Response to Motion for Summary Judgment- Texas

CAUSE NO: __________

RESPONSE TO DEFENDANT’S MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND NO EVIDENCE SUMMARY JUDGMENT

COMES NOW Plaintiff, pro se, and hereby files this Response to Defendant’s Motion for Traditional Summary Judgment and No Evidence Summary Judgment. Plaintiff states as follows:

• TRADITIONAL SUMMARY JUDGMENT

1. Standard for Traditional Summary Judgment

In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Furtrher, a party that files a Motion for Temporary Summary Judgment must submit sufficient evidence establishing on its face that no genuine issue exists as to any material fact and that he is therefore entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014) (citations omitted). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). 

Further, when a party moving for summary judgment meets his burden of establishing each element of his claim on which he seeks summary judgment, the burden then shifts to the other party to disprove or raise an issue of fact as to at least one of those elements. Amedisys, Inc., 437 S.W.3d at 511; see also Chance v. Elliot & Lillian, LLC, 462 S.W.3d 276, 283 (Tex. App.—El Paso 2015, no pet.). Although the nonmoving party is not required to marshal all of its proof, he must present countervailing evidence that raises a genuine fact issue on the challenged elements. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Tex. R. Civ. P. 166a).

1. Plaintiff’s Complaint raises genuine issues of material fact

Defendants moving for summary judgment must expressly present and conclusively prove all essential elements of their defense as a matter of law; there can be no genuine issues of material fact. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

“In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in its favor. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Winc hek v. American Express Travel Related Services Co., 232 S.W.3d 197, 202 (Tex. App. 2007). 

It is also worth noting that the Courts place a high threshold of proof to grant a Motion for Summary Judgment. The Court in McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) held in this regard that a summary judgment must stand or fall on its own merits, and the non-movant’s failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant’s right. In the instant action, Defendant alleges that Plaintiff has not sufficiently pled the elements in the claims.  On the contrary, Plaintiff avers that the allegations in the Complaint were sufficiently pleaded. Notably, Plaintiff presented all facts and laid out proper basis for the claims in the Complaint. Therefore, Plaintiff avers that this Court should dismiss Defendant’s allegations in Defendant’s Motion for Traditional Summary Judgment. 

• NO EVIDENCE SUMMARY JUDGMENT

Plaintiff’s Complaint contains all facts and proof to successfully plead all allegations

“In determining whether a respondent to a no-evidence motion for summary judgment has produced sufficient evidence to raise a genuine issue of material fact, courts are not required to search the record without guidance.” Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 309 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (quoting TEX. R. CIV. P. 166a(i) cmt). Further, “`the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.'” Id. 

In the instant action, the Defendant alleges that Plaintiff has not presented any evidence to support the claims and/or allegations in the Complaint. On the contrary, Plaintiff alleges that there is sufficient facts and proof for every allegation in the Complaint. Therefore, Defendant’s allegation in the Motion for No Evidence Summary Judgment should be dismissed in that regard.

1. THE DEFENDANT IS NOT AUTOMATICALLY ENTITLED TO ATTTORNEY’S FEES

The Texas Supreme Court has consistently held that a prevailing party cannot recover attorney’s fees from an opposing party unless permitted by statute or by contract between the parties. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999) (citing Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996). However, “[t]he `prevailing party’ is the party who successfully prosecutes or defends the action on the main issue.” Probus Properties v. Kirby, 200 S.W.3d 258, 265 (Tex.App.-Dallas 2006, pet. denied) (citing Mustang Pipeline, Inc. v. Driver Pipeline, Inc., 134 S.W.3d 195, 201 (Tex. 2004) (Emphasis added).

In the instant action, the Defendant already assumes that this Honorable Court will automatically grant its Motion(s) for Summary Judgment. However, Plaintiff avers that the Defendant claim for Attorney’s fees is merely ambitious and untimely. The award of Attorney’s fees is subject to the outcome of the case. Therefore, Plaintiff avers that Defendant’s claim for attorney’s fees be dismissed in that regard. 

WHEREFORE, the foregoing considered, Defendant respectfully request that this Honorable Court:

1. Enter an order denying Defendant’s Motion for Traditional Summary Judgment in its entirety;
2. Enter an order denying Defendant’s Motion for No Evidence Summary Judgment in its entirety;
3. For such other and further relief this Honorable Court deems just.

DATED:    ______

CERTIFICATE OF MAILING

I, [ENTER NAME], certified on this day of .2021, I deposited a true copy of the above to the Defendant by placing the documents with prepaid postage in the United States mailbox address to the Defendant.

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