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Flores v. Rivas8/2/2001
y, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the non-movant's claim or defense. Tex.R.Civ.P. 166a(i). The motion must state the elements as to which there is no evidence. Tex.R.Civ.P. 166a(i). As explained in the interpretative commentary, the motion must be specific in challenging the evidentiary support for an element of a claim or defense. Tex.R.Civ.P. 166a(i) cmt; Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 492-93 (Tex.App.--El Paso 1999, pet. denied). This rule does not authorize conclusory motions or general no-evidence challenges to an opponent's case. Tex.R.Civ.P. 166a(i) cmt; Saenz, 999 S.W.2d at 493. The trial court must grant the motion unless the non-movant produces summary judgment evidence raising a genuine issue of material fact. Tex.R.Civ.P. 166a(i) cmt; Saenz, 999 S.W.2d at 493. The motion filed by Halliburton and Rivas satisfied the specificity requirement of Rule 166a(i). The burden then shifted to the Floreses to produce summary judgment evidence raising a genuine issue of material fact. Saenz, 999 S.W.2d at 493; Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex.App.--Austin 1998, no pet.); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 HOUS.L.REV. 1303, 1356 (1998)(mere filing of motion shifts burden to respondent to come forward with enough evidence to take case to jury).
The Floreses argue that a letter they filed in response to the motion to withdraw and the trial court's discussions pertaining to that letter at the hearing on the motion to withdraw is sufficient to raise a fact issue. Rule 166a(i) explicitly provides that in response to a no-evidence summary judgment motion, the respondent must present summary judgment evidence raising a genuine issue of material fact on the element attacked, or the motion must be granted. Saenz, 999 S.W.2d at 494; In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex.App.--Texarkana 1998, orig. proceeding). In Saenz, we rejected an argument that the mere existence in the court's file of a response to an earlier summary judgment motion satisfied the respondent's burden. Saenz, 999 S.W.2d at 494. Likewise, we conclude that the letter written in connection with the motion to withdraw did not satisfy the Floreses' burden to produce evidence. Because they failed to carry their burden, the trial court was required to grant summary judgment in favor of Halliburton and Rivas. We overrule Point of Error No. Two and affirm the judgment of the trial court.
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