The standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex.
App.-Dallas 2010, no pet.).
The movant has the burden of showing that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).
In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will
be taken as true. Nixon, 690 S.W.2d at 548-49; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.-
Dallas 2009, no pet.).
Every reasonable inference must be indulged in favor of the nonmovant and any
doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a
summary judgment de novo to determine whether a party's right to prevail is established as a matter of
law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied).
Summary judgment is proper only when a movant establishes that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c).
A matter-of-law summary judgment is proper only when the movant establishes that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a
(c). The motion must state the specific grounds relied upon for summary judgment. Id.
The standard of review for a traditional summary judgment is well established: (1) the movant for summary
judgment has the burden of showing that no genuine issue of material fact exists and that it is therefore
entitled to summary judgment as a matter of law;
(2) in deciding whether there is a disputed material fact
issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;
and (3)
every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the
nonmovant’s favor. See, e.g., Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
In a traditional motion for summary judgment, the movant has the burden to show there is no genuine
issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.
W.2d 546, 548 (Tex. 1985).
In determining whether there is a genuine fact issue precluding summary
judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all
reasonable inferences and resolves all doubts in the non-movant’s favor. Id. at 548–49. If there is no
genuine issue of material fact, summary judgment should issue as a matter of law. Haase v. Glazner, 62 S.
W.3d 795, 797 (Tex. 2001).
A defendant who conclusively negates at least one of the essential elements
of a plaintiff’s cause of action is entitled to a summary judgment on that claim. IHS Cedars Treatment Ctr.
of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
Once a defendant establishes its right
to summary judgment, the burden then shifts to the plaintiff to come forward with competent controverting
summary judgment evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.
W.2d 195, 197 (Tex. 1995).
To prevail on a traditional summary judgment motion, the movant has the burden of proving that it is
entitled to judgment as a matter of law and that there are no genuine issues of material fact. Tex. R. Civ.
P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Res judicata is an affirmative defense.
Tex. R. Civ. P. 94; W. Dow Hamm III Corp. v. Millennium Income Fund, L.L.C., 237 S.W.3d 745, 755 (Tex.
App.—Houston [1st Dist.] 2007, no pet.).
A defendant is entitled to summary judgment based upon an
affirmative defense when the defendant proves all elements of the affirmative defense. Henry v. Masson,
No. 01-07-00522-CV, 2010 WL 5395640, at *16 (Tex. App.—Houston [1st Dist.] Dec. 31, 2010, no pet.)
(citing Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000)).
To prevail on a traditional summary judgment motion, a movant must prove that there is no genuine issue
regarding any material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a
(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).
A party moving for summary judgment on one of its own claims must conclusively prove all essential elements of the claim. See Rhone-
Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
A defendant may also prevail by traditional summary judgment if it conclusively negates at least one essential element of a plaintiff’s claim or
conclusively proves an affirmative defense. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 798 (Tex. 2004).
A movant seeking traditional summary judgment on an
affirmative defense has the initial burden of establishing its entitlement to judgment as a matter of law by
conclusively establishing each element of its affirmative defense.
See Chau v. Riddle, 254 S.W.3d 453,
455 (Tex. 2008) (per curiam); see also TEX. R. CIV. P. 166a(b)–(c). A matter is conclusively established if
reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller
v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of
material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995).
The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ
in their conclusions in light of all of the summary-judgment evidence. See Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT - TRCP 166a(i)
After adequate time for discovery, a party without the burden of proof at trial may move for summary
judgment on the ground that there is no evidence of one or more essential elements of a claim or
defense. See Tex. R. Civ. P. 166a(i).
We review the granting of a motion for no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Ogg v. Dillard's, Inc., 239 S.W.3d 409, 416 (Tex.
App.-Dallas 2007, pet. denied).
Our inquiry focuses on whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the challenged elements. King Ranch, Inc., 118 S.
W.3d at 751.
Evidence is no more than a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Id.
Where, as here, the trial court's order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories
advanced are meritorious. See Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003);
Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 577 (Tex. App.-Dallas 2007, no pet.).
A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for a
pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine
issue of material fact supporting each element contested in the motion. Tex. R. Civ. P. 166a(i);
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006).
STANDARD OF REVIEW ON APPEAL. When reviewing a no-evidence summary judgment,
we “review the evidence presented by the motion and response in the light most favorable to the
party against whom the summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not.” Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)).
MUST STATE ON WHICH ELEMENT THERE IS NO EVIDENCE. It is well settled that a trial
court cannot grant a summary judgment motion on grounds not presented in the motion. Brewer
& Pritchard, P.C., 73 S.W.3d at 204; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912
(Tex. 1997). Our no-evidence summary judgment rule similarly requires that the moving party
identify the grounds for the motion:
After adequate time for discovery, a party without presenting summary judgment evidence may
move for summary judgment on the ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would have the burden of proof at trial
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