & Prod. Co., 560 S.W.3d at 108; Italian Cowboy Partners, Ltd. v. Prudential

Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011).

1338. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011).

1339. URI, Inc. v. Kleberg County, 543 S.W.3d 755, 765 (Tex. 2018).

1340. Endeavor Energy Res., L.P. v. Discovery Operating, Inc., 554 S.W.3d 586, 595 (Tex.

2018) (citing Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and Leases: An

Encyclopedia of Canons of Constructions, 24 TEX. TECH L. REV. 1 (1993)).

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A recent set of “double fraction” cases reaffirmed the supreme court’s

“commitment to a holistic approach aimed at ascertaining intent from all

words and parts of the conveying instrument.”

1341

(“Double fraction” cases

arise when a mineral deed expresses a royalty interest as the product of two

fractions.

1342

) In Hysaw v. Dawkins,

1343

the supreme court considered the

double fraction issue in the context of a will-construction dispute, applied its

holistic approach to contract construction and, in doing so, it refused to apply

a “bright line” rule of construction.

1344

In the second double fractional royalty interest case, US Shale II v.

Laborde Properties L.P.,

1345

the supreme court addressed construction of a

deed. It found the deed unambiguously reserved a floating 1/2 interest (rather

than a fixed interest) in the royalty in all oil, gas, or other minerals produced

from the conveyed property by examining the “language and structure of the

reservation at issue—our sole guide in ascertaining the intent of the parties

to this deed.”

1346

As a practical matter, with so-called “standard” agreements being

commonplace, industry participants have developed their own “standard”

jargon, as well as industry custom and usage practices. These standard

agreements and standard jargon can be an aide to litigation by acting as a

shortcut and speeding up the process.

1347

But these standard agreements and

standard jargon can also be an obstacle to resolution of disputes when

seemingly common words and phrases have meanings and understandings

within the industry that are not readily apparent to those outside the industry.

When insiders use so-called “standard” jargon, the insiders’ real objectives

and true obligations may become obscured, particularly when dealing with a

landowner or a royalty holder, who may not be fully cognizant of the industry

meaning. Thus, use of standard jargon may call into question the parties’

intentions and even raise a question concerning whether there has been a true

“meeting of the minds” sufficient to form a contract.

1348

These factors provide a foundation for two distinct trends. First, trial

court judges increasingly grant motions for summary judgment (under the

rationale that if the parties are using “standard” documents, with a built-in

1341. Hysaw v. Dawkins, 483 S.W.3d 1 (Tex. 2016); U.S. Shale Energy II v. Laborde Prop.,

L.P. 551 S.W.3d 148 (Tex. 2018).

1342. Hysaw, 483 S.W.3d at 1 (using as an example of a double fraction royalty interest, a

royalty interest expressed in an instrument as “1/2 of the usual 1/8”).

1343. Id.

1344. Id. at 12.

1345. U.S. Shale Energy II v. Laborde Prop., L.P. 551 S.W.3d 148 (Tex. 2018).

1346. Id. at 150.

1347. Written interview with Chuck Brownman, Oil and Gas Adjunct Professor at South Texas

College of Law Houston (January 9, 2019).

1348. Id.

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pattern of industry usage and jargon, the clauses in dispute would not be

ambiguous, so the parties’ intent becomes irrelevant and a non-factor).

Second, appellate courts reverse the trial courts’ rulings, either (1) by

reversing the summary judgment because of the existence of an

ambiguity,

1349

or (2) by finding the summary judgment unambiguous but

reversing the summary judgment and rendering judgment for the cross-

movant.

1350

An example of a reversal holding for the cross-movant is North Shore

Energy v. Harkins,

1351

in which the supreme court considered the

interpretation of an option contract between landowners and an oil and gas

company. Both sides filed motions for summary judgment urging their

interpretations of the land description in the contract. The court determined

that the landowners’ interpretation was the only reasonable interpretation and

reversed the trial court’s summary judgment.

1352

An example of a type of summary judgment that does not depend on

contract construction is found in ExxonMobil v. Lazy R Ranch.

1353

In it,

ExxonMobil moved for summary judgment on the ground that ground water

contamination claims were barred by the statute of limitations to defeat a

landowner’s claim for environmental remediation. The court determined that

the company was entitled to summary judgment on claims relating to two

abandoned sites but not to two others that were still in use.

1354

Summary

judgments may also be used to interpret statutes relating to oil and gas.

For example, in Exxon Corp. v. Emerald Oil & Gas Co., the court

determined that the Natural Resources Code created a private cause of

action for damages resulting from statutory violations.

1355

Finally, in a recent case of first impression, the supreme court affirmed

a summary judgment that defeated a trespass claim. It determined that a

trespass claim was not supported by a plaintiff lessee’s loss of minerals from

a well being drilled by an adjacent mineral estate lease from the surface

1349. See e.g. ConocoPhillips v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2017).

1350. See e.g. U.S. Shale Energy II v. Laborde Prop., L.P. 551 S.W.3d 148, 151 (Tex. 2018)

(noting, “[a]s is often the case, the parties here agree the deed in question is unambiguous but

diverge on its proper interpretation”).

1351. N. Shore Energy v. Harkins, 501 S.W.3d 598 (Tex. 2017) (per curiam).

1352. Id. at 604.

1353. 511 S.W.3d 538 (Tex. 2017).

1354. Id. at 545.

1355. Exxon Corp. v. Emerald Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010); see also PAJ,

Inc. v. Hanover Ins. Co., 243 S.W.3d 630, 636–37 (Tex. 2008) (determining the effect on coverage

when an insured fails to timely notify its insurer of a claim but the insurer suffers no harm as a

result).

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through the plaintiff’s mineral estate to reach minerals in an adjacent

property.

1356

PART 2: FEDERAL SUMMARY JUDGMENT PRACTICE

I. PROCEDURE FOR SUMMARY JUDGMENTS

Federal Rule of Civil Procedure 56 sets forth the procedures governing

the litigation of motions for summary judgment in federal court.

1357

Rule

56(a) mandates that a court “shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.”

1358

While federal law governs

other procedural issues concerning summary judgment motions, such as

evidentiary, timing, and stylistic matters,

1359

whether federal or state

substantive law applies depends on the underlying basis for the federal

court’s exercise of subject matter jurisdiction. Federal substantive and

procedural law governs cases arising under a court’s federal question

1356. See, e.g., Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 43 (Tex.

2017).

1357. Rule 56 was significantly amended in 2010, resulting in technical changes to the rules

surrounding federal court summary judgment practice. FED. R. CIV. P. 56 advisory committee’s note

to the 2010 amendments (“Rule 56 is revised to improve the procedures for presenting and deciding

summary-judgment motions and to make the procedures more consistent with those already used in

many courts.”).

1358. FED. R. CIV. P. 56(a). The amended Rule thus includes more mandatory language—

“shall” has replaced “should”—and a slightly altered standard of review—“genuine dispute as to

any material fact” has replaced “genuine issue as to any material fact”—than its pre-amendment

predecessor. The “shall” replacing “should” is a return to pre-2007 amendment language. FED. R.

CIV. P. 56 advisory committee’s note to the 2010 amendments. Although the language of the Rule

has changed, the familiar standard—whether there is a genuine issue of material fact (as opposed to

a genuine dispute of material fact)—is still frequently employed by courts and litigants in their

standards of review. See, e.g., Clayton v. ConocoPhillips Co., 722 F.3d 279, 290 (5th Cir. 2013)

(“A grant of summary judgment is proper if there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.”); Ass’n of Taxicab Operators USA v. City of

Dallas, 720 F.3d 534, 537 (5th Cir. 2013) (“We may grant summary judgment if the record, viewed

in the light most favorable to the nonmovant, demonstrates that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.” (internal quotation marks

omitted)). In addition, the Advisory Committee has made clear that the standard itself has not

changed, even if the words used slightly have. FED. R. CIV. P. 56 advisory committee’s note to the

2010 amendments (“The standard for granting summary judgment remains unchanged.”).

Nonetheless, practitioners should strive to correctly quote the updated standard of review. While

misquoting the standard of review may give an impression to the court that the lawyer is unfamiliar

with critical changes to the law governing summary judgment practice in federal court, correctly

quoting the updated language of Rule 56 demonstrates to the court the practitioner’s ability not only

to accurately recite the law, but also to competently relate the facts of the case, and ultimately uphold

a judgment on appeal. See Judge David Hittner & Matthew Hoffman, Notable Issues in Federal

Summary Judgment Practice, 67 ADVOC., Summer 2014, at 31, 31–32.

1359. FED. R. EVID. 101 (evidence); FED. R. CIV. P. 56(e) (sufficiency of affidavits); FED. R.

CIV. P. 56(b), (c) (timing); FED. R. CIV. P. 7(b) (form).

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jurisdiction.

1360

In diversity cases, by contrast, applicable state law governs

substantive issues and federal law governs procedural issues.

1361

The primary procedural issue a practitioner should be aware of when

litigating summary judgment motions in federal court is the burden-shifting

framework enunciated by the Supreme Court’s 1986 summary judgment

trilogy of Matsushita Electric Industrial Co. v. Zenith Radio Corp., Anderson

v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett.

1362

In Matsushita and

Liberty Lobby, the Court expounded on the “material fact” standard, while in

Celotex the Court initially outlined the manner in which the burden shifts

from the movant to the nonmovant in a typical summary judgment.

1363

described by one commentator, “Celotex has made it easier to make the

motion, and Anderson and Matsushita have increased the chances that it will

be granted.”

1364

Since the trilogy, summary judgment practice has become an

increasingly important part of federal civil procedure.

1365

This section

discusses threshold procedural requirements for filing and opposing

summary judgment motions in federal court.

1366

A. Timing

Summary judgment motions generally may be filed at any time until

thirty days after the close of discovery.

1367

Litigants should be aware that

1360. See 28 U.S.C. § 1331 (2018); FED. R. CIV. P. 1.

1361. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Cerda v. 2004–EQR1 L.L.C., 612

F.3d 781, 786 (5th Cir. 2010).

1362. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Celotex Corp. v. Catrett, 477 U.S.

317, 322–24 (1986). Notably, both Matsushita and Celotex were 5–4 decisions, while Liberty Lobby

was 6–3. Celotex came to the Supreme Court on certiorari from the U.S. Court of Appeals for the

District of Columbia, where Judge Robert Bork had filed a dissenting opinion in a 2–1 decision.

Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 187 (D.C. Cir. 1985) (Bork, J., dissenting),

rev’d sub nom. Celotex Corp. v. Catrett, 477 U.S. 317 (1986), remanded sub nom. to Catrett v.

Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987). On remand from the Supreme Court, the

D.C. Circuit held that the materials submitted by the plaintiff showed a genuine issue of material

fact. Johns-Manville Sales Corp., 826 F.2d at 39–40 (“While the four items [of evidence] taken

individually provide less than overpowering support for [the plaintiff’s] position, their cumulative

effect is, we believe, sufficient to defeat the summary judgment motion.”).

1363. Matsushita, 475 U.S. at 587; Liberty Lobby, 477 U.S. at 247–48; Celotex, 477 U.S. at

323–24.

1364. Miller, supra note 3, at 1041; see also Logan, supra note 7, at 937 (noting that Celotex,

Liberty Lobby, and Matsushita “provided federal trial judges greater latitude to resolve the merits

of a case without a full presentation of the facts to a jury.”). For a discussion of the summary

judgment motion’s evolutionary effect on federal courts’ dockets, see Subrin & Main, supra note 5,

at 1843–55.

1365. See supra note 4.

1366. Matsushita, Liberty Lobby, and Celotex are discussed in more detail below. See infra Part

2.III.A.

1367. FED. R. CIV. P. 56(b).

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local district court rules may differ; courts may set alternative deadlines in

scheduling orders and often do.

1368

Nonmovants may object to the timing of

a summary judgment motion on the basis that they have not had adequate

time to conduct discovery.

1369

Such an objection should be accompanied by

an affidavit or declaration stating specific reasons why the party cannot

present facts to justify its opposition and requesting that the court either deny

consideration of the motion, allow time to take additional discovery, or

provide any other related relief.

1370

B. Notice and Hearing

Oral hearings for summary judgment motions are not required under the

Federal Rules and consequently are rarely granted.

1371

The Rules likewise do

not provide for a specific time by which motions must be served upon the

opposing party.

1372

Courts are generally permitted to rule on summary

judgment motions without first giving the parties advance notice of the

court’s intention to decide the motion by a certain date.

1373

As such, federal

courts typically rule on such motions solely based on the parties’

submissions.

1374

Attorneys who wish to have an oral hearing before the

court’s ruling should consult the relevant local rules and the individual

judge’s procedures and consider filing a motion specifically requesting an

oral hearing.

1375

One option that may be available to secure a hearing may be

the so-called “Young Lawyer” rules. The procedures of several federal

district court judges in Texas include “Young Lawyer” rules, stating the court

1368. Id.; see also, e.g., N.D. & S.D. MISS. R. 7(b)(2)(D) (“Unless otherwise ordered by the

Case Management Order, all case-dispositive motions . . . must be filed no later than fourteen

calendar days after the discovery deadline.”).

1369. FED. R. CIV. P. 56(d).

1370. Id.

1371. See FED. R. CIV. P. 56; N.D. TEX. CIV. R. 7.1(g) (“Unless otherwise directed by the

presiding judge, oral argument on a motion will not be held.”).

1372. See FED. R. CIV. P. 56. Prior to the timing amendments to Rule 56 in 2009, a summary

judgment motion was required to “be served at least 10 days before the day set for the hearing.”

FED. R. CIV. P. 56(c) (2008) (amended 2009); see also Atkins v. Salazar, 677 F.3d 667, 678 n.15

(5th Cir. 2011) (per curiam) (explaining that the pre-2009 version of Rule 56(c) required “the

nonmoving party [to] be served with a summary judgment motion at least ten days prior to the time

fixed for the hearing, so as to afford the nonmoving party ‘an opportunity to respond and to develop

the record in opposition to requested summary judgment’” (quoting John Deere Co. v. Am. Nat’l

Bank, Stafford, 809 F.2d 1190, 1192 & n.2 (5th Cir. 1987))).

1373. Hall v. Smith, 497 F. App’x 366, 374 (5th Cir. 2012) (per curiam) (quoting Daniels v.

Morris, 746 F.2d 271, 275–76 (5th Cir. 1984)).

1374. See Mark R. Kravitz, Written and Oral Persuasion in the United States Courts: A District

Judge’s Perspective on Their History, Function, and Future, 10 J. APP. PRAC. & PROCESS 247, 255

(2009).

1375. See, e.g., S.D. TEX. CIV. R. 7.5 (“If a party views oral argument as helpful to the Court,

the motion or response may include a request for it.”).

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will be more inclined to grant an oral hearing upon a representation from a

party that a less-experienced lawyer will be handling argument.

1376

Under Federal Rule of Civil Procedure 12(d), if a court considers

matters outside the pleadings as part of a Rule 12(b)(6) motion, the court

must treat the motion as one for summary judgment, rather than a Rule

12(b)(6) motion to dismiss, and afford the nonmovant a reasonable

opportunity to present evidence.

1377

Notice is considered sufficient as long as

the nonmovant knows that the court may convert the motion to dismiss into

one for summary judgment.

1378

An express warning by the court that it plans

to convert the motion is unnecessary—the nonmovant merely must be aware

that the movant has submitted matters outside the pleadings for the court’s

review.

1379

Notice issues also arise when courts enter summary judgment sua

sponte. District courts have the power to enter summary judgment sua sponte

after providing notice and allowing a reasonable time for the parties to

respond with evidence.

1380

The court of appeals reviews for harmless error a

district court’s grant of summary judgment sua sponte without notice.

1381

the losing party has no additional evidence or if such evidence would not

1376. See, e.g., Judge Barbara Lynn’s Procedures § II(c),

http://www.txnd.uscourts.gov/judge/chief-district-judge-barbara-mg-lynn [https://perma.cc/UC4R-

J8VQ ] (“In those instances where the Court is inclined to rule on the papers, a representation that

the argument would be handled by a young lawyer will weigh in favor of holding a hearing.”); Judge

Alfred Bennett’s Procedures § A(5), http://www.txs.uscourts.gov/sites/txs/files/Bennett.pdf

[https://perma.cc/U7L2-27YB] (“The Court strongly encourages litigants to be mindful of

opportunities for young lawyers (i.e., lawyers practicing for less than seven years) to conduct

hearings before the Court, particularly for motions where the young lawyer drafted or contributed

significantly to the underlying motion or response.”).

1377. FED. R. CIV. P. 12(d). Documents that are attached to a motion to dismiss and that are

referred to in the plaintiff’s complaint and central to his claim are considered part of the pleadings.

Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013). A court may also properly take judicial notice of

adjudicative facts under Federal Rule of Evidence 201 when considering a Rule 12(b)(6) motion to

dismiss without converting the motion to dismiss into a motion for summary judgment. Funk v.

Stryker Corp., 631 F.3d 777, 782–83 (5th Cir. 2011); see also Norris v. Hearst Trust, 500 F.3d 454,

461 n.9 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice

of matters of public record.”). Moreover, “where a motion for summary judgment is solely based

on the pleadings or only challenges the sufficiency of the plaintiff’s pleadings, then such a motion

should be evaluated in much the same way as a Rule 12(b)(6) motion to dismiss.” St. Paul Mercury

Ins. Co. v. Williamson, 224 F.3d 425, 440 (5th Cir. 2000).

1378. Guiles v. Tarrant Cty. Bail Bond Bd., 456 F. App’x 485, 487 (5th Cir. 2012) (per curiam)

(citing Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 195 (5th Cir. 1988)).

1379. Id. (citing Isquith, 847 F.2d at 195–96).

1380. FED. R. CIV. P. 56(f); Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011) (per curiam).

“[The Fifth Circuit has] stated that adequate notice for a sua sponte grant of summary judgment is

‘10 days before the time fixed for the hearing’. . . . [However], we note that [Rule 56(c)] was

amended in 2010 and 2011 . . . [and] no longer contains this ten-day notice requirement.” J.D. Fields

& Co. v. U.S. Steel Int’l, Inc., 426 F. App’x 271, 280 n.9 (5th Cir. 2011) (citations omitted).

1381. Sayles v. Advanced Recovery Sys., Inc., 865 F.3d 246, 248–49 (5th Cir 2017); Spring St.

Partners-IV, L.P. v. Lam, 730 F.3d 427, 436 (5th Cir. 2013) (quoting Atkins, 677 F.3d at 678).

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have raised a genuine dispute of material fact, a grant of summary judgment

will likely be affirmed.

1382

If, however, the district court’s sua sponte grant

of summary judgment foreclosed the losing party from presenting a

potentially valid defense or potentially relevant evidence, the district court’s

order may be reversed.

1383

The Fifth Circuit has stated that summary

judgments may be vacated when the district court failed to provide any notice

prior to a sua sponte grant of summary judgment, even when the entry of

summary judgment may have been appropriate on the merits.

1384

C. Deadline to Respond

Rule 56(c) formerly required a party opposing summary judgment to

respond within twenty-one days.

1385

As altered by the 2010 amendments,

however, Rule 56 does not establish an explicit deadline to respond.

1386

Rather, a district court’s local rules or scheduling orders may specify a date

by which a response must be filed.

1387

Because the rules vary between

districts—even districts within the same circuit—attorneys should consult

the local rules of the district in which their case is pending. In both the

Southern and the Northern Districts of Texas, for example, the response must

be filed within twenty-one days of the filing of the motion, while the Eastern

1382. See, e.g., Sayles, 865 F.3d at 249 (affirming the district court’s sua sponte grant of

summary judgment when the losing party represented that no factual disputes remained and

admitted it had no additional evidence); see also Tolbert v. Nat’l Union Fire Ins. Co., 657 F.3d 262,

271–72 (5th Cir. 2011) (affirming the district court’s sua sponte grant of summary judgment when

the appellant failed to explain on appeal the relevance of the evidence he was unable to offer in

support of his dismissed claim).

1383. See JNV Aviation, L.L.C. v. Flight Options, L.L.C., 495 F. App’x 525, 532 (5th Cir. 2012)

(per curiam) (reversing the district court’s sua sponte issuance of summary judgment where the

parties were prepared to offer expert testimony on the disputed issue at trial); Mannesman Demag

Corp. v. M/V Concert Express, 225 F.3d 587, 595 (5th Cir. 2000) (finding reversible error and

reversing the district court when a party was not able to present a potentially valid defense prior to

the court’s sua sponte grant of summary judgment).

1384. Atkins, 677 F.3d at 678 (quoting Leatherman v. Tarrant Cty. Narcotics Intelligence &

Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994)).

1385. FED. R. CIV. P. 56(c) (2009) (amended 2010). The timing provisions of Rule 56 went

through three iterations in a three-year period between 2008 and 2010. In 2008, the ten-day rule

required a motion to be served “at least 10 days before the day set for the hearing.” FED. R. CIV. P.

56(c) (2008) (amended 2009). 2009 amendments abrogated this rule and replaced it with a

requirement that “a party opposing the motion must file a response within 21 days after the motion

is served or a responsive pleading is due, whichever is later.” FED. R. CIV. P. 56(c) (2009) (amended

2010). One year later, in 2010, the present form of the Rule was adopted, which contains no timing

requirements for a responding party. FED. R. CIV. P. 56(c) (2010) (current).

1386. See FED. R. CIV. P. 56 advisory committee’s note to the 2010 amendments (“The timing

provisions in former subdivisions (a) and (c) are superseded.”).

1387. As envisioned by the Advisory Committee Notes to the 2010 amendments, “[s]cheduling

orders or other pretrial orders can regulate timing to fit the needs of the case.” FED. R. CIV. P. 56

advisory committee’s note to the 2010 amendments.

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District of Texas sets fourteen days from the date of service as the

deadline.

1388

Like responses, the former Rule 56 timing rules governing

replies have been abrogated, and local rules and procedures should instead

be referenced.

1389

Wholesale failure to respond is construed as a representation of no

opposition under the local rules of many jurisdictions, and such a failure may

lead to the entry of summary judgment against the nonresponding party.

1390

However, summary judgment cannot be granted solely on the basis of a

nonmovant’s failure to respond.

1391

Instead, summary judgment may only be

granted if the moving party satisfies its initial burden of demonstrating that

there is no genuine dispute as to any material fact.

1392

D. Discovery

Rule 56(d) gives a court broad authority to fashion the appropriate relief

necessary when a nonmovant demonstrates to the court that it needs

additional discovery before responding to a summary judgment motion.

1393

1388. S.D. TEX. CIV. R. 7.3; N.D. TEX. CIV. R. 7.1(e); E.D. TEX. CIV. R. 7(e); see also W.D.

TEX. CIV. R. 7(e)(2) (fourteen days from filing); W.D. LA. CIV. R. 7.5 (twenty-one days from

service); M.D. LA. CIV. R. 7.4 (twenty-one days from service); E.D. LA. CIV. R. 7.5 (eight days

before the noticed submission date); N.D. & S.D. MISS. CIV. R. 7(b)(4) (fourteen days from service).

1389. See FED. R. CIV. P. 56 advisory committee’s note to the 2010 amendments. For example,

the Local Rules of the Southern District of Texas, amended in November 2018, now require a reply

to be filed “within 7 days from the date the response is filed.” S.D. TEX. CIV. R. 7.4; N.D. TEX. CIV.

R. 7.1(f) (“Unless otherwise directed by the presiding judge, a party who has filed an opposed

motion may file a reply brief within 14 days from the date the response is filed.”).

1390. See, e.g., Garner v. Christu Health, No. H-10-3947, 2011 WL 5979220, at *1 (S.D. Tex.

Nov. 29, 2011) (“The court granted defendants’ motion for summary judgment as being unopposed

when plaintiff failed to respond as ordered.”); see also S.D. TEX. CIV. R. 7.4 (“Failure to respond

will be taken as a representation of no opposition.”); W.D. TEX. CIV. R. 7(e)(2) (“If there is no

response filed within the time period prescribed by this rule, the court may grant the motion as

unopposed.”).

1391. Alsobrook v. GMAC Mortg., L.L.C., 541 F. App’x 340, 342 (5th Cir. 2013) (per curiam);

see also Luera v. Kleberg County, 460 F. App’x 447, 449 (5th Cir. 2012) (per curiam) (“We have

approached the automatic grant of a dispositive motion, such as a grant of summary judgment based

solely on a litigant’s failure to respond, with considerable aversion; and we have permitted such

dismissals only when there is a record of extreme delay or contumacious conduct.”); Watson v.

United States, 285 F. App’x 140, 143 (5th Cir. 2008) (per curiam) (“We have previously recognized

the power of district courts to adopt local rules requiring parties who oppose motions to file

statements of opposition. However, we have not approved the automatic grant, upon failure to

comply with such rules, of motions that are dispositive of the litigation.” (citations omitted) (internal

quotation marks omitted)).

1392. Alsobrook, 541 F. App’x at 342; see also Ervin v. Sprint Commc’ns Co., 364 F. App’x

114, 116 (5th Cir. 2010) (per curiam) (affirming the district court’s grant of summary judgment

based upon the finding that, regardless of the plaintiff’s failure to respond, the defendant had offered

evidence sufficient to meet its summary judgment burden).

1393. FED. R. CIV. P. 56(d); see also Bradley Scott Shannon, Why Denials of Summary

Judgment Should Be Appealable, 80 TENN. L. REV. 45, 57 (2012) (“[S]ubdivision [56(d)] virtually

assures that a plaintiff will get the time necessary to amass the information that she needs to avoid

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A nonmovant must enunciate specific reasons, by affidavit or declaration,

1394

why it is unable to present facts essential to justify its opposition.

1395

Upon

the nonmovant’s request, the court may defer consideration of the summary

judgment motion, allow additional time for the nonmovant to conduct

discovery, or “issue any other appropriate order.”

1396

Failure by a nonmovant

to seek relief under Rule 56(d) could lead to the court’s consideration and

entry of summary judgment,

1397

as well as the nonmovant’s waiver of a

prematurity argument on appeal.

1398

Although the Fifth Circuit has previously commented that “a

continuance of a motion for summary judgment for purposes of discovery

should be granted almost as a matter of course,”

1399

such relief is not

automatic, and a party’s failure to timely file or to articulate specific facts in

support of its motion for continuance are grounds for denial.

1400

The plain

an adverse ruling. . . .”). A district court’s denial of a Rule 56(d) motion is reviewed on appeal for

abuse of discretion. Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (per curiam).

1394. Pre-amendment Rule 56 did not explicitly allow the use of declarations when seeking a

continuance. FED. R. CIV. P. 56(f) (2009).

1395. FED. R. CIV. P. 56(d); see also Prospect Capital Corp. v. Mutual of Omaha Bank, 819 F.3d

754, 757 (5th Cir. 2016) (“[A] party must ‘set forth a plausible basis for believing that specified

facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the

emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.’”

(quoting Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)));

Juarez v. Brownsville Indep. Sch. Dist., No. B-09-14, 2010 WL 1667788, at *14 (S.D. Tex. Apr.

23, 2010) (granting the plaintiff’s request for additional discovery when the plaintiff demonstrated

specifically who he needed to depose, the testimony he sought to elicit from such deposition, and

the relevancy of the testimony to the pending motion for summary judgment).

1396. FED. R. CIV. P. 56(d). Unlike the current version of the Rule as provided in Rule 56(d),

prior to the 2010 amendments, Rule 56(f)(2) specifically mentioned a court’s power to “order a

continuance.” FED. R. CIV. P. 56(f) (2009). The 2010 Advisory Committee Notes clarify that the

former Rule 56(f) is carried over without substantial change into the current Rule 56(d), such that

“[a] party who seeks relief under subdivision (d) may seek an order deferring the time to respond to

the summary-judgment motion.” FED. R. CIV. P. 56 advisory committee’s note to the 2010

amendments.

1397. See FED. R. CIV. P. 56(e)(2), (3) (permitting the court to consider facts not adequately

responded to as undisputed and allowing the entry of summary judgment based on such a failure by

the nonmovant).

1398. Jenkins v. Bristol-Myers Squibb Co., 689 F. App’x 793, 797 (5th Cir. 2017) (per curium)

(“We have repeatedly ‘foreclosed a party’s contention on appeal that it had inadequate time to

marshal evidence to defend against summary judgment when the party did not seek Rule 56(d) relief

before the district court issued its summary judgment ruling.’” (alterations omitted) (quoting Ferrant

v. Lowe’s Home Ctrs., Inc., 494 F. App’x 458, 463 (5th Cir. 2012))); see also Carner v. La. Health

Serv. & Indem. Co., 442 F. App’x 957, 961 (5th Cir. 2011) (per curiam); Tate v. Starks, 444 F.

App’x 720, 730 & n.12 (5th Cir. 2011) (Smith, J., dissenting).

1399. Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 963 (5th Cir. 2009)

(quoting Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991)); see also Castro

v. Tex. Dep’t Criminal Justice, 541 F. App’x 374, 377 (5th Cir. 2013) (“Rule 56(d) is broadly

favored and should be liberally granted.” (internal quotation marks omitted)).

1400. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 257 (5th Cir. 2013)

(affirming the district court’s denial of a motion for continuance that was filed late and that failed

to state specific facts in support); Biles, 714 F.3d at 893–95 (evaluating the sufficiency of the

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language of Rule 56(d) requires specific reasons to support a motion for

continuance,

1401

the burden is on the party seeking discovery,

1402

and

appellate review is limited by an abuse of discretion standard.

1403

For these

reasons, a party seeking a continuance should craft its motion with the goal

of convincing the court that the requested relief is more than a mere fishing

expedition, is likely to lead to relevant and controverting evidence, and is not

due to the moving party’s own lack of diligence.

1404

When seeking a

continuance, a party should consider filing discovery requests concurrently

with a Rule 56(d) motion.

In contrast, the party moving for summary judgment and opposing a

Rule 56(d) continuance should, if relevant, argue that the nonmovant’s

discovery requests are simply a delay tactic. When ruling on a Rule 56(d)

motion, a district court “may not simply rely on vague assertions that

additional discovery will produce needed, but unspecified, facts.”

1405

Moreover, the Fifth Circuit has held that a “plaintiff’s entitlement to

discovery prior to a ruling on a summary judgment motion may be cut off

when, within the trial court’s discretion, the record indicates that further

discovery will not likely produce facts necessary to defeat the motion.”

1406

As such, when seeking denial of a continuance, a party should emphasize to

the court if the Rule 56(d) motion is based on vague or undisputed facts,

involves pure questions of law, or relates to immaterial issues.

1407

Ultimately, the determination of whether a movant’s motion for

summary judgment is premature may be tied closely to the time the case has

been pending. In Celotex, for example, the Supreme Court found that the one

purported discovery—a deposition—to conclude that the district court’s denial was not an abuse of

discretion, given that the deposition would not have influenced the outcome of the case).

1401. FED. R. CIV. P. 56(d).

1402. Davila v. United States, 713 F.3d 248, 264 (5th Cir. 2013).

1403. Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (per curiam).

1404. See Winfrey v. San Jacinto County, 481 F. App’x 969, 982–83 (5th Cir. 2012) (ruling that

the district court abused its discretion by failing to allow the nonmovant the opportunity to conduct

additional discovery on a key issue when the nonmovant identified fifteen additional areas of

discovery that were allegedly necessary to adequately respond); State Farm Fire & Cas., Co. v.

Whirlpool Corp., No. 3:10-CV-1922-D, 2011 WL 3567466, at *3–4 (N.D. Tex. Aug. 15, 2011)

(granting the plaintiff’s Rule 56(d) motion when the plaintiff provided evidence of correspondence

between the parties indicating a prior agreement to exchange discovery).

1405. Biles, 714 F.3d at 894 (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)).

1406. Larry v. Grice, 156 F.3d 181, 181 (5th Cir. 1998) (per curiam) (quoting Cormier v.

Pennzoil Expl. & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992)).

1407. See Biles, 714 F.3d at 894–95 (affirming the district court’s denial of a Rule 56(d) motion

on the finding that the requested discovery would have produced facts related to a material issue);

Zieche v. Burlington Res. Inc. Emp. Change in Control Severance Plan, 506 F. App’x 320, 324 n.4

(5th Cir. 2013) (per curiam) (finding appellant’s request for discovery to be “moot” given the failure

of his claim as a matter of law); Luera v. Kleberg County, 460 F. App’x 447, 450–51 (5th Cir. 2012)

(per curiam) (agreeing with the district court that the plaintiff’s Rule 56(d) motion lacked specificity

as to the purportedly discoverable facts).

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year between the commencement of the lawsuit and the filing of the summary

judgment motion was a sufficient time for discovery.

1408

By contrast, the

Fifth Circuit has reversed a summary judgment when filed shortly after the

answer to the complaint and before either party had conducted any

discovery.

1409

As little as nine months may constitute an adequate time for

discovery under existing precedent.

1410

II. STANDARDS OF PROOF FOR SUMMARY JUDGMENT MOTIONS

A. When the Movant Bears the Burden of Proof

Rule 56 no longer expressly segregates the ability of a “claiming party”

or “defending party” to move for summary judgment, but a claimant’s burden

remains unchanged.

1411

The language of Rule 56(a) states that any party may

move for summary judgment by identifying each claim or defense—or the

part of each claim or defense—on which summary judgment is sought.

1412

obtain summary judgment, a claimant must demonstrate affirmatively by

admissible evidence that there is no genuine dispute as to any material fact

concerning each element of its claim for relief.

1413

If the defendant has

asserted an affirmative defense, the plaintiff must identify the lack of any

genuine dispute as to any material fact concerning that defense.

1414

Because

the defendant has the ultimate burden of proof on affirmative defenses, the

plaintiff need only demonstrate the absence of evidence on the affirmative

defense.

1415

1408. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).

1409. Fano v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987).

1410. Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 721 (5th Cir. 1995).

1411. See FED. R. CIV. P. 56(a) (“Motion for Summary Judgment or Partial Summary Judgment.

A party may move for summary judgment, identifying each claim or defense . . . on which summary

judgment is sought.” (emphasis added)). For a detailed discussion of the procedural requirements a

moving party must satisfy when seeking summary judgment, see HITTNER ET AL., supra note 8, at

14-54 to -96.

1412. FED. R. CIV. P. 56(a). Among the 2010 amendments to Rule 56 was the explicit

clarification that a party may request summary judgment as to part of a claim or defense. See id.

(“A party may move for summary judgment, identifying each claim or defense—or the part of each

claim or defense—on which summary judgment is sought.” (emphasis added)).

1413. Id.; Celotex, 477 U.S. at 322–23; see also Ruby Robinson Co. v. Kalil Fresh Mktg., Inc.,

No. H-08-199, 2010 WL 3701579, at *3–4 (S.D. Tex. Sept. 16, 2010) (granting summary judgment

to an intervenor in an action under the Perishable Agricultural Commodities Act upon the finding

by the court that, based on the submitted evidence, two individual defendants were shareholders,

directors, and officers of a company in default and exercised sufficient control over the company to

justify individual liability for failure to maintain trust assets).

1414. See Celotex, 477 U.S. at 322–23.

1415. See id.

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B. When the Movant Does Not Bear the Burden of Proof

1. Movant’s Initial Burden

When a movant seeks summary judgment on a claim upon which it does

not bear the burden of proof, it bears an initial burden under Rule 56(a) to

demonstrate the absence of a genuine dispute as to any material fact on the

adverse party’s claim.

1416

The moving party cannot rely on conclusory

statements that the nonmovant has not presented evidence on an essential

element of its claim.

1417

Rather, the moving party must point out to the court

specifically the absence of evidence showing a genuine dispute.

1418

When making this showing, the movant must identify the specific issue

or issues on which it claims the nonmovant has no supporting evidence and

demonstrate the absence of such evidence.

1419

In so doing, the movant may:

1416. See FED. R. CIV. P. 56(a); see also In re Crawfish Producers, 852 F.3d 456, 463 (5th Cir.

2017) (recognizing nonmovant-plaintiff has burden of producing evidence creating genuine dispute

of material fact to defeat summary judgment); Chambers v. Sears Roebuck & Co., 428 F. App’x

400, 407 (5th Cir. 2011) (per curiam) (“The moving party . . . need not negate the elements of the

non-movant’s case. The moving party may meet its burden by pointing out the absence of evidence

supporting the nonmoving party’s case.” (citation omitted) (internal quotation marks omitted));

Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005) (“On summary judgment, the

moving party is not required to present evidence proving the absence of a material fact issue; rather,

the moving party may meet its burden by simply ‘pointing to an absence of evidence to support the

nonmoving party’s case.’” (quoting Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th

Cir. 2003))). This burden can be particularly difficult in certain kinds of cases. For example,

“[s]ummary judgment is rarely appropriate in negligence and products liability cases, even if the

material facts are not in dispute.” Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir. 1992). “An

inherently normative issue, such as whether a manufacturer has adequately warned a user that its

product is hazardous, is not generally susceptible to summary judgment. . . .” Id. “[T]he evidence

requires that a jury balance the breadth and force of the warning that the manufacturer provided—

if it even did so—against the nature and extent of the risk.” Id. at 847–48. The Fifth Circuit has

recognized two situations in which summary judgment might be proper in negligence or products

liability cases: “(1) the resolution of the summary judgment motion turns upon legal issues, and not

factual issues, and (2) the evidence was insufficient to create a genuine issue of material fact

concerning the defendant’s alleged failure to comply with a normative standard.” Id. at 848 (citation

omitted).

1417. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 (5th Cir. 2000); see also

Melton Truck Lines, Inc., 706 F. App’x 824, 827–29 (5th Cir. 2017) (finding the moving party,

although not bearing the burden of proof at trial, did not carry his summary judgment burden by

stating only that “Defendants respectfully request summary judgment on Plaintiff’s causes of action

because Plaintiff has no evidence to support these allegations”); James v. State Farm Mut. Auto.

Ins. Co., 719 F.3d 447, 466 (5th Cir. 2013) withdrawn, substituted by 743 F.3d 65 (5th Cir. 2014).

1418. Celotex, 477 U.S. at 322–25; Cont’l Cas. Co. v. Consol. Graphics, Inc. 646 F.3d 210, 218

(5th Cir. 2011); Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010). “[T]he nonmoving

party’s burden is not affected by the type of case; summary judgment is appropriate in any case

‘where critical evidence is so weak or tenuous on an essential fact that it could not support a

judgment in favor of the nonmovant.’” Little v. Liquid Air Corp, 37 F.3d 1069, 1075–76 (5th Cir.

1994) (per curiam) (quoting Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)).

1419. Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 407 (5th

Cir. 2012); Bradley v. Allstate Ins. Co., 620 F.3d 509, 516 (5th Cir. 2010). An interesting twist

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 Demonstrate the absence of evidence on a crucial element of the

opposing party’s case (e.g., plaintiff was asked to identify all

companies who manufactured the product and did not list the

defendant);

1420

 Present evidence that disproves some essential element of the

opposing party’s case (e.g., admissions);

1421

 Rely on the complete absence of proof of an essential element

of the nonmovant’s case.

1422

The Fifth Circuit discussed this burden in St. Paul Mercury Insurance

Co. v. Williamson.

1423

In Williamson, a plaintiff asserting a RICO claim

argued that the defendants did not meet their initial burden of pointing out

the absence of a triable issue.

1424

The Fifth Circuit disagreed, stating that the

defendants “did proffer evidence in support of their motion for summary

judgment. In addition to pointing out the lack of evidence supporting

[plaintiff’s] claims, they offered affidavits, depositions, and other relevant

documentary evidence.”

1425

Although the defendants’ evidence admittedly

related to the “pattern of racketeering” issue, rather than the pertinent

occurs when a party does not raise an issue until its reply brief. For example, in Vais Arms, Inc. v.

Vais, the movant raised an issue for the first time in his reply brief. Vais Arms, Inc. v. Vais, 383

F.3d 287, 292 (5th Cir. 2004). When objecting on appeal, the Fifth Circuit stated, as long as the

nonmovant had an adequate opportunity to respond prior to the trial court’s ruling on summary

judgment, it cannot complain on appeal that the issue was not timely raised. Id. But it appears, in

the Fifth Circuit at least, there must be some indication in the record that the nonmovant requested

an opportunity to respond or that the court invited or allowed the nonmovant to respond or the

granting of summary judgment will be reversible. See United States v. $92,203.00 in U.S. Currency,

537 F.3d 504, 507 n.1 (5th Cir. 2008) (refusing to consider evidence submitted post-briefing where

the nonmovant was not provided an opportunity to respond). As the Fifth Circuit stated in Gillaspy

v. Dallas Independent School District:

[T]here is no indication that [nonmovant] requested an opportunity to respond [to

evidence proffered in a reply brief], nor any indication that the district court invited or

allowed [nonmovant] an opportunity to file supplemental briefing. Because our

jurisprudence is less than clear, we think it prudent to reverse the summary

judgment . . . and remand the case to the district court to allow [nonmovant] to respond

and offer additional argument and evidence if she has any.

Gillaspy v. Dall. Indep. Sch. Dist., 278 F. App’x 307, 315 (5th Cir. 2008) (per curiam). Other courts

appear to have adopted this approach. See, e.g., Hughes v. Astrue, 277 F. App’x 646, 646–47 (8th

Cir. 2008) (per curiam) (allowing the district court to consider evidence submitted in a reply brief

as long as the opposing party has an opportunity to respond); Int’l Ctr. for Tech. Assessment v.

Johanns, 473 F. Supp. 2d 9, 21 (D.D.C. 2007) (considering evidence submitted post-briefing on the

ground that the opposing party had an opportunity to and did respond).

1420. Celotex, 477 U.S. at 319–20.

1421. Id. at 322–23.

1422. Id. at 325.

1423. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 (5th Cir. 2000).

1424. Id.

1425. Id.

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“investment in a RICO enterprise” inquiry, the Fifth Circuit found that the

plaintiffs satisfied Rule 56(c).

1426

2. Nonmovant’s Burden

If the movant satisfies its initial burden, the burden then shifts, and the

nonmovant must go beyond the pleadings and come forward with specific

facts demonstrating that there is a genuine dispute for trial.

1427

If the

nonmovant fails to meet this burden, summary judgment in the movant’s

favor is appropriate.

1428

The burden to show that there is a genuine dispute of

material fact is on the party who seeks to avoid summary judgment.

1429

Rule

56(e) no longer explicitly provides, in the same way that it did prior to the

2010 amendments, that if no response is filed, the court should, if appropriate,

grant summary judgment.

1430

However, under the Rule, “[i]f a party fails to

properly support an assertion of fact or fails to properly address another

party’s assertion of fact . . . the court may . . . consider the fact undisputed

for purposes of the motion [or] grant summary judgment.”

1431

Many

jurisdictions likewise have local rules providing that a nonmovant’s failure

to respond will be considered a representation of no opposition.

1432

The Fifth

Circuit has held, however, that a district court may not grant a summary

1426. Id.

1427. Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (“Once the movant

carries [its] burden, the burden shifts to the nonmovant to show that summary judgment should not

be granted.”); Wesley v. Gen. Drivers, Warehousemen & Helpers Local 745, 660 F.3d 211, 213

(5th Cir. 2011) (“Satisfying [the] initial burden shifts the burden to the non-moving party to produce

evidence of the existence of a material issue of fact requiring a trial.” (citing Celotex, 477 U.S. at

325)); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010) (“Once a party meets the initial

burden of demonstrating that there exists no genuine issue of material fact for trial, the burden shifts

to the non-movant to produce evidence of the existence of such an issue for trial.” (citing Celotex,

477 U.S. at 324)); Versai Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 735 (5th Cir. 2010)

(per curiam) (“[O]nce the moving party meets its initial burden of pointing out the absence of a

genuine issue for trial, the burden is on the nonmoving party to come forward with competent

summary judgment evidence establishing the existence of a material factual dispute.”).

1428. FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 322–23; Tran Enters., LLC v. DHL Express

(USA), Inc., 627 F.3d 1004, 1010 (5th Cir. 2011).

1429. See Newman v. Guedry, 703 F.3d 757, 766 (5th Cir. 2012).

1430. Compare FED. R. CIV. P. 56(e) (2009) (“Opposing Party’s Obligation to Respond. . . . If

the opposing party does not . . . respond, summary judgment should, if appropriate, be entered

against that party.”), with FED. R. CIV. P. 56(e) (2013) (providing for the entry of summary judgment

if “a party fails to properly support an assertion of fact or fails to properly address another party’s

assertion of fact”).

1431. FED. R. CIV. P. 56(e)(2), (3).

1432. See, e.g., S.D. TEX. CIV. R. 7.4; Flores v. United States, 719 F. App’x 312, 314 (5th Cir.

2018).

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judgment motion simply because the opposing party failed to respond, even

if the failure to oppose the motion does not comply with a local rule.

1433

III. RESPONDING TO THE MOTION FOR SUMMARY JUDGMENT

A. Supreme Court Precedent

The seminal case on summary judgments in federal court is Celotex

Corp. v. Catrett.

1434

Celotex involved a wrongful death action by a widow

who brought suit against an asbestos manufacturer for the death of her

husband.

1435

The defendant moved for summary judgment based on the

widow’s failure to produce evidence that her husband had been exposed to

its products.

1436

The defendant argued the widow’s response consisted of

inadmissible hearsay.

1437

The U.S. Supreme Court found that summary

judgment would be mandated if the plaintiff failed, after adequate time for

discovery, to present evidence of matters on which she had the burden of

proof.

1438

The Supreme Court remanded the case to the court of appeals to

determine whether the evidence submitted by the plaintiff was sufficient to

defeat the defendant’s motion for summary judgment.

1439

The Court’s ruling

illustrates that it was not the defendant’s burden to negate such issues.

1440

1433. Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010); see also Davis-Lynch,

Inc. v. Moreno, 667 F.3d 539, 550 (5th Cir. 2012) (“The moving party has the burden of establishing

that there is no genuine dispute of material fact; and, unless that party does so, a court may not grant

the motion, regardless whether any response is filed.”); Watson v. United States ex rel. Lerma, 285

F. App’x 140, 143 (5th Cir. 2008) (per curiam) (“We have previously recognized the power of

district courts to adopt local rules requiring parties who oppose motions to file statements of

opposition. However, we have not approved the automatic grant, upon failure to comply with such

rules, of motions that are dispositive of the litigation.” (citations omitted) (internal quotation marks

omitted)); Petri v. Kestrel Oil & Gas Props., L.P., 878 F. Supp. 2d 744, 750–51 (S.D. Tex. 2012)

(“A motion for summary judgment cannot be granted merely because no opposition has been filed,

even though a failure to respond violates a local rule. . . . A decision to grant summary judgment

based only on default is reversible error. Even if a plaintiff fails to file a response to a dispositive

motion despite a local rule’s mandate that a failure to respond is a representation of nonopposition,

the Fifth Circuit has rejected the automatic granting of dispositive motions without responses

without the court’s considering the substance of the motion.” (citation omitted)).

1434. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). See generally Adam N. Steinman, The

Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the

Trilogy, 63 WASH. & LEE L. REV. 81, 86–88 (2006) (discussing the impact of Celotex by providing

empirical analysis).

1435. Celotex, 477 U.S. at 319.

1436. Id. at 319–20.

1437. Id. at 320.

1438. Id. at 322–23.

1439. Id. at 327–28.

1440. Id. at 323.

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Rather, the plaintiff was required to demonstrate a genuine issue of material

fact to be heard at trial.

1441

In addition to Celotex, practitioners should be familiar with the other two

cases of the summary judgment trilogy, Matsushita Electric Industrial Co. v.

Zenith Radio Corp.

1442

and Anderson v. Liberty Lobby, Inc.

1443

In Matsushita and

Liberty Lobby, the Supreme Court elaborated on the meaning of the “genuine

issue of material fact” summary judgment standard. Liberty Lobby is instructive

on what evidence raises a “genuine issue” sufficient to preclude entry of

summary judgment.

1444

Liberty Lobby involved a libel suit against a magazine

brought by the founder and treasurer of a not-for-profit corporation.

1445

Given

the nature of the case, the lower court applied the actual malice requirement

enunciated by the Supreme Court in New York Times Co. v. Sullivan.

1446

The

issue before the Supreme Court was whether the heightened evidentiary

requirements applicable to proof of actual malice (i.e., the standard of clear and

convincing evidence) must be considered in ruling on a summary judgment

motion.

1447

Answering in the affirmative, the Court ruled that the trial judge

“must bear in mind the actual quantum and quality of proof necessary to support

liability.”

1448

When evaluating the evidence presented by the nonmovant, “the

judge must view the evidence presented through the prism of the substantive

evidentiary burden.”

1449

There is no genuine dispute for trial where the record,

taken as a whole, could not lead a rational trier of fact to find for the

nonmovant.

1450

Liberty Lobby also discussed the “materiality” element, stating that “[o]nly

disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.”

1451

The materiality

determination rests upon the substantive law governing the case, and the

substantive law identifies which facts are critical versus which facts are

1441. Id. at 324.

1442. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

1443. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

1444. Id. at 249–50.

1445. Id. at 244–45.

1446. Id. at 244. In Sullivan, the Supreme Court held that in a libel suit brought by a public

official, the First Amendment requires the plaintiff to show that the defendant acted with actual

malice in publishing the alleged defamatory statement. N.Y. Times Co. v. Sullivan, 376 U.S. 254,

279–80 (1964).

1447. Liberty Lobby, 477 U.S. at 247.

1448. Id. at 254.

1449. Id.

1450. See id. (“[T]here is no genuine issue if the evidence presented in the opposing affidavits

is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear

and convincing evidence.”); Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013).

1451. Liberty Lobby, 477 U.S. at 248.

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irrelevant.

1452

Materiality is only a criterion for categorizing factual disputes in

relation to the legal elements of the claim.

1453

In Matsushita, the Supreme Court considered what evidence was

required to preclude entry of summary judgment in an antitrust conspiracy

case.

1454

Under Section 1 of the Sherman Antitrust Act, to survive a

properly supported summary judgment motion by the defendants, the

plaintiffs had to present evidence that excluded the possibility that the

alleged conspirators acted independently.

1455

The Supreme Court thus

turned to the applicable substantive law to analyze what facts would be

material and, hence, crucial to the plaintiffs to withstand summary

judgment.

1456

Commenting on the requirement that an issue of fact must

be “genuine,” the Court explained that a genuine issue of material fact

does not exist if the nonmovant’s evidence merely shows that “there is

some metaphysical doubt as to the material facts.”

1457

Rather, a genuine

dispute as to a material fact exists only “[w]here the record taken as a

whole could . . . lead a rational trier of fact to find for the non-moving

party.”

1458

As stated in Liberty Lobby, “summary judgment will not lie if

the dispute about a material fact is ‘genuine,’ that is, if the evidence is

such that a reasonable jury could return a verdict for the nonmoving

party.”

1459

Moreover, there is an inverse relationship between the quality

of the evidence the nonmovant must present and the overall plausibility

of the nonmovant’s claims.

1460

If the claims of the party bearing the burden

1452. Id.

1453. Id.

1454. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–86 (1986).

1455. Id. at 588.

1456. Id. at 588–91 (discussing which facts would be necessary to prove a predatory pricing

scheme).

1457. Id. at 586. For application of Matsushita’s summary judgment rules in the employment

discrimination context, see Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir. 2001). In Evans,

the plaintiff sued the City of Houston for race and age discrimination and retaliation. Id. at 347. The

Fifth Circuit stated, “[m]erely disputing [an employer’s] assessment of [a plaintiff’s] work

performance will not necessarily support an inference of pretext.” Id. at 355 (alterations in original)

(quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999)). A plaintiff in

an employment discrimination suit (utilizing the burden-shifting scheme under McDonnell

Douglas) cannot survive summary judgment merely because she disagrees with the employer’s

characterization of her work history. Id. Rather, the issue is whether the employer’s perception of

the employee’s performance, accurate or not, was the true reason for the adverse employment action.

Id. “[T]he only question on summary judgment is whether the evidence of retaliation, in its totality,

supports an inference of retaliation.” Id. (quoting Shackelford, 190 F.3d at 407). Notably, in

University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that Title VII

retaliation claims must be proved according to traditional principles of but-for causation. Univ. of

Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).

1458. Matsushita, 475 U.S. at 587.

1459. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Haverda v. Hays County, 723 F.3d

586, 591 (5th Cir. 2013); R & L Inv. Prop., L.L.C. v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013).

1460. Matsushita, 475 U.S. at 587.

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of proof appear “implausible,” that party must respond to the motion for

summary judgment with more persuasive evidence to support its claim

than would otherwise be required.

1461

B. Items in Response

The nonmovant cannot establish a genuine dispute as to any

material fact by reference to the allegations contained in its

pleadings.

1462

To meet its burden and avoid summary judgment, the

nonmovant must respond with specific evidence showing that there is a

genuine dispute of material fact in the form of depositions, documents,

electronically stored information, affidavits, declarations, admissions on

file, or answers to interrogatories.

1463

The response may include:

1. admissible summary judgment evidence;

1464

2. a memorandum of points and authorities;

1465

1461. Id.

1462. Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010); Stahl v. Novartis Pharm. Corp.,

283 F.3d 254, 264–65 (5th Cir. 2002).

1463. FED. R. CIV. P. 56(c)(1)(A); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); James v.

State Farm Mut. Auto. Ins. Co., 719 F.3d 447, 466 (5th Cir. 2013) withdrawn, substituted by

743F.3d 65 (5th Cir. 2014); see also Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (per

curiam) (acknowledging a Title VII plaintiff’s ability to rely on either direct or circumstantial

evidence in response to a summary judgment motion).

1464. FED. R. CIV. P. 56(c)(2); see also Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635

F.3d 685, 692 (5th Cir. 2011) (stating that hearsay evidence inadmissible at trial cannot create a

genuine dispute of material fact to avoid summary judgment). But see Crostley v. Lamar County,

717 F.3d 410, 423–24 (5th Cir. 2013) (providing that hearsay statements can be considered by a

court when ruling on qualified immunity-based summary judgment motions grounded in whether

probable cause existed). Importantly, although summary judgment evidence must be admissible at

trial, summary judgment evidence need not be presented in admissible form. See FED. R. CIV. P.

56(c)(2); see also 3 JAMES M. WAGSTAFF, THE WAGSTAFF GROUP PRACTICE GUIDE: FEDERAL

CIVIL PROCEDURE BEFORE TRIAL § 43-VI(b)(3)(a) (2017). Summary judgment evidence may be

either admissible as presented or “capable of being presented in a form that would be admissible in

evidence.” Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017) (citing LSR Consulting, LLC

v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016)). “This flexibility allows the court to

consider the evidence that would likely be admitted at trial . . . without imposing on parties the time

and expense it takes to authenticate everything in record.” Id. (citing FED. R. CIV. P. 56(c)(1)(A));

see also Lee v. Offshore Logistical and Transport, L.L.C., 859 F.3d 353, 355–56 (5th Cir. 2017)

(vacating and remanding a summary judgment because the district court failed to consider an

unsworn report “solely because it was not sworn without considering [the nonmovant’s] argument

that [the witness] would testify to those opinions at trial and without determining whether such

opinions, as testified to at trial, would be admissible”). As a practical matter, a party submitting

summary judgment evidence that is not admissible as presented should be prepared to, upon

objection, demonstrate how such evidence will be presented in admissible form at trial. See Smith

v. Palafox, 728 F. App’x 270, 274 (5th Cir. 2018) (affirming district court’s exclusion of unsworn

expert reports because they “were not sworn or made under penalty of perjury and the [nonmovant]

has not explained how the reports could be reduced to admissible evidence at trial”).

1465. See, e.g., S.D. TEX. CIV. R. 7.1(B) (requiring opposed motions to be accompanied by

authority).

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3. any objections to the movant’s evidence;

1466

and

4. a request for more time for discovery, when appropriate.

1467

In addition, local rules of various jurisdictions might contain

specific content or formatting requirements.

1468

When evaluating the

motion, response, and all submissions, the court views all evidence in

the light most favorable to the nonmoving party and draws all reasonable

inferences in favor of the nonmoving party.

1469

The nonmovant need not

necessarily present his own summary judgment evidence. Instead, if the

nonmovant believes evidence already submitted by the movant indicates

the existence of a genuine issue of material fact, the nonmovant may

direct the court’s attention to that evidence and rely on it without

submitting additional evidence.

1470

In any event, the nonmovant must set

forth specific facts showing there is a genuine issue for trial.

1471

It is not

1466. FED. R. CIV. P. 56(c)(2); see also Cutting Underwater Techs. USA, Inc. v. ENI U.S.

Operating Co., 671 F.3d 512, 515 (5th

Cir. 2012) (observing that objections under Rule 56(c)(2)

have replaced the necessity of filing independent motions to strike).

1467. FED. R. CIV. P. 56(d); see also supra Part 2.I.D (elaborating on Rule 56(d)).

1468. See, e.g., S.D. TEX. CIV. R. 7.4(D) (requiring responses to be accompanied by a proposed

order); S.D. & E.D. N.Y. CIV. R. 56.1(b) (requiring a response to include a correspondingly

numbered paragraph responding to each numbered paragraph).

1469. Homoki v. Conversion Servs., Inc., 717 F.3d 388, 395 (5th Cir. 2013). However, “[a]

court is not required to draw legal inferences in the non-movant’s favor on summary judgment

review.” Crowell v. Shell Oil Co., 541 F.3d 295, 309 (5th Cir. 2008). The factual controversy will

be resolved in the nonmovant’s favor only “when both parties have submitted evidence of

contradictory facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013). Further,

“courts are not required to view evidence presented at summary judgment in the light most favorable

to the nonmoving party on the question of admissibility; rather, ‘the content of summary judgment

evidence must be generally admissible.’” Garcia v. U Pull It Auto & Truck Salvage, Inc., 657 F.

App’x 293, 297 (5th Cir. 2016) (emphasis added) (quoting Bryant v. Farmers Ins. Exch., 432 F.3d

1114, 1122 (10th Cir. 2005)). When a case is to be tried before a court rather than a jury “[t]he

decision-making process is tweaked slightly.” Manson Gulf, L.L.C. v. Modern Am. Recycling

Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017) (citing Nunez v. Superior Oil Co., 572 F.2d 1119,

1123–24 (5th Cir. 1978)). In such cases, “the court may conclude on the basis of the affidavits,

depositions, and stipulations before it, that there are no genuine issues of material fact, even though

the decision may depend on inferences to be drawn from what has been incontrovertibly proved.”

Nunez, 572 F.2d at 1123–24; see also Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305,

311 (5th Cir. 2017). A court may not, however, exercise this “inference-drawing function” when

the evidentiary facts are in dispute or there are issues of witness credibility. Manson, 878 F.3d at

134 (quoting Nunez, 572 F.2d at 1123–24).

1470. Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004) (directing

the nonmovant to point out “the precise manner in which the submitted or identified evidence

supports his or her claim”); Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 199–200

(5th Cir. 1988).

1471. Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir. 2003); see also Rizzo v.

Children’s World Learning Ctrs., Inc., 84 F.3d 758, 762 (5th Cir. 1996) (discussing the evidentiary

requirements of nonmovants); C.F. Dahlberg & Co. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th

Cir. 1988) (stating “[a]ppellant had the opportunity to raise [an] issue by way of affidavit or other

evidence in response” to the motion for summary judgment but elected to rely solely on legal

argument).

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enough simply to rely on evidence in the record to avoid summary

judgment without specifically referring to the precise evidence that

supports the nonmovant’s claim.

1472

The nonmovant must “articulate the

precise manner in which the submitted or identified evidence supports

his or her claim.”

1473

Moreover, even when evidence exists in the record

that would tend to support the nonmovant’s claim, if the nonmovant fails

to refer to it, that evidence is not properly before the court.

1474

It is not

the function of the court to search the record on the nonmovant’s behalf

for evidence that may raise a fact issue.

1475

IV. SUMMARY JUDGMENT EVIDENCE

Rule 56(c)(1)(a) provides that a party moving for or opposing a

summary judgment motion may support its assertions by “citing to particular

parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions,

interrogatory answers or other materials.”

1476

A. Declarations and Affidavits

Declaration or affidavits submitted in connection with summary

judgment proceedings must:

1. be based on personal knowledge;

1477

2. state facts as would be admissible in evidence (i.e., evidentiary facts,

not conclusions);

1478

and

1472. CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 273 (5th Cir. 2009).

1473. Id. (quoting Smith, 391 F.3d at 625).

1474. Id. In CQ, Inc., the Fifth Circuit found that the respondent sufficiently referred to evidence

in the record by cross-citing its own motion for summary judgment. Id. at 274.

1475. Huffman v. Union Pac. R.R., 683 F.3d 619, 626 (5th Cir. 2012); Wease v. Ocwen Loan

Servicing, No. 17-10574, 2019 WL 97372, at *6 (5th Cir. Jan. 4, 2019).

1476. FED. R. CIV. P. 56(c)(1)(A). “As indicated by the ending reference to ‘other materials,’

the particular forms of evidence mentioned in the rule are not the exclusive means of presenting

evidence on a Rule 56 motion.” 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 2723 (4th ed. 2018).

1477. FED. R. CIV. P. 56(c)(4); Campbell Harrison & Dagley, L.L.P. v. PBL Multi-Strategy

Fund, L.P., 744 F. App’x 192, 195 (5th Cir. 2018); DIRECTV, Inc. v. Budden, 420 F.3d 521, 529–

30 (5th Cir. 2005) (explaining that a summary judgment affidavit need not explicitly state that it is

based on personal knowledge and stating “there is no requirement for a set of magic words”); see

also De la O v. Hous. Auth. of El Paso, 417 F.3d 495, 501–02 (5th Cir. 2005) (rejecting affidavit as

based on speculation rather than personal knowledge); FDIC v. Selaiden Builders, Inc., 973 F.2d

1249, 1254 n.12 (5th Cir. 1992); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77,

80–81 (5th Cir. 1987).

1478. FED. R. CIV. P. 56(c)(2); First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th

Cir. 2009) (“[A] summary assertion made in an affidavit is simply not enough proof to raise a

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3. affirmatively demonstrate that the affiant is competent to testify to

the matters stated in the affidavit.

“[U]nsupported affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for

summary judgment.”

1479

Similarly, “a parties’ uncorroborated self-serving

testimony cannot prevent summary judgment, particularly if the

overwhelming documentary evidence supports the opposite scenario.”

1480

Nor can a party create an issue of fact merely by presenting testimony through

a declaration that contradicts previous sworn testimony, such as deposition

testimony.

1481

From a practical standpoint, failure to produce opposing

affidavits frequently will doom an otherwise meritorious response.

Formal affidavits are no longer required under the Federal Rules.

1482

Rather, for summary judgment purposes, pursuant to 28 U.S.C. § 1746,

written unsworn declarations, certificates, verifications, or statements are

allowed to substitute for affidavits as long as they are subscribed in proper

genuine issue of material fact.”); De la O, 417 F.3d at 502 (“Statements made on information and

belief do not constitute proper summary judgment evidence under rule 56(e).”); Crescent Towing

& Salvage Co. v. M/V Anax, 40 F.3d 741, 745 (5th Cir. 1994) (holding mere conclusions and

statements that a document exists are insufficient for summary judgment); Salas v. Carpenter, 980

F.2d 299, 305 (5th Cir. 1992) (explaining that conclusory assertions are not admissible as summary

judgment evidence); Walker v. SBC Servs., Inc., 375 F. Supp. 2d 524, 535 (N.D. Tex. 2005)

(“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not

competent summary judgment evidence.”); see also Okoye v. Univ. of Tex. Houston Health Sci.

Ctr., 245 F.3d 507, 515 (5th Cir. 2001) (noting the employee’s statement in a Title VII

discrimination suit was unsworn and, therefore, was not competent summary judgment evidence);

Wismer Distrib. Co. v. Brink’s Inc., No. Civ.A.H-03-5897, 2005 WL 1840149, at *6 (S.D. Tex.

Aug. 2, 2005) (“Affidavits supporting or opposing summary judgment must ‘set forth facts that

would be admissible in evidence.’” (quoting FED. R. CIV. P. 56(e))).

1479. Shaboon v. Duncan, 252 F.3d 722, 736 (5th Cir. 2001) (alteration in original); see also

Perkins v. Bank of Am., No. 14-20284, 2015 WL 64870, at *3 (5th Cir. Jan. 6, 2015) (per curiam);

Corley v. Prator, 290 F. App’x 749, 754 (5th Cir. 2008) (per curiam).

1480. Vinewood Capital, LLC v. Dar Al-Maal Al-Islami Trust, 541 F. App’x 443, 447–48 (5th

Cir. 2013). However, the Fifth Circuit has indicated that, when faced with conflicting affidavits, a

district court should not discredit a nonmovant’s affidavit solely because it appears self-serving. See

LegacyRG, Inc. v. Harter, 705 F. App’x 223, 230–31 (5th Cir. 2017) (citing Heinsohn v. Carabin &

Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016)) (holding district court erred in crediting movant’s

affidavit but rejecting nonmovant’s affidavit as self-serving).

1481. See First Colony Life Ins. Co., 555 F.3d at 181 (“[A] summary assertion made in an

affidavit is simply not enough proof to raise a genuine issue of material fact.”); see also In re

Deepwater Horizon, 857 F.3d 246, 250 (5th Cir. 2017) (“It is . . . well-established that a non-movant

‘cannot create a genuine issue of fact sufficient to survive summary judgment simply by

contradicting his or her own previous statement without explaining the contradiction or attempting

to resolve the disparity.’”). Compare Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23

(5th Cir. 1992) (rejecting the use of an affidavit to contradict the affiant’s previous sworn deposition

testimony), with Randall v. Dall. Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988) (per curiam)

(“[I]f conflicting inferences may be drawn from a deposition and from an affidavit filed by the same

party . . . , a fact issue is presented.”).

1482. FED. R. CIV. P. 56 advisory committee’s note to the 2010 amendments.

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form as true under penalty of perjury.

1483

Affidavits or declarations submitted

in bad faith or solely for the purpose of delay may result in sanctions

including costs, attorney’s fees, and contempt of court.

1484

B. Documents and Discovery Products

Rule 56(e)’s former requirement that sworn or certified copies of all

documents or parts of documents referred to in a declaration must be attached to

the declaration or served concurrently was omitted as part of the 2010

amendments.

1485

However, as a practical matter, litigants should always attach

such documents to their motions. Moreover, practitioners (particularly those

filing voluminous documents) citing to affidavits or declarations that themselves

cite to documents in the record should clearly indicate in the body of the motion

or response specifically where the fact in question can be found in the record.

1486

Summary judgment evidence may also consist of deposition testimony,

interrogatory answers, stipulations, or admissions.

1487

As with other

documentary evidence, these discovery documents must be either properly

authenticated (for example, by affidavit or declaration establishing the

accuracy of the attached copy) or capable of otherwise being presented in

admissible form.

1488

Only those portions of deposition testimony otherwise

admissible at trial are proper summary judgment proof.

1489

The party submitting deposition testimony transcripts as summary

judgment evidence should identify the precise sections of the testimony that

support the party’s position.

1490

“Rule 56 does not impose upon the district

court a duty to sift through the record in search of evidence to support a

1483. 28 U.S.C. § 1746 (2018); Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013);

Mutuba v. Halliburton Co., 949 F. Supp. 2d 677, 684 (S.D. Tex. 2013).

1484. FED. R. CIV. P. 56(h); see also Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349

(5th Cir. 2007) (declining to award sanctions on the finding that an inconsistency between a

declaration and prior deposition testimony did not constitute a bad faith submission).

1485. FED. R. CIV. P. 56 advisory committee’s note to the 2010 amendments. The former

requirement was “omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a

statement or dispute of fact be supported by materials in the record.” Id.

1486. See FED. R. CIV. P. 56(c)(1).

1487. FED. R. CIV. P. 56(c)(1)(A).

1488. FED. R. CIV. P. 56(c)(2) (“A party may object that the material cited to support or dispute

a fact cannot be presented in a form that would be admissible in evidence.”); see also supra note

1464 and accompanying text (discussing the admissibility of summary judgment evidence).

1489. See, e.g., Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (stating that on a motion

for summary judgment, the evidence proffered by the plaintiff to satisfy his burden of proof must

be competent and admissible at trial); Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387–

88 (5th Cir. 2009) (“The admissibility of evidence ‘is governed by the same rules, whether at trial

or on summary judgment.’” (quoting First United Fin. Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135,

136–37 (5th Cir. 1996))).

1490. See FED. R. CIV. P. 56(c)(3) (“The court need consider only the cited materials . . . .”).

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party’s opposition to summary judgment.”

1491

Consequently, the district

court likely will not search through voluminous transcripts to find the

testimony that allegedly raises a genuine dispute as to any material fact.

1492

Admissions made pursuant to Federal Rule of Civil Procedure 36 are

conclusive as to the matters admitted.

1493

These admissions “cannot be

overcome at the summary judgment stage by contradictory affidavit

testimony or other evidence in the summary judgment record.”

1494

Rather, if

a party seeks to avoid the consequences of failing to timely respond to Rule

36 requests for admissions, it should move the court to amend, quash, or

withdraw the admissions in accordance with Rule 36(b).

1495

C. Pleadings

In federal court, verified pleadings may be treated as affidavits if they

conform to the requirements of admissibility set forth by Federal Rule of

Civil Procedure 56(c)(4), which requires the facts asserted to be within the

pleader’s personal knowledge and otherwise admissible evidence.

1496

Admissions by respondents in their pleadings, even if unverified, are

competent summary judgment evidence.

1497

As a practical matter, the use of cross-references to pleadings should be

kept to a minimum in summary judgment practice. Although Federal Rule of

Civil Procedure 10(c) provides that “statement[s] in a pleading may be

1491. Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013)

(per curiam); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak

v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see also R.P. ex rel. R.P. v. Alamo

Heights Indep. Sch. Dist., 703 F.3d 801, 811 (5th Cir. 2012) (“It is not the Court’s ‘duty to sift

through the record in search of evidence to support a party’s opposition to summary judgment.’”

(quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994))).

1492. Chambers v. Sears Roebuck & Co., 428 F. App’x 400, 408 (5th Cir. 2011) (per curiam)

(first citing De La O v. Hous. Auth. of El Paso 417 F.3d 495, 501 (5th Cir. 2005); then citing United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).

1493. FED. R. CIV. P. 36(b); Armour v. Knowles, 512 F.3d 147, 154 n.13 (5th Cir. 2007); In re

Carney, 258 F.3d 415, 420 (5th Cir. 2001).

1494. In re Carney, 258 F.3d at 420.

1495. FED. R. CIV. P. 36(b); In re Carney, 258 F.3d at 420.

1496. FED. R. CIV. P. 56(c)(4); see Smith v. Bank of Am., No. 2:11CV120–MPM–JMV, 2012

WL 3289080, at *2 (N.D. Miss. Aug. 10, 2012) (“In order for verified pleadings to constitute proper

summary judgment proof, they must conform to the requirements of affidavits, that is, they must

establish that the person making the affidavit is competent to testify to the matters in question, they

must show that the facts stated in the affidavit are based upon his personal knowledge, and they

must contain a clear description of factual information that would be admissible at trial, not mere

unsupported conclusions.”). Compare Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186,

194 (5th Cir. 1988) (recognizing the use of verified pleadings if the requirements of Rule 56(e) are

met), with City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (stating

that, in Texas practice, pleadings themselves do not constitute summary judgment proof).

1497. See Isquith, 847 F.2d at 195 (allowing defendants to rely upon the factual allegations of

the complaint as admissions or stipulations for the purpose of summary judgment).

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adopted by reference elsewhere in the same pleading or in any other pleading

or motion,”

1498

counsel’s use of this tactic should be used sparingly—

especially in cases with numerous pleadings. In CQ, Inc. v. TXU Mining Co.,

the Fifth Circuit addressed the issue of whether a respondent to a summary

judgment motion adequately referred to evidence in the record sufficient to

demonstrate a genuine issue of material fact by simply cross-citing its own

motion for summary judgment.

1499

In that case, although the court “decline[d]

to endorse a bright-line rule,” it found the respondent’s “targeted cross-

citation to [its] own motion” sufficiently referred to evidence in the record to

support its notion that a genuine issue of material fact existed in the case.

1500

Nevertheless, to ensure one’s arguments and supporting evidence are

properly considered, the better approach for practitioners is to attach all

pertinent exhibits to the motion currently pending before the court and

“articulate the precise manner in which the submitted . . . evidence supports

[the] claim.”

1501

More importantly, local rules may require that summary

judgment evidence be included in an appendix attached to the motion.

1502

D. Expert Testimony

An expert’s testimony must be relevant and reliable in order to be

considered competent summary judgment evidence.

1503

The three U.S.

Supreme Court cases on admissibility of expert testimony regarding

“scientific, technical, or other specialized knowledge”

1504

—Daubert v.

1498. FED. R. CIV. P. 10(c).

1499. CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 274 (5th Cir. 2009).

1500. Id.

1501. Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004); TXU

Mining Co., 565 F.3d at 274 n.3.

1502. See, e.g., N.D. TEX. CIV. R. 7.1(i)(1) (“A party who relies on materials—including

depositions, documents, electronically stored information, affidavits, declarations, stipulations,

admissions, interrogatory answers, or other materials—to support or oppose a motion must include

the materials in an appendix.”); S.D. TEX. CIV. R. 7.7 (“If a motion or response requires

consideration of facts not appearing of record, proof by affidavit or other documentary evidence

must be filed with the motion or response.”).

1503. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). “The proponent of

an expert’s testimony need not prove the testimony is factually correct, but rather need only prove

by a preponderance of the evidence the testimony is reliable.” Paz v. Brush Engineered Materials,

Inc., 555 F.3d 383, 388 (5th Cir. 2009). Nor is there a “requirement that an expert derive his opinion

from ‘firsthand knowledge or observation.’” Deshotel v. Wal-Mart La., 850 F.3d 742, 746–47 (5th

Cir. 2017) (quoting Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 876 (5th Cir. 2013)). In

addition, a party should timely designate its experts in order to avoid a motion to strike by the

opposition. See, e.g., Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 882–84 (5th Cir.

2004) (holding that the trial court did not abuse its discretion by barring expert due to untimely

designation per Rule 26(a)(2)(A)).

1504. FED. R. EVID. 702.

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Merrell Dow Pharmaceuticals, Inc.,

1505

General Electric Co. v. Joiner,

1506

and Kumho Tire Co. v. Carmichael

1507

—set out the standards by which

federal trial courts must evaluate expert testimony.

1508

Daubert mandates that trial judges, in accordance with Federal Rules of

Evidence 104(a) and 702, act as “gatekeepers” by excluding unreliable

scientific evidence.

1509

In performing this function, the district court must

determine whether the proffered scientific testimony is grounded in the

methods and procedures of science by examining a nonexhaustive list of

factors.

1510

Those factors include: (1) whether the theory or technique can be

(and has been) tested; (2) whether the theory or technique has been subjected

to peer review and publication; (3) the known or potential rate of error; and

(4) the degree of acceptance within the scientific community.

1511

In Joiner, the Supreme Court considered the standard of review to apply

in reviewing a district court’s exclusion of expert testimony under

Daubert.

1512

The district court in Joiner excluded the opinions of the

plaintiff’s expert under Daubert and granted the defendant’s motion for

summary judgment.

1513

The U.S. Court of Appeals for the Eleventh Circuit

reversed, stating that the Federal Rules of Evidence displayed a preference

for admissibility of expert testimony that warranted a particularly stringent

standard of review.

1514

The Supreme Court granted certiorari to consider the

appropriate standard of review for the appellate courts in reviewing a trial

court’s decision to admit or exclude evidence under Daubert.

1515

The Court

held that the abuse of discretion standard was appropriate, rather than the

more stringent standard suggested by the Eleventh Circuit.

1516

In Kumho Tire, the Supreme Court granted certiorari to resolve

confusion in the lower courts regarding whether Daubert’s standards related

only to scientific evidence (often referred to as “hard science”), or whether

the gatekeeping function also applied to “technical, or other specialized

1505. Daubert, 509 U.S. 579.

1506. Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).

1507. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

1508. For a comprehensive discussion of these three cases, see Margaret A. Berger, The

Supreme Court’s Trilogy on the Admissibility of Expert Testimony, in REFERENCE MANUAL ON

SCIENTIFIC EVIDENCE 9 (2d ed. 2000).

1509. Daubert, 509 U.S. at 592, 597.

1510. Id. at 592–93.

1511. Id. at 593–94.

1512. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997).

1513. Joiner v. Gen. Elec. Co., 864 F. Supp. 1310, 1326–27 (N.D. Ga. 1994).

1514. Joiner v. Gen. Elec. Co., 78 F.3d 524, 529, 534 (11th Cir. 1996).

1515. Joiner, 522 U.S. at 138–39.

1516. Id. at 141–43.

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knowledge” categories of evidence (often referred to as “soft science”).

1517

The Court held that trial courts should apply the Daubert analysis to all expert

testimony, not just scientific testimony.

1518

The “trial court may consider one

or more of the more specific factors that Daubert mentioned when doing so

will help determine that testimony’s reliability.”

1519

The Court reiterated that

the test of reliability is “flexible” and the Daubert factors will not necessarily

apply to all experts in every case,

1520

a point often overlooked by practitioners

who attempt to completely exclude all experts identified in their opponent’s

case.

1517. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 146–47 (1999) (internal quotation marks

omitted). Federal Rule of Evidence 702 refers to “scientific, technical, or other specialized

knowledge,” FED. R. EVID. 702, but Daubert’s holding was limited by its facts to admissibility of

scientific evidence. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–90 (1993). Hard

science is traditionally characterized as science that is “experimentally based, where the data [that

is] collected is based on procedures [and] protocols that have been designed to have groups . . . that

act as controls.” Joseph Sanders, Milward v. Acuity Specialty Products Group: Constructing and

Deconstructing Science and Law in Judicial Opinions, 3 WAKE FOREST J.L. & POL’Y 141, 148

(2013). Soft science, on the contrary, is often defined by its inability to directly measure and test

the subject being studied. Tim Newton, Has Evolution Disproved God?: The Fallacies in the

Apparent Triumph of Soft Science, 4 LIBERTY U. L. REV. 1, 18–19 (2009). Traditional examples of

hard science include biology, physics, and chemistry, while soft science is normally associated with

such disciplines as economics, anthropology, and sociology. Brian R. Gallini, Police “Science” in

the Interrogation Room: Seventy Years of Pseudo-Psychological Interrogation Methods to Obtain

Inadmissible Confessions, 61 HASTINGS L.J. 529, 576 (2010). Courts and academics disagree on

the classification of medicine. Compare, e.g., Victor E. Schwartz & Cary Silverman, The Draining

of Daubert and the Recidivism of Junk Science in Federal and State Courts, 35 HOFSTRA L. REV.

217, 227 (2006) (characterizing “hard” sciences separately from medicine), with Walter R.

Schumm, Empirical and Theoretical Perspectives from Social Science on Gay Marriage and Child

Custody Issues, 18 ST. THOMAS L. REV. 425, 435–36 (2005) (labeling medicine as a “hard”

science), and Neal C. Stout & Peter A. Valberg, Bayes’ Law, Sequential Uncertainties, and

Evidence of Causation in Toxic Tort Cases, 38 U. MICH. J.L. REFORM 781, 874 n.302 (2005)

(criticizing “courts [that] have stated that clinical medicine is not a ‘hard’ science”). In Moore v.

Ashland Chemical, Inc., a panel of the Fifth Circuit held that Daubert was inapplicable to a

physician’s testimony because clinical medicine is not considered a “hard science.” Moore v.

Ashland Chem., Inc., 126 F.3d 679, 688 (5th Cir. 1997) (“Because the objectives, functions, subject

matter and methodology of hard science vary significantly from those of the discipline of clinical

medicine, as distinguished from research or laboratory medicine, the hard science techniques or

methods that became the “Daubert factors” generally are not appropriate for assessing the

evidentiary reliability of a proffer of expert clinical medical testimony.”), rev’d, 151 F.3d 269 (5th

Cir. 1998) (en banc). On rehearing en banc, the Fifth Circuit rejected the panel’s conclusion that the

testifying doctor’s opinion was not predicated on hard science and held that application of Daubert

to cases where expert testimony is based exclusively on experience or training is permissible, under

the correct circumstances. Moore, 151 F.3d at 275 n.6. In Kumho Tire itself, the expert testimony

at issue was proffered by a “tire failure analys[t].” Kumho Tire Co., 526 U.S. at 142.

1518. Kumho Tire Co., 526 U.S. at 141.

1519. Id.

1520. Id. at 141–42.

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Federal Rule of Evidence 702, which governs expert testimony, was

amended in 2000 in response to Daubert and its progeny.

1521

Rule 702 states:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion

or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine a

fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert has reliably applied the principles and methods to the

facts of the case.

1522

In federal court, the party seeking to proffer expert testimony must establish

the relevancy and reliability of its expert’s testimony—or risk the trial court’s

exclusion of the testimony pursuant to Daubert.

1523

These rules also may

implicate state summary judgment practice. For example, pursuant to Texas Rule

of Civil Procedure 166a(i),

1524

the respondent to a “no-evidence” motion must be

able to overcome a challenge pursuant to E.I. du Pont de Nemours & Co. v.

Robinson

1525

and Gammill v. Jack Williams Chevrolet, Inc.

1526

—the corollaries

to Daubert and Kumho in Texas state court—when relying upon expert testimony

to defeat a no-evidence summary judgment motion.

1527

Accordingly, neither the

movant nor the nonmovant in state or federal court should wait until trial to

develop an expert’s qualifications, given the potentially serious ramifications of

exclusion of the expert’s testimony at the dispositive motion stage.

1528

As a practice point, counsel should consider contemporaneously filing

a motion to exclude an expert together with its motion for summary

judgment. If the nonmovant’s case is dependent upon the admissibility of the

expert’s testimony, the district court may immediately grant summary

1521. FED. R. EVID. 702; Matosky v. Manning, 428 F. App’x 293, 297 (5th Cir. 2011) (per

curiam).

1522. FED. R. EVID. 702.

1523. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

1524. TEX. R. CIV. P. 166a(i) (“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.”).

1525. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 555–58 (Tex. 1995).

1526. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718–26 (Tex. 1998).

1527. See supra Part 1.II.H.1. Further, in United Blood Services v. Longoria, the Texas Supreme

Court required summary judgment proof of an expert’s qualifications in support of the response to

a summary judgment motion. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per

curiam). The court, using an abuse of discretion standard (similar to the U.S. Supreme Court in

Joiner), upheld the trial court’s exclusion of expert testimony. Id. at 31.

1528. See, e.g., id. at 30–31.

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judgment with or shortly after excluding the expert’s testimony. For example,

in Barrett v. Atlantic Richfield Co., the district court excluded expert

testimony because it was inadmissible under Daubert.

1529

After striking the

experts, the court granted summary judgment in the defendants’ favor.

1530

appeal, the Fifth Circuit affirmed the exclusion of the expert’s testimony

under Daubert because the proposed testimony consisted of “unsupported

speculation” and thus was unreliable.

1531

The Fifth Circuit further affirmed

the district court’s contemporaneous entry of summary judgment, reasoning,

after striking the expert testimony, that the plaintiffs failed to provide any

further summary judgment evidence in support of their claims.

1532

Additionally, in Michaels v. Avitech, Inc., a negligence action arising

from the crash of a private plane, the Fifth Circuit indirectly considered the

impact of Daubert expert testimony in the context of a summary judgment

motion.

1533

The district court struck the expert’s reports for violations of

discovery disclosure requirements.

1534

The Fifth Circuit held that the district

court erred in striking the reports, yet stated, “It remains to determine whether

the plaintiff can withstand summary judgment, even considering all of his

experts and reports.”

1535

The court noted that the theory of the plaintiff’s

expert “would likely have been inadmissible at trial under Daubert,” and it

was “perhaps remiss to attempt a Daubert inquiry at the appellate level when

the district court did not perform one.”

1536

Nevertheless, to determine whether

the plaintiff provided sufficient and competent summary judgment evidence

in his response, “it would be equally remiss for [the court] to ignore the fact

that a plaintiff’s expert evidence lacks any rational probative value.”

1537

summary judgment, if the evidence gives rise to numerous inferences that are

equally plausible, yet only one inference is consistent with the plaintiff’s

theory, the plaintiff does not satisfy his summary judgment burden, “absent

at least some evidence that excludes the other potential [proximate]

causes.”

1538

Because the plaintiff’s expert made no attempt to rule out other

sources of proximate cause, the court held that his testimony was not

“significantly probative” as to the issue of negligence and, thus, was

insufficient to preclude summary judgment.

1539

1529. Barrett v. Atl. Richfield Co., 95 F.3d 375, 382 (5th Cir. 1996).

1530. Id. at 383.

1531. Id. at 382 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993)).

1532. Id. at 383.

1533. Michaels v. Avitech, Inc., 202 F.3d 746, 750–53 (5th Cir. 2000).

1534. Id. at 750.

1535. Id. at 750–51 (citing In re TMI Litig., 193 F.3d 613, 716 (3d Cir. 1999)).

1536. Id. at 753.

1537. Id.

1538. Id.

1539. Id. at 754.

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E. Objections to Evidence

In federal practice, objections to summary judgment evidence must

be raised either orally or in writing by submission before formal

consideration of the motion; otherwise, objections are deemed waived.

1540

Under the revised Rule 56(c)(2), motions to strike are unnecessary; rather,

a party may simply object that the material cited is not admissible into

evidence.

1541

The party contesting the admissibility of an affidavit has the

burden to object to its inadmissible portions.

1542

Failure to object allows

the district court to consider the entire affidavit.

1543

V. RULE 12(B)(6) MOTION TO DISMISS TREATED AS RULE 56

MOTION FOR SUMMARY JUDGMENT

Where matters outside the pleadings are considered on a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), Rule 12(d)

requires the court to treat the motion as one for summary judgment and to

dispose of it as required by Rule 56.

1544

If a Rule 12(b)(6) motion to dismiss

has been converted to a Rule 56 motion for summary judgment, the summary

1540. See, e.g., Branton v. City of Moss Point, 261 F. App’x 659, 661 n.1 (5th Cir. 2008) (per

curiam) (finding any argument regarding the untimely production of an affidavit was waived due to

the objecting party’s failure to raise the issue in the district court); Donaghey v. Ocean Drilling &

Expl. Co., 974 F.2d 646, 650 n.3 (5th Cir. 1992) (citing McCloud River R.R. v. Sabine River Forest

Prods., Inc., 735 F.2d 879, 882 (5th Cir. 1984)); cf. Manderson v. Chet Morrison Contractors, Inc.,

666 F.3d 373, 381 (5th Cir. 2012) (“It is settled law that one waives his right to object to the

admission of evidence if he later introduces evidence of the same or similar import himself.”

(quoting United States v. Truitt, 440 F.2d 1070, 1071 (5th Cir. 1971) (per curiam))).

1541. FED. R. CIV. P. 56(c)(2); FED. R. CIV. P. 56 advisory committee’s note to the 2010

amendments (“There is no need to make a separate motion to strike.”).

1542. McCloud River R.R., 735 F.2d at 882 (“Sabine neither moved to strike the affidavit nor

raised an objection to consideration of the affidavit. Thus, it has waived its right to raise the

untimeliness issue on appeal.”).

1543. See id. at 882–83.

1544. FED. R. CIV. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.”); Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288

(5th Cir. 2004); Burns v. Harris Cty. Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998); Washington

v. Allstate Ins. Co., 901 F.2d 1281, 1283–84 (5th Cir. 1990); see also FED. R. CIV. P. 12(b)(6)

(allowing a party, by motion, to assert as a defense that the opposing party has in its pleadings

“fail[ed] to state a claim upon which relief can be granted”); FED. R. CIV. P. 12(c) (permitting a

party, after the pleadings are closed and before trial, to move for judgment on the pleadings); supra

note 1377 (discussing exceptions based on documents attached to a motion to dismiss and central

to the plaintiff’s complaint). But see Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)

(holding that a district court evaluating a motion to dismiss may properly take judicial notice of

public records without converting the motion into one for summary judgment).

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judgment rules govern the standard of review.

1545

In this manner, the

nonmovant is entitled to the procedural safeguards of summary judgment.

1546

Under Rule 56, the district court is not required to provide parties

notice beyond its decision to treat a Rule 12(b)(6) motion as one for

summary judgment.

1547

The standard is whether the opposing party had

notice after the court accepted for consideration matters outside the

pleadings.

1548

The notice required is only that the district court may treat

the motion as one for summary judgment, not that the court would in fact

do so.

1549

Washington v. Allstate Insurance Co. provides an example of this

principle.

1550

In Washington, the defendant attached a copy of a statute to its

motion to dismiss, and the plaintiff attached a copy of certain repair estimates

at issue to his response.

1551

After twenty days passed, the court treated the

defendant’s motion to dismiss as a motion for summary judgment and

granted the motion.

1552

The court determined the plaintiff was on notice that

the trial court could treat the motion to dismiss as one for summary judgment

because the parties attached documents to both the motion to dismiss and the

response; therefore, the notice provisions of Rule 12(b) and Rule 56 were not

violated.

1553

When a 12(b)(6) motion is converted to a summary judgment motion,

the disposition of the motion does not turn on whether the complaint states a

claim.

1554

Rather, disposition depends on whether the plaintiff raised an issue

of material fact which, if proved, would entitle him to relief as a matter of

1545. Nat’l Cas. Co. v. Kiva Const. & Eng’g, Inc., 496 F. App’x 446, 452 (5th Cir. 2012)

(“[W]here a district court bases its ‘disposition in part on the consideration of matters in addition to

the complaint . . . even if a motion to dismiss has been filed, the court must convert it into a summary

judgment proceeding and afford the plaintiff a reasonable opportunity to present all material made

pertinent to a summary judgment motion by Fed. R. Civ. P. 56.’” (quoting Murphy v. Inexco Oil

Co., 611 F.2d 570, 573 (5th Cir. 1980))); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773,

776 (5th Cir. 1997) (noting the review would be de novo, applying the same standards as the trial

court); Washington, 901 F.2d at 1284 (explaining that the appeals court may apply a summary

judgment standard of review despite the trial court’s mislabeling it as a 12(b)(6) motion).

1546. Washington, 901 F.2d at 1284.

1547. Id. (quoting Clark v. Tarrant County, 798 F.2d 736, 746 (5th Cir. 1986)).

1548. Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 283 n.7 (5th Cir. 1993) (noting

that even if summary judgment is granted sua sponte, the notice and response requirements of Rule

56 still govern).

1549. Guiles v. Tarrant Cty. Bail Bond Bd., 456 F. App’x 485, 487 (5th Cir. 2012); Isquith ex

rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 195–96 (5th Cir. 1988).

1550. Washington, 901 F.2d at 1284.

1551. Id.

1552. Id.

1553. Id. (noting that district courts have the authority to enter summary judgment sua sponte

as long as the nonmoving party was on notice to come forward with all evidence).

1554. Bossard v. Exxon Corp., 559 F.2d 1040, 1041 (5th Cir. 1977) (per curiam).

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law.

1555

For example, in Bossard v. Exxon Corp., the district court granted

the defendant’s 12(b)(6) motion to dismiss after considering information

outside the pleadings.

1556

The plaintiff appealed, arguing it stated a claim

upon which relief could be granted.

1557

The Fifth Circuit affirmed, noting that

once a court considers evidence outside the pleadings, a 12(b)(6) motion is

then treated as a motion for summary judgment, requiring the nonmovant to

show a genuine issue of material fact.

1558

VI. APPEALING SUMMARY JUDGMENTS

A. When Summary Judgments are Appealable

If the district court grants summary judgment and disposes of all claims,

the judgment is appealable.

1559

A district court’s denial of a motion for

summary judgment is not ordinarily reviewable on appeal.

1560

In this

situation, the court’s decision constitutes an interlocutory order from which

the right to appeal is unavailable until entry of judgment following a trial on

the merits.

1561

Specific exceptions to this rule exist in situations such as the

denial of qualified immunity or when both parties file motions for summary

judgment, and one of the motions is granted while the other is denied.

1562

1555. Id.

1556. Id.

1557. Id.

1558. Id.

1559. See Miller v. Gorski Wladyslaw Estate, 547 F.3d 273, 277 n.1 (5th Cir. 2008) (finding

appellant’s notice of appeal of partial summary judgment premature because the judgment “neither

disposed of the claims against all the defendants nor was it certified as a final judgment pursuant to

Federal Rule of Civil Procedure 54(b)”); Samaad v. City of Dallas, 940 F.2d 925, 940 (5th Cir.

1991) (“As a general rule, only a final judgment of the district court is appealable.”); cf. Brown v.

Offshore Specialty Fabricators, Inc., 663 F.3d 759, 764 (5th Cir. 2011) (reviewing on appeal the

dual grant of the defendants’ motion to dismiss and motion for summary judgment). Caution must

be taken in determining what is a final judgment for purposes of appeal. The pendency of a motion

for attorney’s fees, for example, does not prevent the running of time for filing a notice of appeal

on the merits. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199–203 (1988); see also Treuter

v. Kaufman County, 864 F.2d 1139, 1142–43 (5th Cir. 1989).

1560. Hogan v. Cunningham, 722 F.3d 725, 730 (5th Cir. 2013); see also Skelton v. Camp, 234

F.3d 292, 295 (5th Cir. 2000) (“A denial of summary judgment is not a final order within the

meaning of 28 U.S.C. § 1291.”).

1561. See Ozee v. Am. Council on Gift Annuities, Inc., 110 F.3d 1082, 1090–93 (5th Cir. 1997),

vacated sub nom. Am. Council on Gift Annuities v. Richie, 522 U.S. 1011 (1997) (mem.); Samaad,

940 F.2d at 940 (explaining the “collateral order doctrine” exception to the general rule that a court’s

denial of summary judgment is unappealable).

1562. See, e.g., Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 328 (5th Cir. 2014); Pasco ex

rel. Pasco v. Knoblauch, 566 F.3d 572, 576 (5th Cir. 2009); Tarver v. City of Edna, 410 F.3d 745,

749 n.2 (5th Cir. 2005); see also Liberty Mut. Ins. Co. v. Linn Energy, L.L.C., 574 F. App’x 425,

426 (5th Cir. 2014) (per curiam) (construing an insurance contract as a matter of law in a declaratory

judgment action). Interestingly, a denial of summary judgment based on qualified immunity is

immediately appealable only when it is based on a conclusion of law, while the denial of summary

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Further, upon certification by the trial judge, the district court’s denial of a

motion for summary judgment may be reviewed by permissive interlocutory

appeal,

1563

but certification as a permissive appeal is relatively rare.

1564

Similarly, the grant of summary judgment concerning fewer than all the

claims or parties in an action is not a final, appealable judgment.

1565

Yet, the

Fifth Circuit has stated that when a grant of summary judgment in favor of

one defendant near the time of trial will prejudice the trial preparation of

another defendant, the district court should continue the trial to allow an

interlocutory appeal.

1566

Moreover, the Fifth Circuit has repeatedly held—even following a full

trial on the merits—that orders denying summary judgment are not generally

appealable when final judgment adverse to the movant is rendered.

1567

In Ortiz

v. Jordan, the Supreme Court resolved a circuit split on this issue by

unanimously confirming the Fifth Circuit’s rule of law, holding that a party

may not “appeal an order denying summary judgment after a full trial on the

merits.”

1568

More recently, in Feld Motor Sports, Inc. v. Traxxas, L.P., the Fifth

Circuit clarified that “following a jury trial on the merits, this court has

jurisdiction to hear an appeal of the district court’s legal conclusions in denying

summary judgment, but only if it is sufficiently preserved in a Rule 50

motion.”

1569

The Fifth Circuit has likewise recognized that appellate courts

judgment based on qualified immunity is not immediately appealable if it is based on a factual

dispute. Oporto v. Moreno, 445 F. App’x 763, 764 (5th Cir. 2011) (per curiam) (dismissing an

appeal from the district court’s denial of summary judgment in a qualified immunity case “because

the order denying summary judgment was based on a dispute over material fact, not law, and is thus

not a final, appealable order”); Thibodeaux v. Harris County, 215 F.3d 540, 541 (5th Cir. 2000) (per

curiam).

1563. 28 U.S.C. § 1292(b) (2018); see also Doré Energy Corp. v. Prospective Inv. & Trading

Co., 570 F.3d 219, 224 (5th Cir. 2009) (noting the district court certified for interlocutory review a

partial summary judgment award pursuant to § 1292(b)); cf. FED. R. CIV. P. 54(b) (permitting appeal

from certain district court orders before the resolution of every issue in a case).

1564. Shannon, supra note 1393, at 53.

1565. See Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1325–29 (5th Cir. 1996); see also FED.

R. CIV. P. 54(b).

1566. Id. at 1328–29 (finding the timing of summary judgment did not warrant reversal and that

prejudice had not occurred).

1567. E.g., Gonzalez v. Fresenius Med. Care N. Am., 689 F.3d 470, 474 n.3 (5th Cir. 2012);

Becker v. Tidewater, Inc., 586 F.3d 358, 365 n.4 (5th Cir. 2009) (quoting Black v. J.I. Case Co., 22

F.3d 568, 572 (5th Cir. 1994)).

1568. Ortiz v. Jordan, 562 U.S. 180, 183–84 (2011).

1569. Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). A Rule 50

motion is a motion for judgment as a matter of law. FED. R. CIV. P. 50. In making a Rule 50

preservation a prerequisite to appealing a district court’s legal conclusions in denying summary

judgment, the Fifth Circuit joined the First, Fourth, and Eighth Circuits. Feld, 861 F.3d at 596 (first

citing N.Y. Marine & Gen. Ins. Co. v. Cont’l Cement Co., LLC, 761 F.3d 830, 838 (8th Cir. 2014);

then citing Ji v. Bose Corp., 626 F.3d 116, 128 (1st Cir. 2010); and then citing Chesapeake Paper

Prods. Co. v. Stone & Webster Eng’g Corp., 51 F.3d 1229, 1235 (4th Cir. 1995)). Other Circuits

have recognized a so-called “pure legal issue” exception, permitting an appeal of a summary

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have jurisdiction to review a district court’s legal conclusions in denying

summary judgment in bench trials.

1570

B. Standard of Review on Appeal

A district court’s grant of summary judgment is normally subject to

de novo review on appeal.

1571

The appellate court applies the same legal

standards as the district court.

1572

Accordingly, the appellate court will not

affirm a summary judgment ruling unless, after de novo review, the record

reflects “that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

1573

The Fifth Circuit has stated that “[w]hen a district court denies summary

judgment on the basis that genuine issues of material fact exist, it has made

two distinct legal conclusions: that there are ‘genuine’ issues of fact in

dispute, and that these issues are ‘material.’”

1574

The appellate court may

review a district court’s legal conclusion that issues are “material.”

1575

However, it may not review a district court’s conclusion that issues of fact

are “genuine.”

1576

Following this standard, the appellate court must review the evidence

and inferences to be drawn from the evidence in a light most favorable to the

judgment denial following a full trial on the merits—even absent the filing a Rule 50 motion—when

the denial involved a “pure question of law.” James C. Martin et al., There May Be Hope on the

Horizon Rule 50 Waivers and Summary Judgment Denials, 60 NO. 2 DRI FOR DEF. 12 (2018)

(collecting cases).

1570. Becker, 586 F.3d at 365 n.4.

1571. Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 365 (5th Cir. 2012). A notable

exception is when a court sua sponte grants summary judgment, which is subject to harmless error

review. Spring St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 436 (5th Cir. 2013). Moreover, when

reviewing district court decisions upholding or overturning a decision of an administrative agency,

such as the Board of Immigration Appeals, agency action is subject to a heightened level of

deference and is “reviewed solely to determine whether it is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” or whether it is not supported by substantial

evidence. Alaswad v. Johnson, 574 F. App’x 483, 485 (5th Cir. 2014) (per curiam).

1572. Duval v. N. Assurance Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013); Meza v. Intelligent

Mexican Mktg., Inc., 720 F.3d 577, 580 (5th Cir. 2013); Ass’n of Taxicab Operators USA v. City

of Dallas, 720 F.3d 534, 537 (5th Cir. 2013). Moreover, this same standard applies to the appellate

court’s review of the district court’s judgment on cross-motions for summary judgment. In re

Kinkade, 707 F.3d 546, 548 (5th Cir. 2013) (applying de novo review of the district court’s grant

of a cross-motion for summary judgment). However, on cross-motions for summary judgment, the

court reviews each party’s motion independently, “viewing the evidence and inferences in the light

most favorable to the nonmoving party.” Rossi v. Precision Drilling Oilfield Servs. Corp. Emp.

Benefits Plan, 704 F.3d 362, 365 (5th Cir. 2013).

1573. Meza, 720 F.3d at 580 (quoting FED. R. CIV. P. 56(a)).

1574. Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 379 (5th

Cir. 2005) (quoting Reyes v. City of Richmond, 287 F.3d 346, 350–51 (5th Cir. 2002)).

1575. Id. (quoting Reyes, 287 F.3d at 350–51).

1576. Id. (quoting Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc)).

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nonmovant.

1577

The court only considers admissible materials in the pretrial

record and generally “will not enlarge the record on appeal with evidence not

before the district court.”

1578

In contrast, the appellate court will decide

questions of law in the same manner as it decides questions of law outside

the summary judgment context—by applying de novo review.

1579

In diversity

actions, the appellate court reviews de novo the district court’s application of

state substantive law.

1580

The appellate court may affirm a summary

judgment on any ground supported by the record—even grounds other than

those stated by the trial court and even if the district court granted summary

judgment on incorrect grounds.

1581

The appellate court may affirm summary

judgment on grounds not raised by the trial court “where the lack of notice to

the nonmovant is harmless, such as where ‘the [unraised] issues were implicit

or included in those raised below or the evidence in support thereof, or . . . the

record appears to be adequately developed in respect thereto.’”

1582

Nonetheless, as a general principle in the Fifth Circuit, if a party does not

raise an issue before the district court on summary judgment, the party waives

that issue on appeal.

1583

1577. Clayton v. ConocoPhillips Co., 722 F.3d 279, 290 (5th Cir. 2013); see also Bussian v.

RJR Nabisco, Inc., 223 F.3d 286, 288, 302 (5th Cir. 2000) (reversing the grant of summary judgment

when “reasonable and fair-minded persons” could conclude from the summary judgment evidence

that the defendant was liable under ERISA for breach of fiduciary duty).

1578. Weathersby v. One Source Mfg. Tech., L.L.C., 378 F. App’x 463, 466 (5th Cir. 2010)

(per curiam); Michaels v. Avitech, Inc., 202 F.3d 746, 751 (5th Cir. 2000). Moreover, the Fifth

Circuit will not normally review summary judgment briefing that was not introduced at a subsequent

trial. Weathersby, 378 F. App’x at 466 (granting the appellee’s motion to strike the appellant’s

“improper references to his response to [appellee’s] motion for summary judgment in the district

court because the materials referred to therein were not introduced or admitted at trial” and

reasoning that citation should have been to the trial record, rather than summary judgment

materials).

1579. Michaels, 202 F.3d at 751.

1580. Mid-Continent Cas. Co. v. Eland Energy, Inc., 709 F.3d 515, 520 (5th Cir. 2013); Levy

Gardens Partners 2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d 622, 628 (5th Cir.

2013).

1581. Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th

Cir. 2014); Cambridge Integrated Servs. Grp., Inc. v. Concentra Integrated Servs., Inc., 697 F.3d

248, 255 (5th Cir. 2012).

1582. McIntosh v. Partridge, 540 F.3d 315, 326 (5th Cir. 2008) (alterations in original) (quoting

FDIC v. Lee, 130 F.3d 1139, 1142 (5th Cir. 1997)).

1583. Mid-Continent Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 113 (5th Cir. 2010);

see also Cox v. DeSoto County, 564 F.3d 745, 749 n.4 (5th Cir. 2009) (precluding the plaintiff from

relying upon a mixed-motive theory of discrimination when she did not raise it before the district

court). But see Greater Houston Small Taxicab Co. Owners Ass’n v. City of Houston, 660 F.3d 235,

239 n.4 (5th Cir. 2011) (finding that appellant did not waive an argument because “the argument on

the issue before the district court was sufficient to permit the district court to rule on it”).

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C. The District Court’s Order on Summary Judgment

Rule 56(a) provides that “[t]he court should state on the record the

reasons for granting or denying the motion.”

1584

In practice, because, in most

instances, there is no appellate review of summary judgment denials,

1585

district courts frequently issue denials without stating extensive reasons.

1586

In contrast, a prevailing movant should seek an order from the court with a

specific finding that the movant carried his burden of proof and there is no

genuine dispute as to any material fact. When a district court provides a

detailed explanation supporting the grant of summary judgment, the appellate

court need not “scour the entire record while it ponders the possible

explanations” for the entry of summary judgment.

1587

As such, the Fifth

Circuit has stated that a detailed discussion is of great importance.

1588

In all

but the simplest cases, a statement of the reasons for granting summary

judgment usually proves “not only helpful but essential.”

1589

The movant

should therefore submit a proposed order with reasons for granting the

motion rather than a form order merely stating that the motion is granted.

1590

1584. FED. R. CIV. P. 56(a).

1585. Supra text accompanying notes 1559–77.

1586. Arthur R. Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the

Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. REV 286, 311 n.92

(2013) (“[A] retired federal judge suggested that because summary judgment grants produce written

district court and court of appeals opinions and denials generally do not, other judges may be

influenced by the apparent frequency and broadened bases on which those grants are made.”). Even

when the court gives reasons for its denial, the “statement on denying summary judgment need not

address every available reason.” FED. R. CIV. P. 56 advisory committee’s note to the 2010

amendments. “[I]dentification of central issues may help the parties to focus further proceedings.”

Id. District courts are more likely to write on denials when faced with pure questions of law, such

as an insurance coverage dispute or a defendant asserting qualified immunity. See Hogan v.

Cunningham, 722 F.3d 725, 730 (5th Cir. 2013) (explaining that a district court must make

determinations of law when reviewing the denial of summary judgment on qualified immunity

grounds); La. Generating L.L.C. v. Ill. Union Ins. Co., 719 F.3d 328, 333 (5th Cir. 2013) (“The

district court’s interpretation of an insurance contract is a question of law subject to de novo

review.”).

1587. Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 418 (5th Cir. 2008)

(quoting Jot-Em-Down Store (JEDS), Inc. v. Cotter & Co., 651 F.2d 245, 247 (5th Cir. 1981)).

1588. McInrow v. Harris County, 878 F.2d 835, 835–36 (5th Cir. 1989).

1589. Gates, 537 F.3d at 418 (quoting Myers v. Gulf Oil Corp., 731 F.2d 281, 284 (5th Cir.

1984)).

1590. This is true for most motions, particularly dispositive ones, in federal court. In contrast,

Texas state courts may, and typically do, issue orders granting summary judgment without

expressing reasons.

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PART 3: STATE AND FEDERAL SUMMARY JUDGMENT PRACTICE—

A COMPARATIVE OVERVIEW

Thus far, this Article has discussed state and federal summary

judgments separately. This section compares the two jurisdictions and

highlights important aspects of summary judgment practice in each.

I. HISTORY

Although the Texas Supreme Court formally adopted Rule 166a

1591

1950, Texas state courts initially viewed summary judgments with hostility,

and the rule was relatively ineffective for the next three decades.

1592

In 1978,

in an attempt to encourage the use of summary judgment disposition, the

Texas Supreme Court revised Rule 166a to assist trial courts in ruling on

summary judgment motions and to better protect those rulings on appeal.

1593

As a result, courts began to recognize Rule 166a’s utility.

1594

Yet, more than

a decade later, practitioners and judges were still hesitant to use it.

1595

In federal courts, summary judgment procedure developed much earlier.

Congress enacted the federal summary judgment rule, Rule 56, in 1938.

1596

As occurred in state courts, federal courts initially viewed summary

judgments with skepticism

1597

—an early Fifth Circuit opinion cautioned that

“[s]ummary judgment procedure is not a catch penny contrivance to take

unwary litigants into its toils and deprive them of a trial.”

1598

With the U.S.

1591. Texas Rule of Civil Procedure 166a is the summary judgment rule.

1592. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979); Dorsaneo,

supra note 1, at 781–82; see e.g., Gaines v. Hamman, 358 S.W.2d 557, 562–63 (Tex. 1962);

Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952).

1593. See Clear Creek, 589 S.W.2d at 676; Dorsaneo, supra note 1, at 782. Specifically, revised

Rule 166a required issues to be “expressly presented to the trial court by written motion, answer, or

other response” or they would “not be considered on appeal as grounds for reversal.” Clear Creek,

589 S.W.2d at 676. This change was meant “to prevent the non-movant from laying behind the log

within his objections on appeal.” Id. at 675 (internal quotations omitted).

1594. Clear Creek, 589 S.W.2d at 676; Dorsaneo, supra note 1, at 782.

1595. See, e.g., Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Letter from Joe Jamail to

Chief Justice Phillips (May 9, 1997), http://courtstuff.com/trap/JJ.HTM [https://perma.cc/33S2-

42QR].

1596. Coleman, supra note 4, at 298.

1597. See id. at 299–300; see also Joe S. Cecil et al., A Quarter-Century of Summary Judgment

Practice in Six District Courts, 4 J. OF EMPIRICAL LEGAL STUD. 861, 862 (2007) (“Prior to the

Supreme Court’s trilogy of decisions in 1986, summary judgment was viewed as an underused and

somewhat awkward tool that invited judicial distrust.”); Marcy J. Levine, Summary Judgment: The

Majority View Undergoes a Complete Reversal in the 1986 Supreme Court, 37 EMORY L.J. 171,

173–84 (1988) (discussing early debate over the benefits of Rule 56).

1598. Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940). Indeed, the Fifth Circuit has

“offered a number of the most often quoted restrictive standards for summary judgment.” Cecil et

al., supra note 1597, at 874 n.43.

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Supreme Court’s 1986 trilogy of summary judgment decisions, however,

summary judgment practice began to play an influential role in federal

courts.

1599

Eleven years later, in 1997, the Texas Supreme Court authorized

the use of the no-evidence summary judgment motion, the advent of which

cemented summary judgment practice in state courts as a pivotal part of

modern civil litigation.

1600

II. BURDEN OF PROOF

Although Rule 56 and Rule 166a contain different language, in federal

court, when the movant bears the burden of proof at trial, its burden is that of

the “traditional” summary judgment movant in state court: the movant must

present competent evidence to prove its entitlement to summary judgment as

a matter of law.

1601

If, however, the nonmovant in federal court bears the

burden of proof at trial, it has the ultimate burden of presenting competent

evidence to avoid summary judgment.

1602

Stated another way, a party moving

for summary judgment under Rule 56 on a claim on which it does not bear

the burden of proof at trial need only point out the absence of evidence

supporting an essential element of the nonmovant’s case.

1603

Once a proper

motion for summary judgment is filed, the burden shifts to the nonmovant to

come forward with evidence sufficient to establish a genuine issue of material

fact on the disputed element.

1604

Today, the practical effect of what is required to meet the burden of

proof in state court is largely the same. But that has not always been true.

Until the 1997 amendment to Rule 166a, a party moving for summary

judgment in state court was limited to filing a traditional motion for summary

judgment, which required the movant “by competent proof, to disprove, as a

matter of law, at least one of the essential elements of the [nonmovant’s]

cause of action or establish one or more affirmative defenses as a matter of

law.”

1605

Under traditional motion for summary judgment practice, the

1599. Coleman, supra note 4, at 295; Cecil et al., supra note 1597, at 865; supra Part 2.III.A

(discussing the trilogy). But see Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court’s

Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 OHIO

ST. L.J. 95, 160 (1988) (arguing that prior to the trilogy “rule 56 had sufficient teeth to it that it was

used frequently and often.”).

1600. See Clore, supra note 12, at 817–19; see also supra Part 1.III.B.2 (historical

development).

1601. See Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (per curiam); see

also supra Part 1.III.A (traditional motions for summary judgment).

1602. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

1603. Id.; Tran Enters., LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1010 (5th Cir. 2011) (per

curiam); supra Part 2.II.B.

1604. Celotex, 477 U.S. at 322; Tran Enters., LLC, 627 F.3d at 1010; supra Part 2.II.B.

1605. Dorsaneo, supra note 1, at 783.

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burden of proof does not shift to the nonmovant unless and until the movant

establishes its entitlement to summary judgment as a matter of law, even if

the nonmovant bears the burden of proof at trial.

1606

Thus, the movant could

not move for summary judgment on the basis that the nonmovant had no

evidence to support its claim or affirmative defense.

In 1997, with the introduction of Rule 166a(i) (the no-evidence

summary judgment), the Texas Supreme Court adopted the federal

approach.

1607

However, practitioners in Texas state courts retain the option of

filing a traditional summary judgment motion.

The determination of whether a genuine issue of fact exists is the same

in state and federal courts. The reasonable juror standard applies, whereby

courts “may remove an issue from the jury’s consideration ‘where the facts

and the law will reasonably support only one conclusion.’”

1608

III. SUBJECT MATTER

Certain types of cases are particularly amenable to summary judgment

practice. For example, cases that turn on a court’s interpretation of a written

document, such as a contract, lease, or deed, attract summary judgment

motions in both state and federal courts.

1609

Differences in subject matter

between the two jurisdictions also make summary judgment practice in some

cases more common in one or the other. In state court, summary judgments

are often filed in insurance coverage disputes and oil and gas cases.

1610

federal court, summary judgments are particularly common in civil rights and

employment discrimination cases.

1611

IV. DEADLINES

The deadlines for filing and responding to summary judgment motions

in Texas state courts are keyed to the summary judgment hearing or

submission date.

1612

In state courts, a motion for summary judgment “shall

be filed and served at least twenty-one days before the time specified for

1606. Id.; see also supra Part 1.III.A (traditional motions for summary judgment).

1607. Clore, supra note 12, at 814.

1608. Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 436 (Tex. 2017) (quoting

Chandris, Inc. v. Latsis, 515 U.S. 347, 373 (1995)); see also Stewart v. Dutra Constr. Co., 543 U.S.

481, 496 (2005); see supra Part 1.III.B.1 (“Reasonable Juror” Test Applied to No-Evidence

Summary Judgments).

1609. See supra Part 1.VII; see also Cecil et al, supra note 1597, at 884.

1610. See supra Part 1.VII.

1611. Steven S. Gensler & Lee H. Rosenthal, Managing Summary Judgment, 43 LOY. U. CHI.

L.J. 517, 526 (2012); see also Cecil et al., supra note 1597, at 905–06.

1612. See TEX. R. CIV. P. 166a(c).

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hearing.”

1613

Absent leave of court, a response to a motion for summary

judgment should be filed and served “not later than seven days prior to the

day of the hearing.”

1614

“Unless a different deadline is established by local

rule, [a] reply may be filed [in state court] at any time before the hearing.”

1615

The date of hearing and a submission is important in state court practice

because if a hearing or submission date has not been set, or the nonmovant

has not received notice of such date, the nonmovant cannot calculate when

its response is due.

1616

In contrast, a motion for summary judgment in federal court may

generally be filed at any time until thirty days after the close of discovery.

1617

The Federal Rules of Civil Procedure no longer specify a deadline for filing

a response or reply.

1618

Rather, these deadlines are covered by local rules or

scheduling orders.

1619

While state courts may also set summary judgment

deadlines in a scheduling order, state court scheduling orders typically refer

generally to the deadline by which dispositive motions must be filed and do

not specify response and reply deadlines. Thus, the rule-set deadlines apply.

V. EVIDENCE

Presentation of summary judgment evidence is similar under Rule 166a

and Rule 56.

1620

Yet, there are nuances between the two.

First, in state court, a movant need not submit evidence in support of a

no-evidence summary judgment motion.

1621

Similarly, a federal movant need

not submit evidence in support of a Rule 56 motion for summary judgment

on claims on which the movant does not bear the burden of proof at trial.

1622

However, the burden of presenting evidence when filing a traditional

summary judgment motion in state court is unique in that the movant must

1613. Id.

1614. Id.

1615. Kent Rutter, Summary Judgment Motions and Responses: A Practical Checklist, 72

ADVOC., Fall 2015, at 30, 32; see Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort

Worth 2006, pet. denied); see also supra Part 1.I.F.

1616. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam);

Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex. App.—Corpus Christi 2003, pet.

denied). A district court’s granting of a summary judgment without notice to the nonmovant is

harmless when the court subsequently considers the response and reaffirms its ruling. Martin, 989

S.W.2d at 359.

1617. FED. R. CIV. P. 56(b).

1618. See FED. R. CIV. P. 56(b) advisory committee’s note to the 2010 amendments (“The

timing provisions in former subdivisions (a) and (c) are superseded.”).

1619. See, e.g., S.D. TEX. LOCAL R. 7.4 (providing twenty-one day response deadline and seven-

day reply deadline).

1620. Compare TEX. R. CIV. P. 166a(c), with FED. R. CIV. P. 56(c)(1).

1621. TEX. R. CIV. P. 166a(i).

1622. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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submit sufficient evidence to prove its entitlement to summary judgment,

even when the movant does not bear the burden of proof at trial.

1623

contrast, in federal court, the movant who does not bear the burden of proof

at trial “may merely point to an absence of evidence” and shift the burden of

production to the nonmovant.

1624

In state court, summary judgment evidence must be in admissible form

as if presented at trial.

1625

In federal courts, however, “[a]t the summary

judgment stage, materials cited to support or dispute a fact need only be

capable of being ‘presented in a form that would be admissible in

evidence.’”

1626

An example of the distinction is that, in Texas state courts,

unauthenticated documents are not competent summary judgment evidence

(unless the documents are produced by the opposing party),

1627

while federal

courts may “consider the evidence that would likely be admitted at trial . . .

without imposing on parties the time and expense it takes to authenticate

everything in the record.”

1628

A substantial difference between state and federal courts concerns the

use of pleadings as summary judgment proof. In state courts, parties

generally may not rely on pleadings, even if sworn to, as summary judgment

evidence.

1629

On the other hand, in federal court, verified pleadings may be

treated as affidavits if they conform to the requirements of admissibility

found in Rule 56(c)(4).

1630

Today, the sham affidavit doctrine applies equally in Texas state and

federal courts. The sham affidavit doctrine provides that “the nonmovant

cannot defeat a motion for summary judgment by submitting an affidavit

1623. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010) (citing Randall’s

Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)); Brown v. Hearthwood II Owners

Ass’n, 201 S.W.3d 153, 159 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (plurality

opinion).

1624. Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (per curiam).

1625. Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (per

curiam); Greeheyco, Inc. v. Brown, No. 11-16-00199-CV, 2018 WL 3192174, at *3 (Tex. App.—

Eastland 2018, no pet.) (citing TEX. R. CIV. P. 166a(f)).

1626. LSR Consulting, LLC v. Wells Fargo Bank, 835 F.3d 530, 534 (5th Cir. 2016) (quoting

FED. R. CIV. P. 56(c)(2)); see also supra note 1488 and accompanying text.

1627. See Huckaby v. Bragg, No. 12–05–00245–CV, 2006 WL 1791669, at *3 (Tex. App.—

Tyler June 30, 2006, no pet.) (quoting Hittner & Liberato, supra note 975, at 69); see also supra

Part 1.IV.C.

1628. Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017) (citing FED. R. CIV. P.

56(c)(1)(A)); see also Clore, supra note 12, at 838–39.

1629. Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)

(“Generally, pleadings are not competent evidence, even if sworn or verified.”); City of Houston v.

Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also supra Part 2.II.B.

1630. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (per curiam) (“On summary

judgment, factual allegations set forth in a verified complaint may be treated the same as when they

are contained in an affidavit.”). Rule 56(c)(4) sets out the requirements of an affidavit or declaration

submitted as summary judgment evidence. FED. R. CIV. P. 56(c)(4).

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which directly contradicts, without explanation, his previous testimony.”

1631

Until 2018, state courts were split over whether to recognize the sham

affidavit rule,

1632

which has long been recognized by federal courts.

1633

Lujan v. Navistar, Inc., the Texas Supreme Court resolved the split in the

courts of appeals by adopting the sham affidavit rule as “a valid application

of a trial court’s authority to distinguish genuine fact issues from non-genuine

fact issues under Rule 166a.”

1634

Finally, in either forum, the proponent of summary judgment evidence

should always cite to the specific portions of evidence that support the

proponent’s position, but it is not strictly required in state court. Rule 166a

does not expressly require a party to cite to the specific evidence supporting

their summary judgment motion or response.

1635

Texas courts have

occasionally found that a trial court cannot disregard a proponent’s evidence

despite the proponent’s failure to bring the evidence to the court’s

attention.

1636

Rule 56, however, expressly states “[a] party asserting that a

fact cannot be or is genuinely disputed must support the assertion by . . .

citing to particular parts of the record.”

1637

Thus, the Fifth Circuit has held

that Rule 56 does not impose upon the district court a “duty to sift through

the record in search of evidence to support a party’s opposition to summary

judgment.”

1638

VI. HEARINGS

Hearings on motions for summary judgment are not required in Texas

state and federal courts,

1639

although such hearings are more common in state

1631. Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984).

1632. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).

1633. See id. at 85–86 (discussing history of sham affidavit doctrine in federal courts).

1634. Id. at 86.

1635. See generally TEX. R. CIV. P. 166a.

1636. See, e.g., Gallegos v. Johnson, No. 13-07-00603-CV, 2010 WL 672934, at *7 (Tex.

App.—Corpus Christi 2010, no pet.) (holding proponent was not required to reference summary

judgment evidence that was not voluminous); Hinojosa v. Columbia/St. David’s Healthcare Sys.,

L.P., 106 S.W.3d 380, 387 (Tex. App.—Austin, 2003, no pet.) (“A non-movant need not set out the

exact evidence on which it relies or explain with specificity how this evidence supports the issues

it raises . . . .”); Barraza v. Eureka Co., 25 S.W.3d 225, 228–29 (Tex. App.—El Paso 2000, no pet.)

(holding proponent is not required to identify the specific summary judgment evidence on which it

relies). But see Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1996, no

pet.) (“The trial court should not be compelled to sift through a 500-page deposition to search for

evidence supporting the contestant’s contentions.”).

1637. FED. R. CIV. P. 56(c)(1)(A).

1638. R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 811 (5th Cir. 2012)

(quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).

1639. Martin v. Martin, Martin & Richards, Inc., 989 SW.2d 357, 359 (Tex. 1998) (per curiam);

Allied Chem. Corp. v. Mackay, 695 F.2d 854, 856 (5th Cir. 1983) (per curiam).

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courts.

1640

Resources available to federal judges that ease the burden of

analyzing fully-briefed summary judgment motions, such as staff attorneys

or law clerks, are generally unavailable to state district court judges.

1641

either jurisdiction, oral hearings can be beneficial because they may allow

lawyers to narrow and clarify issues.

1642

In state court, there is a tradition of allowing oral arguments as a matter

of right. Even so, summary judgment hearings are merely an opportunity for

lawyers to advocate their positions to judges with limited time and

resources.

1643

Lawyers are limited to presenting argument at summary

judgment hearings; they may not offer or object to evidence or present

additional grounds for summary judgment.

1644

In federal court, summary judgment hearings are less common.

1645

light of additional resources,

1646

federal courts may find hearings have less

utility.

1647

Also, during oral hearings, federal courts are less restrained than

state courts in that they may consider oral testimony at the hearing.

1648

Importantly, whether in state or federal court, practitioners should not

assume an oral hearing will be allowed and, even if it is, the motions and

evidence should be complete and the motions correctly and persuasively

1640. See ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE §

18:24 (2d ed. 2017).

1641. See D. Brock Hornby, Summary Judgment Without Illusions, 13 GREEN BAG 2D 273,

277–78 (2010) (discussing law clerks’ role in disposing of motions for summary judgment); cf.

Jamail, supra note 1595.

1642. Gensler & Rosenthal, supra note 1611, at 557 (“At times, oral argument will clarify and

confirm the parties’ positions and the merits to a point that lets the court rule from the bench, saving

the effort and time that otherwise would be needed to prepare a written opinion.”).

1643. Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex. App.—Houston [14th Dist.]

1993, writ denied); supra Part 1.I.I.

1644. TEX. R. CIV. P. 166a(c); see supra Part 1.I.I (discussing hearing/submission).

1645. See Gensler & Rosenthal, supra note 1611, at 555–56 (“As summary-judgment motions

have seemingly increased in use and importance, the frequency of oral argument on those motions

has seemingly declined.”); see also Kravitz, supra note 1374, at 255 (“[A]t a recent hearing of the

Judicial Conference’s Civil Rules Advisory Committee on proposals to amend Rule 56, . . . a chief

complaint of practitioners—plaintiffs’ and defendants’ lawyers alike—was that district court judges

rarely, if ever, provide an opportunity for oral argument on summary judgment motions.”); supra

Part. 2.I.B.

1646. Hornby, supra note 1641, at 284.

1647. See Kravitz, supra note 1374, at 255 (“There appears to be a widespread belief among . .

. [federal] district court judges that oral argument is inefficient and consumes too much court time,

without attendant benefit.”). Even so, multiple federal judges have expressed concern over the

decline in summary judgment hearings in federal courts and have urged their use. See, e.g., Gensler

& Rosenthal, supra note 1611, at 555–56; Kravitz, supra note 1374, at 263–64; Michael A.

McGlone, The Silence of Oral Argument, 58 FED. LAW 4, 4 (2011) (describing oral arguments in

many federal district courts as “a distant, albeit fond, memory of the past”).

1648. BATEMAN ET AL., 27A FEDERAL PROCEDURE, LAWYERS EDITION § 62:659 (2018)

(“Although [Rule 56] manifests a preference for summary-judgment motions to be decided on the

basis of the written record, . . . it does not preclude parties from introducing oral testimony at a

hearing on the motion, and it is well established that trial judges may consider such evidence.”).

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drafted. The lawyers should prepare as if the motion will be decided on

submission.

1649

VII. ORDERS

In contrast to federal courts, Texas state courts seldom issue orders or

opinions providing reasons for granting summary judgment.

1650

Some

commentators have attributed this reluctance, in part, to a lack of

resources.

1651

Also, for appellate purposes, it makes no difference whether

the state trial court specifies the reasons for granting summary judgment—

although, for strategic purposes, a movant may prefer a general order to keep

the focus on the multiple grounds upon which the summary judgment could

have been granted. Legally, an appellate court may affirm a district court’s

grant of summary judgment on any ground stated in the motion, regardless

of whether the ground was considered by the district court.

1652

This ability to

affirm on any ground may also form a disincentive for a state trial judge to

draft a detailed summary judgment order.

Federal courts are more likely to issue orders with detailed reasons when

granting summary judgment motions.

1653

For starters, Rule 56(a) directs that

“[t]he court should state on the record the reasons for granting or denying the

motion.”

1654

The Fifth Circuit has repeatedly stressed the importance of a

district court’s detailed discussion of its reasoning

1655

and has even remanded

summary judgments with instructions to the district court to explain itself.

1656

Moreover, law clerks and staff attorneys frequently aid federal district courts

1649. Local rules and court procedures should be referenced in determining the procedure for

requesting a summary judgment hearing.

1650. Willy E. Rice, Questionable Summary Judgments, Appearance of Judicial Bias, and

Insurance Defense in Texas Declaratory-Judgment Trials: A Proposal and Arguments for Revising

Texas Rules of Civil Procedure 166a(a), 166a(b), and 166a(i), 36 ST. MARY’S L.J. 535, 638 (2005)

(recognizing that Texas trial judges regularly grant or deny summary-judgment motions without

explaining their rulings); Jamail, supra note 1595 (“Unlike federal district courts, Texas trial courts

rarely, if ever, issue detailed memorandum opinions in conjunction with orders to assist appellate

courts.”); see also supra Part 1.I.J.

1651. Jamail, supra note 1595 (“Texas trial dockets are simply too swamped, and trial judges

simply under-assisted by court staff . . . to permit issuance of federal court-style opinions.”).

1652. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); see supra Part 1.I.J

(the judgment).

1653. See generally supra Part 2.VI.C.

1654. FED. R. CIV. P. 56(a).

1655. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 644 (5th Cir. 1992); McIncrow v. Harris

County, 878 F.2d 835, 835–36 (5th Cir. 1989).

1656. Myers v. Gulf Oil Corp., 731 F.2d 281, 284 (5th Cir. 1984) (per curiam) (“Because the

District Court gives no indication from which we can accurately predict its basis for granting

summary judgment . . . we cannot adequately review its decision. Thus, we vacate the Order and

remand for findings and conclusions consistent with this opinion.”).

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in drafting detailed orders.

1657

Concerning preparation of denials of motions

for summary judgments, federal courts typically do not provide detailed

reasons. Among other reasons for not providing detailed orders, the denial of

summary judgment is not generally appealable.

1658

VIII. SUA SPONTE ACTION

Texas state courts may only grant summary judgment for a party upon

a motion filed by that party and on a ground specifically argued in the

motion.

1659

They cannot grant summary judgment sua sponte.

1660

Conversely,

a federal district court has the power to enter summary judgment sua sponte

upon sufficient notice to the parties.

1661

IX. CONVERSION FROM MOTION TO DISMISS

Unlike its federal counterpart, a Texas Rule of Civil Procedure 91a

motion to dismiss may not be converted by the trial court into a motion for

summary judgment.

1662

Rule 91a, which became effective in 2013, “allows a

party to move to dismiss a cause of action on the ground that it has no basis

in law or in fact.”

1663

In ruling on a Rule 91a motion to dismiss, “[t]he trial

court may not consider evidence” and must generally decide the motion

based solely on the pleading of a cause of action.

1664

The older federal analogue to Texas’s Rule 91a motion is a motion to

dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6).

1665

As with Rule 91a motions, a district court ruling on a Rule

12(b)(6) motion generally cannot consider evidence, and the court must look

1657. See Hornby, supra note 1641, at 277; see also Todd C. Peppers et al., Inside Judicial

Chambers: How Federal District Court Judges Select and Use Their Law Clerks, 71 ALB. L. REV.

623, 635–36 (2008).

1658. See supra note 1590.

1659. See Knutson v. Friess, No. 90-08-00181-CV, 2009 WL 1331100, at *4 (Tex. App.—

Beaumont May 14, 2009, no pet.).

1660. Id.; Duncan v. First Am. Title Ins. Co., No. C14-93-00171-CV, 1994 WL 2010, at *5

(Tex. App.—Houston [14th Dist.] Jan. 6, 1994, no writ); Dillard v. NCNB Tex. Nat’l Bank, 815

S.W.2d 356, 358 (Tex. App.—Austin 1991), overruled on other grounds, 831 S.W.2d 793 (1992).

1661. FED. R. CIV. P. 56(f)(3); Jones v. Family Dollar Stores of La., Inc., 746 F. App’x 348,

351–52 (5th Cir. Aug. 16, 2018); see also supra Part 2.I.B. Prior to Celotex, however, courts in the

Fifth Circuit could not enter summary judgment sua sponte on grounds not requested by the moving

party. Jones, 746 F. App’x at 352 (citing John Deere Co. v. Am. Nat. Bank, 809 F.2d 1190, 1192

(5th Cir. 1987)).

1662. Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure and

Review, 33 REV. LITIG. 469, 513 (2014).

1663. Wooley v. Schaffer, 447 S.W.3d 71, 74 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied) (citing TEX. R. CIV. P. 91a).

1664. Id.

1665. See Patton, supra note 1662, at 471; FED. R. CIV. P. 12(b)(6).

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only to the allegations in the complaint.

1666

A federal court, however, has the

option of converting a Rule 12(b)(6) motion to a motion for summary

judgment if it considers matters extrinsic to the pleadings.

1667

X. APPEALABILITY

In Texas state and federal courts, an order granting summary judgment

and disposing of all claims is appealable, and an order denying summary

judgment is interlocutory and generally cannot be appealed.

1668

There,

however, are procedural and statutory exceptions in both forums. Some arise

in the same circumstance; some do not. In both courts, when both sides file

motions for summary judgment, an order denying one and granting the other

is appealable.

1669

Likewise, state and federal court orders denying summary

judgment are ordinarily appealable when (1) the denial is based on certain

forms of governmental immunity;

1670

or (2) the district court certifies the

appeal and the appellate court agrees to consider it.

1671

By statute, state court orders denying summary judgment are also

appealable when (1) the denial is of a media defendant’s motion for summary

judgment in a defamation case;

1672

or (2) the denial is of a summary judgment

motion filed by an electric utility regarding liability in suit subject to Texas

Civil Practice and Remedies Code Section 75.0022.

1673

In the Fifth Circuit, a

denial of summary judgment is appealable following a trial on the merits

when the denial is based on a ruling by the district court on an issue of law

“but only if [the issue] is sufficiently preserved in a [motion for judgment as

1666. Colle v. Brazos County, 981 F.2d 237, 243 (5th Cir. 1993).

1667. Patton, supra note 1662, at 513. To convert a Rule 12(b)(6) motion to a summary

judgment motion, a court must provide sufficient notice to the parties of the court’s intent to do so.

Id. For a detailed discussion of this procedure see supra Part 2.V.

1668. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980); see also Hogan v. Cunningham,

722 F.3d 725, 730 (5th Cir. 2013).

1669. Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014); Tex. Mun. Power

Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).

1670. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (West 2017); Kinney v. Weaver, 367

F.3d 337, 346 (5th Cir. 2004) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

1671. 12 U.S.C. § 1292(b) (2018); TEX. CIV. PRAC. & REM. CODE § 51.014(d). To be appealable

by certification in state and federal court, the order to be appealed must involve a “controlling

question of law as to which there is a substantial ground for difference of opinion,” and there must

be a finding that “an immediate appeal from the order may materially advance the ultimate

termination of the litigation.” 18 U.S.C. § 1292(b); TEX. CIV. PRAC. & REM. CODE § 51.014(d).

1672. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(6).

1673. Id. § 51.014 (a)(13). Section 75.0022 of the Texas Civil Practice and Remedies Code

limits the liability of electric utility companies in certain situations. For a detailed discussion of

summary judgment appeals in Texas state courts, see supra Part 1.V.

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a matter of law].”

1674

A federal district court’s legal conclusions in denying

summary judgment are also appealable following a later bench trial.

1675

state court, the denial of a summary judgment (that is not otherwise

appealable) has no impact on the trial judgment or on appeals.

1676

CONCLUSION

While following the summary judgment procedures detailed in this

Article is fundamental, it does not ensure successful prosecution of, or

defense against, a motion for summary judgment. In addition to technical

considerations, the civil practitioner filing or opposing a summary judgment

motion should also take advantage of strategic timing decisions, the

development and use of evidence, written persuasion, and a familiarity with

the particular judge and his or her procedures. These factors, combined with

legal and technical correctness, ultimately determine success in summary

judgment practice.

1674. Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 597 (5th Cir. 2017). For example,

if properly preserved, a district court’s denial of summary judgment based on the legal conclusion

that a contract is ambiguous is appealable following a trial on the merits. See id.

1675. Becker v. Tidewater, Inc., 586 F.3d 358, 365–66 n.4 (5th Cir. 2009). For a detailed

discussion of summary judgment appeals in federal court see supra Part 2.VI.

1676. See United Parcel Serv. Inc v. Tasdemiroglu, 25 S.W.3d 914, 916–17 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied).

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