Summary Judgment

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I’ve wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect. 

This case involves the intersection of the responsible third party statute and a statute of repose.

Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built.  On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party.  Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home.  On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.

Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009.  The trial court granted the motion and Boenig appealed.Continue Reading Responsible Third Party Statute and Statutes of Repose

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." 

Continue Reading Combining No-Evidence Motions for Summary Judgment with Traditional Motions

The Beaumont Court of Appeals recently addressed the difference between judicial estoppel and a judicial admission.  Plaintiff filed a claim with the EEOC and brought suit against defendant for gender discrimination.  After her federal suit was dismissed, she sued the defendant in state court for unlawful termination based on her refusal to perform an illegal act. …

The Texarkana Court of Appeals held that a no-evidence motion for summary judgment need only identify the challenged element in order to comply with Rule 166a(i).  Plaintiff argued that the motion must list all of the elements and identify the challenged element(s).  The court of appeals disagreed and held the motion sufficient if it "merely reference[s] the element…