In a recent en banc opinion, the Fifth District Court of Appeals held that movants must identify the specific element or elements challenged on a no-evidence summary judgment motion. A motion that simply states it is challenging "one or more" of the listed elements is legally insufficient. This fails to provide fair notice to the nonmovant and may be raised for the first time on appeal. In other words, shot-gunning a no-evidence motion for summary judgment will not work. This leaves the movant open to reversal on appeal even if the nonmovant fails to object to the motion's vagueness to the trial court.
In Jose Fuentes Co. v. Alfaro, No. 05-11-00228-CV (Nov. 26, 2013), the owners of Gloria's restaurants sued a former manager for stealing secret recipes and using these in a new restaurant. The defendants filed a no-evidence summary judgment. The motion cited to the plaintiff's petition by page number, listed the elements of the claim, and asserted that the plaintiff had no evidence on "one or more" of the elements of the claim. After a hearing, the trial court granted the defendants' motion on all claims.
For the first time on appeal, the plaintiff complained that the motion was legally insufficient. The en banc panel agreed. The panel rejected the movant's argument that "one or more" was the same as "each and every." Citing to Rule 166a(i), the panel held that each element challenged by a no-evidence motion must be specifically identified. Otherwise, the nonmovant is left to guess. It was not enough that the movant cited to the facts alleged and the nonomovant's response provided over 100 pages of evidence to support all the elements of its claims. The motion must conform to the language of Rule 166a(i) and specifically identify the challenged elements.
The movant also argued that based on the detail of the nonmovant's response, their motion provided fair notice that elements were being challenged. Compliance with Rule 166a(i) was thus not necessary. The panel rejected this attempt to create a "fair notice exception" to Rule 166a(i). That the nonmovant responded with copious evidence did not "transform the movant's conclusory motion into a legally sufficient no-evidence motion for summary judgment."
Finally, the panel rejected the argument that the nonmovant waived their right to complain about the motion's ambiguity for the first time on appeal. Doing so would result in applying traditional summary judgment standards to no-evidence motions. The panel reasoned that a no-evidence motion that fails to identify any specific elements presents no ground for summary judgment. It is thus inherently ambiguous, insufficient as a matter of law, and does not require any objection.
Justice O'Neill dissented and was joined by Justices Lang and Lang-Miers. Justice O'Neill did not disagree that the no-evidence standard required stating the specific elements being challenged. His main point of disagreement was on whether the motion provided fair notice. He would have concluded that, based on the record, there was no confusion by the nonmovant that the motion was attacking all the elements. He also would have concluded that the nonmovant's failure to object to the lack of specificity at the trial level failed to preserve the error for appeal. This, he reasoned, would allow nonmovants to obtain reversals by raising a fact issue on the precise elements they claim for the first time on appeal claim were not raised, even when there was no ambiguity objection in the trial court.
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