How effective is a motion for summary judgment that has no evidence attached to it? Not very. Sometimes you can dodge a few bullets. Ultimately, you will get hit. That’s what happened in the Dallas Court of Appeals’ opinion in American Board of Obstetrics and Gynecology, Inc. v. Yoonessi.
The American Board of Obstetrics and Gynecology ("ABOG"), a non-profit, sued one of its members, Mahmood Yoonessi, M.D., for breach of contract, abuse of process, and malicious prosecution. This lawsuit was a response to lawsuits Yoonessi had filed against it in California and New York.
Yoonessi filed a traditional motion for summary judgment, but attached only ABOG’s original petition as evidence. The court was able to use ABOG’s evidence attached in its response to dismiss the breach of contract and malicious prosecution claims. However, Yoonessi was not so lucky with his abuse of process argument.
In the abuse of process argument, Yoonessi claimed that he used process to maintain a lawsuit "which is a proper use of service, regardless of the actual merits of the case." But Yoonessi failed to provide any evidence that his use of process was proper. Thus, the court of appeals reversed judgment on the abuse of process claim and remanded to the trial court for further proceedings.
You may read this short opinion here.