Can the non-movant in a summary judgment context use the movant’s evidence (attached to support a traditional motion for summary judgment) to challenge no-evidence grounds for summary judgment on appeal?

According to the El Paso Court of Appeals, the answer is "no." 


In Viasana v. Ward County, Defendant  Ward County filed a combined traditional motion for summary judgment and a no-evidence motion for summary judgment.  Ward County attached evidence to its motion to support the traditional grounds for summary judgment.  Plaintiff Viasana filed no response to the motion and the trial court granted the motion for summary judgment without specifying the basis for the ruling.

Viasana appealed and attempted to challenge the no-evidence grounds for the summary judgment by reference to Ward County’s evidence attached to support the traditional grounds for summary judgment.  The court of appeals held that Viasana could not rely upon Ward County’s summary judgment evidence because there was nothing to indicate that Ward County intended  the evidence to be considered in connection with its no-evidence motion, and Viasana had filed no response referencing the evidence attached to the summary judgment motion or pointing out the existence of any fact issues raised by that evidence. 

The court’s opinion may be found at this link