Thus, we hold that Pierce’s no evidence motion is legally insufficient with regard to breach of fiduciary duty and the trial court’s order granting Pierce’s no evidence motion for summary judgment on that cause of action was erroneous.”Interesting Note: Texas Rule of Civil Procedure 166a(i) states: “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.” Tex. R. Civ. P., 166a(i).
In that circumstance, a defendant should not be able to file a no-evidence motion and should have to file a traditional motion for summary judgment. Further, Texas Rule of Civil Procedure 166a(i) only states that a no-evidence motion has to be specific regarding the elements of a claim that are being challenged. So, a movant should not have to challenge any particular underlying facts.
Jose Fuentes Co. v. AlfaroDallas Court of Appeals, No. 05-12-01354-CV (November 26, 2013)En Banc; Justice Evans (Opinion), Justice O’Neill (Dissent) Ken Carroll In a rare en banc opinion, the Dallas Court of Appeals ruled that a no-evidence summary judgment motion that challenges “one or more” of the listed elements of each of a plaintiff’s claims is legally insufficient under TEX. R. CIV. P. 166a(i). Further, the Court held, there is no “fair notice” exception to the requirement of specificity, and this legal insufficiency may be raised for the first time on appeal and need not be preserved in the trial court.