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.

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).

Faced with the prospect that the tardy notice of appeal would bar their appeal altogether, JMJ and Barton argued the judgment was not final and appealable because Ramolia’s summary judgment motion had not sought disposition of their claims against him. Tex. R. Civ. P. 166a(c). The Court of Appeals disagreed.A judgment is final, the Court said, “if it actually disposes, or ‘clearly and unequivocally’ states it disposes, of all claims and all parties.”

The Court of Appeals ultimately reversed and remanded on a joint-enterprise theory of liability—not on the merits, but because Richter and his employer had not moved for summary judgment on that particular issue. See Tex. R. Civ. P. 166a(c). But it was the Court’s ruling on another ground that stands out.Plaintiffs claimed Richter was negligent because he distracted Blain while he knew she was driving.

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.