The Dallas Court of Appeals recently addressed summary judgment practice in a rare en banc opinion. At issue was whether the defendants’ no-evidence motion for summary judgment adequately challenged the elements of plaintiffs’ claims by listing the elements and then stating that the plaintiffs had no evidence to support "one or more" of the elements of the claims. In an opinion by Justice Evans, a divided en banc court joined a number of other courts that have addressed this issue and held that a no-evidence motion must expressly identify the challenged element as required by Rule 166a(i). The court also held that there is no "fair notice" exception to the specificity requirement, and that the plaintiffs did not waive their challenge to the motion by failing to specially except because the legal sufficiency of a no-evidence motion for summary judgment can be challenged for the first time on appeal. Accordingly, the majority reversed the summary judgment and remanded the case to the trial court.
In dissent, Justice O’Neill, joined by two other justices, would have affirmed the trial court because the motion "as a whole" gave plaintiffs fair notice that defendants were challenging each and every element, and because plaintiffs waived any challenge by failing to object or specially except in the trial court. The Court’s opinion in Joe Fuentes Co., Inc. v. Alfaro can be found here and the dissent here.