No-evidence motions for summary judgment and questions of law
Motions for summary judgment are an invaluable tool for quickly and summarily disposing of cases that have no fact issues for a jury to resolve. In Texas state court, there are two types of motions for summary judgment: (1) a traditional motion for summary judgment, and (2) a no-evidence motion for summary judgment. A traditional motion argues that the non-movant cannot recover on a claim as a matter of law. A no-evidence motion argues that the non-movant has “no evidence” to support one or more of the elements of a claim.
A no-evidence motion for summary judgment is a particularly cost-effective tool for litigants. The movant generally only needs to challenge specific elements of a claim and state that the non-movant has no evidence of these elements. No-evidence motions are typically shorter, and therefore more cost-effective to prepare, than traditional motions because they do not typically require extensive legal analysis.
However, determining whether a no-evidence motion is appropriate for a particular case is not necessarily straightforward. There is currently a split in Texas’s fourteen appellate courts on whether a party may move for a no-evidence summary judgment on questions of law. There are also many recognized permutations on the extent to which a litigant may move on elements that involve questions of law. Knowing where courts stand on this issue is important for determining whether a no-evidence motion is appropriate for any particular case.
Courts have generally fallen into two categories on whether no-evidence motions may raise issues of law. The first group holds, as a bright-line rule, that no-evidence motions may never raise questions of law for a court to resolve. The second group essentially rejects the first group’s bright-line rule—that questions of law can never be properly addressed in a no-evidence motion for summary judgment—but does not necessarily have a uniform rule or bright-line rule of its own. Rather, the second group approaches the issue on a more case-by-case analysis.
A. Courts which hold that a no-evidence motion may never address a question of law
The following courts of appeals have adopted a bright-line rule that a no-evidence motion for summary judgment may never rest on questions of law:
• Fifth Court of Appeals (Dallas);
• Second Court of Appeals (Fort Worth);
• Twelfth Court of Appeals (Tyler); and
• Thirteenth Court of Appeals (Corpus Christi).
See Harrill v. A.J.’s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex. App.—Dallas 2000, pet. dism’d w.o.j.); McCracken v. MonoSol RX, LLC, No. 02-12-00151-CV, 2014 WL 4937997, at *27 (Tex. App.—Fort Worth Oct. 2, 2014, no pet.) (not designated for publication); In re Estate of Allen, 301 S.W.3d 923, 929–30 (Tex. App.—Tyler 2009, pet. denied); Franks v. Roades, 310 S.W.3d 615, 621–22 (Tex. App.—Corpus Christi 2010, no pet.).
Interestingly, each of these courts—in ultimately concluding that questions of law are inappropriate for no-evidence motions for summary judgment—have applied this bright-line rule to a variety of different questions of law. Harrill, 27 S.W.3d at 194 (whether a cause of action was preempted by federal law); McCracken, 2014 WL 4937997 at *27 (interpretation of an employment contract); In re Estate of Allen, 301 S.W.3d at 929–30 (whether testamentary documents constituted a codicil); Franks, 310 S.W.3d at 621–22 (element of duty).
The rationale for these courts’ bright-line rule is stated in McCracken. There, the court explains that Rule 166a(i) of the Texas Rules of Civil Procedure, which authorizes no-evidence motions for summary judgment, “presupposes” that a no-evidence motion challenges only those elements for which a non-movant must produce evidence. McCracken, 2014 WL 4937997 at *8. The court explains that, under the rule’s plain language, a no-evidence motion “must be based on an alleged lack of evidence, and its refutation must be based on the existence of evidence.” Id.
While these courts have adopted a bright-line rule, enforcing that rule in a bright-line manner does not always happen. For example, in Patino, the Dallas Court of Appeals affirmed a trial court’s granting of a no-evidence motion that challenged the duty element of a plaintiff’s claim, a question that is typically a matter of law. See Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied). The court did not address whether it was appropriate for the no-evidence motion to challenge the duty element. Rather, the court simply noted that the plaintiff had failed to provide evidence of the standard of care, along with other essential elements, in affirming the trial court’s ruling. Id. at 660–62.
Ultimately, even when faced with a wide variety of legal questions raised in no-evidence motions for summary judgment, the Fifth, Second, Twelfth, and Thirteenth Courts of Appeals hold that no-evidence motions for summary judgment may never challenge questions of law.
B. Courts that reject a bright-line rule on whether no-evidence motions for summary judgment may rest on questions of law
The following courts have uniformly rejected the bright-line rule in Dallas, Fort Worth, Corpus Christi, and Tyler—without necessarily uniformly adopting a bright-line test of their own:
• First Court of Appeals (Houston);
• Third Court of Appeals (Austin);
• Eighth Court of Appeals (El Paso);
• Ninth Court of Appeals (Beaumont);
• Eleventh Court of Appeals (Eastland); and
• Fourteenth Court of Appeals (Houston).
See Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 312 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Means v. ABCABCO, Inc., 315 S.W.3d 209, 213–14 (Tex. App.—Austin 2010, no pet.); Garcia v. Lucero, 366 S.W.3d 275, 282 (Tex. App.—El Paso 2012, no pet.); Bailey v. Gulf States Utilities Co., 27 S.W.3d 713, 715–16 (Tex. App.—Beaumont 2000, pet. denied); Cone v. Fagadau Energy Corp., 68 S.W.3d 147, 157 n.4 (Tex. App.—Eastland 2001, pet. denied); Chrismon v. Brown, 246 S.W.3d 102, 115 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Importantly, not all of these courts have expressly endorsed whether a no-evidence motion for summary judgment may rest on questions of law. Rather, these courts roughly fall into two categories: those that affirm the practice of a no-evidence motion for summary judgment moving on a question of law, without identifying the issue; and those that address the issue and expressly discuss the circumstances under which a movant may use no-evidence motions to raise questions of law.
i. Courts that approve of no-evidence motions on questions of law without identifying the issue
The Beaumont, Houston First, and Houston Fourteenth Courts of Appeal have affirmed no-evidence summary judgments on questions of law, but in each case, they did not expressly address the issue or explain the rationale for their holdings. See Bailey v. Gulf States Utilities Co., 27 S.W.3d 713, 715–16 (Tex. App.—Beaumont 2000, pet. denied) (affirming trial court’s grant of no-evidence motion on whether Texas recognizes a negligent infliction of emotional distress claim); see also Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308-12 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (affirming grant of no-evidence motion that challenged the duty element in a negligence claim); Chrismon v. Brown, 246 S.W.3d 102, 114–15 & n.12 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (same).
The Brookshire Katy Drainage District opinion was subsequently criticized in a dissent from a denial of a motion for rehearing for its failure to address whether, or the extent to which, no-evidence motions for summary judgment may challenge questions of law. See Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 357 S.W.3d 661, 673–75 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (Jennings, J. dissenting from denial of en banc rehearing) (“In my view, the lack of clarity over whether no-evidence motions on purely legal issues are proper . . . is an invitation to err.”).
ii. Courts that have expressly held that no-evidence motions may rest on questions of law
The Austin, El Paso, and Eastland Courts of Appeal have expressly affirmed that no-evidence motions for summary judgment may rest on at least some questions of law. However, these courts have not necessarily taken a uniform approach. While the Austin and Eastland Courts of Appeal have articulated somewhat similar analyses, the El Paso Court of Appeals has been more reserved in articulating a blanket rule.
For example, the El Paso Court of Appeals approved of a no-evidence motion for summary judgment that moved on a question of law without squarely resolving whether they would always endorse such an approach. Garcia v. Lucero, 366 S.W.3d 275, 282 (Tex. App.—El Paso 2012, no pet.). The court confined its holding to “the facts before us” and noted that remand would be a wasteful exercise. The court expressly recognized that there “may be circumstances in which it would not be appropriate to raise a legal issue in a no-evidence motion.” Id. at 282 n.2.
The Eastland Court of Appeals has addressed the issue by noting that it rejects the Dallas court of appeals’ bright-line holding in Harrill. See Cone v. Fagadau Energy Corp., 68 S.W.3d 147, 157 n.4 (Tex. App.—Eastland 2001, pet. denied). The court explained that whether a fact issue has been raised in a no-evidence motion can only be determined by relying on the substantive law of the case. Id. The court held that, because a court must determine the substantive, applicable law for the case, it is proper for no-evidence motions to raise questions of law in determining whether the movant has sufficient evidence to support the elements of its claim. Id.
In Means, the Austin Court of Appeals likewise rejected that no-evidence motions may never raise questions of law. See Means v. ABCABCO, Inc., 315 S.W.3d 209, 213–14 (Tex. App.—Austin 2010, no pet.). The court articulated a specific framework for determining when no-evidence motions may raise legal questions, stating:
"Because the [question of law] was presented to the trial court within the framework of rule 166a(i) and because it is subject to a proper analysis under the no-evidence summary-judgment standards, we hold that it was not improper for the trial court to consider this legal issue under a no-evidence motion for summary judgment."
Id. Since Cone, the Eastland Court of Appeals has recognized a similar approach. See Nelson v. SCI Tex. Funeral Services, Inc., 484 S.W.3d 248, 252 (Tex. App.—Eastland 2016), aff’d on other grounds, 540 S.W.3d 539 (Tex. 2018) (“The fact that a dispute exists with respect to the applicable law does not prevent the court from performing its function of analyzing the non-movant’s evidence to determine if it raises a fact issue.”).
The Texas Supreme Court has still not yet resolved whether a no-evidence motion for summary judgment may raise questions of law, or the extent to which a no-evidence motion may raise such issues. Until the Texas Supreme Court provides further guidance on the issue, practitioners should be aware of the split among the Texas courts of appeal as they consider whether a no-evidence motion for summary judgment may be appropriate for their case.
By: Anna E. Fredrickson