The Dallas Court of Appeals has written a couple of recent significant opinions addressing no-evidence summary judgment practice.
In the first opinion, the en banc court considered a no-evidence motion that listed the elements of the claim at issue and then asserted that there was no evidence of "one or more" elements of the plaintiff’s claim. A majority of the court held that this motion was legally insufficient and could not support summary judgment as a matter of law. The majority reasoned that Rule 166a(i) does not authorize general no-evidence motions and this motion did not specify which elements were being challenged. The majority also held that no objection to the adequacy of the motion was necessary to preserve the challenge for appeal. Notably, the majority distinguished this motion from one that asserts that there is no evidence of "each and every element." Three dissenting justices (O’Neill, Lang, and Lang-Meiers) argued that the motion gave "fair notice" and that non-movant should have objected to the motion and gotten a ruling in order to preserve the complaint for appeal. The majority opinion in Jose Fuentes Co. v. Alfaro may be found here, and the dissent here. Notably, a petition for review has been filed in this case with the Texas Supreme Court.
In a more recent opinion, in Coleman v. Prospere, a divided panel disagreed as to whether a no-evidence motion was adequate to challenge a specific element in a breach of contract case. The opinions also disagree regarding the adequacy of briefing and practitioners may want to take note of the liberal reading the majority gives to the Appellant’s brief. With regard to the motion for summary judgment, the movant filed a no-evidence motion that asserted in relevant part: "There is no evidence of Breach of Contract – [Appellant’s] cause of action for Breach of Contract against [appellee] is not supported by credible evidence. [Appellee] did not engage in Breach of Contract…"
The majority opinion, authored by Justice Evans and joined by Justice Fillmore, holds that the no-evidence motion fails to challenge or even mention a single element and rules that the no-evidence grounds are legally insufficient to support the summary judgment. Justice FitzGerald dissented. He opined that if the sum total of the motion for summary judgment had asserted only that there was no evidence of the cause of action for breach of contract, then he would agree with the majority. However, he argues that the first and third sentences specifically identify the breach element. Accordingly, Justice FitzGerald would have affirmed the summary judgment. The majority opinion may be found here. The dissent may be found here.
As a practitioner, the lesson from these opinions is to clearly and distinctly identify the elements of the cause of action you are challenging. And if you are the non-movant, you might be wise to object to any lack of clarity.