                                                               ACCEPTED
                                                           05-15-00096-CV
                                                FIFTH COURT OF APPEALS
                                                           DALLAS, TEXAS
                                                    11/11/2015 11:31:20 AM
                                                                LISA MATZ
                                                                    CLERK
      CAUSE NO. 05-15-00096-CV


 FIFTH DISTRICT COURT OF APPEALS           FILED IN
                                    5th COURT OF APPEALS
       DALLAS COUNTY, TEXAS             DALLAS, TEXAS
                                   11/11/2015 11:31:20 AM
                                          LISA MATZ
                                            Clerk
          DONNELL HILL,

            APPELLANT,


                 v.


WELLS ASSET MANAGEMENT, INC. AND
  LA PRADA PLACE APARTMENTS,

            APPELLEES.




         APPELLEES' BRIEF




                ISRAEL SUSTER
                STATE BAR NO. 19523580
                THE SUSTER LAW GROUP, PLLC
                1316 VILLAGE CREEK DR., STE. 500
                PLANO, TEXAS 75093-4461
                TELEPHONE:        972-380-0130
                FACSIMILE:        972-380-4517
                israel@susterlaw.com

                ATTORNEY FOR APPELLEES
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.2(a) of the Texas Rules of Appellate Procedure, counsel
for Appellees, Wells Asset Management, Inc. and La Prada Place Apartments,
hereby adopt and supplement Appellees' Identity of Parties and Counsel with the
following supplement to Appellees' counsel:


Trial Counsel
for Appellees Wells Asset Management, Inc. and
La Prada Place Apartments

Represented by:

Carlisle A. Braun
The Suster Law Group, PLLC
1316 Village Creek Drive, Suite 500
Plano, Texas 75093-4461
(972) 380-0130 Telephone
(972) 380-4517 Facsimile

Appellate Counsel
for Appellees Wells Asset Management, Inc. and
La Prada Place Apartments

Represented by:

Israel Suster
The Suster Law Group, PLLC
1316 Village Creek Drive, Suite 500
Plano, Texas 75093-4461
(972) 380-0130 Telephone
(972) 380-4517 Facsimile




                                        )1
                           TABLE OF CONTENTS

                                                                             PAGE

IDENTITIES OF PARTIES AND COUNSEL.                                                ii

TABLE OF CONTENTS                                                                 iii

INDEX OF AUTHORITIES                                                              iv

RESPONSE TO ISSUES PRESENTED                                                       I

  1. Appellees do not dispute that Hill may challenge the legal sufficiency of a
     grant of summary judgment in this appeal. But any such challenge by Hill
     simply fails because Hill did not respond to a no-evidence motion for
     summary judgment and raised no issue of fact to prevent the trial court from
     granting Appellees' sununary judgment motion.

  2. Appellees' no-evidence motion for summary judgment was legally sufficient
     because it negated elements of Hill's claims necessary to prevail on a suit for
     malicious prosecution. As such, the Court need not address the factual legal
     sufficiency of Appellees' traditional motion for summary judgment.

STATEMENT OF FACTS                                                                 2

SUMMARY OF THE ARGUMENT                                                            3

STANDARD OF REVIEW                                                                 4

ARGUMENT                                                                           5

PRAYER                                                                             9

CERTIFICATE OF SERVICE                                                            10

APPENDIX                                                                          11




                                        III
                            INDEX OF AUTHORITIES

CASES                                                                 PAGE

Barnes v. SWS Financial Servs., Inc.,
  97 S.W.3d 759 n. 3 (Tex. App.-Dallas 2003, no pet.)                     7,8

Black v. Victoria Lloyds Ins. Co.,
  797 S.W.2d 20, 27 (Tex. 1990)                                             7

Crocker v. Paulyne's Nursing Home, Inc.,
 95 S.W.3d 419-420 (Tex. App.-Dallas 2002, no pet.)                       7, 8

Henning v. One~VestBank FSB,
 405 S.W.3d 950, 962 (Tex. App.-Dallas 2013, no pet.)                  4, 6, 8

Jackson v. Am. Home Mortg. Servicing, Inc.,
  No. 05-12-01596-CV, 2014 WL 3817085, at * 2 (Tex. App.-Dallas Aug. 4,
  2014, no pet.)                                                            6

Luce v. Interstate Adjusters, Inc.,
  26 S.W.3d 561,565 (Tex. App.-Dallas 2000, no pet.)                        8

Puricelli v. Saxon Mortg. Serv., Inc.,
  No. 05-13-00207-CV, 2014 WL 3735284, at * 3 (Tex. App.-Dallas July 28,
  2014, pet. denied)                                                     5, 8

Timpte Indus. Inc. v. Gish.,
  286 S.W.3d 306, 310 (Tex 2009)                                             5




RULES AND STATUTES                                                    PAGE

TEX.   R. Cry. P. 166a(i)                                              5,6, 8




                                      IV
                 RESPONSE TO ISSUES PRESENTED


1. Appellees do not dispute that Hill may challenge the legal sufficiency of a
   grant of summary judgment in this appeal. But any such challenge by Hill
   simply fails because Hill did not respond to a no-evidence motion for
   summary judgment and raised no issue of fact to prevent the trial court from
   granting Appellees' summaryjudgment motion.

2. Appellees' no-evidence motion for summary judgment was legally sufficient
   because it negated elements of Hill's claims necessary to prevail on a suit for
   malicious prosecution. As such, the Court need not address the factual legal
   sufficiency of Appellees' traditional motion for summary judgment.




                                    PAGE 1
                            STATEMENT       OF FACTS

       Appellant Donnell Hill ("Hill") is a former tenant of Appellee La Prada

Place Apartments ("La Prada"). (Appellant's Br. 6). On August 1, 2013, La Prada

filed Plaintiffs   First Amended Petition for Forcible Detainer in Cause No. CC-

1304361-B, styled La Prada Place Apartments v. Donnell Hill and All Occupants,

then pending in the County Court at Law No.2,        Dallas County, Texas. (CR 7).

Hill prevailed against La Prada in such eviction appeal and was not evicted from

La Prada Place Apartments. (Appellant's Br. 6).

       On March 5, 2014, Hill filed suit against Appellees in connection with La

Prada's lawsuit to evict Hill for nonpayment of rent. (CR 6). Among other things,

Hill alleged that Appellees engaged in malicious and fraudulent conduct in

connection with La Prada's eviction lawsuit. (CR 7).

       On August 1, 2014, Appellee Wells Asset Management,            Inc. ("Wells")

served Hill with Defendant Wells Asset Management, Inc. 's First Set of Disco very

Requests to Plaintiff. (CR 53-80).       At first, Hill refused to respond to such

discovery requests. (CR 53). Eventually, Hill produced a few documents, but Hill

did not answer Wells' interrogatories and admission requests. (CR 53). As a result

of Hill's failure to respond to Wells' admission requests, the following facts were

deemed admitted: (1) Wells did not execute a lease agreement with Hill; (2) Wells

did not file an eviction against Hill; (3) Wells was not Hill's landlord; (4) Hill was




                                       PAGE 2
not evicted from La Prada Place Apartments; and, (5) Hill did not sustain any

damages as a result of Wells' conduct. (CR 44-45).            Hill did not challenge the

deeming of any admissions.

      On September 11, 2014, Appellees filed their Defendants' Evidentiary and

No-Evidence Motions for Summary Judgment Against Plaintiff in the trial court.

(CR 42-80). Among other things, Appellees moved for a summary judgment on

the basis that "[t]here is no evidence that [Hill] suffered any damages as a result of

[Appellees']   actions,"    "[t'[here is no evidence   that     [Appellees]   made   any

representations to [Hill]" and "[tjhere [was] no evidence that [Appellees] engaged

in any malicious conduct." (CR 47-48). Hill did not file a response to Appellees'

motions. (CR 82; Appellant's Br. 6). On October 17,2014,the trial court granted

summary judgment       in favor of Appellees     and entered its Order Granting

Defendants' Evidential}! and No-Evidence Motionsfor Summary Judgment Against

Plaintiff (CR 82-83).

                           SUMMARY OF THE ARGUMENT

      While Hill may appeal the legal sufficiency of a motion for summary

judgment for the first time on appeal, the trial court properly granted Appellees'

no-evidence motion for summary judgment because Hill did not respond and raise

any issues of fact to challenge the motion.




                                        PAGE 3
        To the extent Hill complains about the legal sufficiency of the no-evidence

motion, such motion was legally sufficient to negate any action for malicious

prosecution because such motion challenged any evidence of malicious conduct
                   1
and damages.           Without any evidence of such elements, the trial court properly

granted summary judgment.                    To the extent that Hill complains of the legal

insufficiency of the evidence brought in Appellees' traditional motion for summary

judgment, the Court need not address because of the proper grant of Appellees' no-

evidence motion. Finally, to the extent Hill has any other issues with regard to the

granting of summary judgment, Hill has waived any right to complain because he

did not make any objections to the summary judgment motion before the trial court

and raises no such other objections in his Brief.

        The Court should affirm the trial court's judgment and render a judgment in

favor of Appellees for their appellate attorneys' fees in the amount of $10,000.00.

                                      STANDARD OF REVIEW

         The standard of review for a trial court's summary judgment is de novo.

Henning v. OneWest Bank FSB, 405 S.W.3d 950, 956 (Tex. App.-Dallas                                            2013,

no pet.). In the absence of a response to a motion for summary judgment, the only

issue that may be raised on appeal is whether the motion for summary judgment is

sufficient as a matter of law. Id. at 957.                      A no-evidence motion for summary

 I Issue No.2 of Hill's Brief is a challenge to the legal sufficiency of evidence to Appellees' motions for summary
judgment. However, the stated issue in the argument in his Brief is only for a legal insufficiency of the "Summary
Judgment." (See Appellant's Br. 5 and 7).




                                                      PAGE 4
judgment under Rule 166a(i) must challenge specific elements of the opponent's

claim or defense on which the opponent will have the burden of proof at trial. See

TEX.R. Crv. P. 166a(i); Timpte Indus., Inc. v. Gish., 286 S.W.3d 306, 310 (Tex.

2009). Such motion is essentially a motion for a pre-trial directed verdict because

it requires the opponent to present summary judgment evidence raising a genuine

issue of material fact supporting each element challenged in the motion. See

Timpte Indus. Inc., 286 S.W.3d at 310. Where summary judgment is appropriate

under the no-evidence standard, there is no need to address the issues related to a

traditional motion for summary judgment. See Puricelli v. Saxon Mortg. Serv.,

Inc., No. 05-13-00207-CV, 2014 WL 3735284, at *3 (Tex. App.-Dallas         July 28,

2014, pet. denied).

                                  ARGUMENT

   1. Appellees do not dispute that Hill may challenge the legal sufficiency of a
      grant of summary judgment in this appeal. But any such challenge by Hill
      simply fails because Hill did not respond to a no-evidence motion for
      summary judgment and raised no issue of fact to prevent the trial court from
      granting Appellees' summary judgment motion.

   I. Authority

      A party is free to challenge the legal sufficiency of evidence in connection

with the grant of a motion for summary judgment. But here, the court granted a

no-evidence motion for summary judgment after no response was filed by Hill (See

CR 82; Appellant's Br. 6). As discussed in response to issue number 2 below, the




                                      PAGES
Court need not consider the legal suffiency of any evidence as Hill presented no

evidence of certain elements necessary to establish the claims under his suit. As

further discussed below, Appellees' no-evidence motion for summary judgment

was legally sufficient.

   2. Appellees' no-evidence motion for summary judgment was legally sufficient
      because it negated elements of Hill's claims necessary to prevail on a suit for
      malicious prosecution. As such, the COUltneed not address the factual legal
      sufficiency of Appellees' traditional motion for summary judgment.

   II. Authority

      A trial court must grant a no-evidence motion for summary judgment if no

response is filed. TEX.R. CIY. P. 166a(i). However, a no-evidence motion for

summaryjudgment must state the elements as to which there is no evidence. Id. A

no-evidence motion for summary judgment is legally sufficient if the movant

specifically states the elements of the non-movant's claims that lack evidence. See

Henning, 405 S.W.3d at 962 (summary judgment affirmed because "the record

shows that in its no-evidence motion, [appellee] unambiguously stated the

elements of each of [appellant's] claims and identified the elements as to which it

contended there was no evidence."); Jackson v. Am. Home Mortg. Servicing, Inc.

No, 05-12-01596-CV, 2014 WL 3817085, at *2 (Tex. App.-Dallas Aug. 4,2014,

no pet.) (summary judgment affirmed where appellee identified the specific

elements of the claims that appellee claimed lacked evidentiary support).




                                       PAGE 6
          To the extent an appellant believes that a trial court has committed any error,

the appellant must raise such error (by specific issue) in its brief or it is waived.

Barnes v. SWS Fin. Servs., Inc., 97 S.W.3d 759,761 n.3 (Tex. App.-Dallas 2003,

no pet.).      Further, the failure to raise an objection on the specificity or any

ambiguities of a no-evidence summary judgment motion waives the issue. See

Crocker v. Paulyne'a Nursing Home, Inc., 95 S.W.3d 416, 419-420 (Tex. App.-

Dallas 2002, no pet.) (holding that "a nonmovant must object to an unclear or

ambiguous motion for summary judgment" and the failure to do so by "appellants

waived any objection that the motion was not more specific").

   III.      Analysis

          Attempting to overcome his failure to file a response to Appellees' no-

evidence motion for summary judgment, Hill argues that Appellees' motions for

summary judgment are legally insufficient. (Appellant's Br. 5). Hill's sole point

of error on appeal appears to be that the trial court committed error by granting

summary judgment because Appellees' motions for summary judgment were

legally insufficient as such motions failed to negate the elements of Hill's cause of

action for malicious prosecution. (Appellant's Br. 7-8).       Hill is incorrect.

          A defendant need only negate at least one element of a plaintiffs cause of

action. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20,27 (Tex. 1990). In order

to prevail on a claim for malicious prosecution, a plaintiff must establish the




                                          PAGE 7
defendant acted maliciously in filing a previously pending civil action against the

plaintiff, and such malicious filing damaged plaintiff.    See Luce v. Interstate

Adjusters, Inc., 26 S.W.3d 561, 565 (Tex. App.-Dal1as 2000, no pet.).            In

response to Hill's cause of action, Appellees moved for summary judgment on the

basis (among multiple other grounds and damages grounds) that "[t]here is no

evidence that [Hill] suffered any damages as a result of [Appellees'] actions" and

"[t]here is no evidence that [Appellees] engaged in any malicious conduct." (CR

47-48,   See grounds Nos. 5-15        and 30). As Appellees' motion specifically

stated the elements lacking evidence, such motion was legally sufficient. See

Henning, 405 S.W.3d at 962. And because Hill subsequently failed to file a

response to Appellees' no-evidence motion, the trial court properly granted such

motion. See   TEX.   R. CIY.P. 166a(i).

      This Court need not address the legal sufficiency of Appellees' traditional

motion for summary judgment or the evidence therewith because the trial court

properly granted summary judgment based on Appellees' no-evidence motion for

summary judgment. See Puricelli, 2014 WL 3735284, at *3. Moreover, Hill does

not appear to set forth any other points of error in his brief. To the extent he is

complaining of any other error, such error is waived. See Barnes, 97 S.W.3d at

761 n.3; Crocker, 95 S.W.3d at 419-20.




                                          PAGE 8
         The Court should affirm the trial court's award of appellate attorneys' fees

as a prevailing party sought in Appellees' motion for summary judgment as proved

in the amount of $10,000.00. (CR 43,53-55).

   IV.      Conclusion

         Appellees' no-evidence motion for summary judgment was legally sufficient

because such motion challenged Hill 's evidence of malicious conduct as well as

evidence that Hill suffered any damages as the result of Appellees' conduct. When

Hill failed to respond to Appellees' no-evidence motion for summary judgment,

the trial court properly granted such motion. Hill has not established any error by

the trial court in granting summary judgment in favor of Appellees.     Because Hill

has not otherwise challenged the granting of summary judgment in any way, such

issues are waived and are not before the Court. Consequently, the Court should

affirm the judgment and should award Appellees' appellate fees as awarded by the

trial court in the amount of$10,000.00.    (CR 83).

                                      PRAYER

         WHEREFORE,        PREMISES       CONSIDERED,      Appellees   Wells   Asset

Management, Inc. and La Prada Place Apartments pray that the Court affirm the

trial court's judgment.   In addition, Appellees (and/or La Prada Place Apartments)

pray that they may be granted judgment in the amount of $10,000.00 for their




                                          PAGE 9
appellate attorneys' fees. Appellees further request all relief to which they may be

entitled at law or equity.



                                      Respectfully submitted,

                                      THE SUSTER LAW GROUP, PLLC
                                      1316 Village Creek Dr., Ste. 500
                                      Plano, Texas 75093-4461
                                      Telephone: (972) 380-0130
                                      Facsimile: (972) 380-4517
                                      E-mail:     israel@susterlaw.com

                                      lsi Israel Suster
                                      Israel Suster
                                      State Bar No. 19523580

                                       ATTORNEY FOR APPELLEES



                             CERTIFICATE    OF SERVICE

     I hereby certify that on the 11th day of November, 2015, a true and correct
copy of Appellees' Brief was served on Appellant Donnell Hill, at 5405 Gaston
Avenue, Number 226, Dallas, Texas 75214 via First Class Mail.



                                       lsi Israel Suster
                                       Israel Suster




                                      PAGE 10
                             APPENDIX

TAB 1   Order Granting Defendants' Evidentiary and No-Evidence Motions
        for Summary Judgment Against Plaintiff

TAB 2   Texas Rule of Civil Procedure 166a(i)




                                PAGE II
APPELLEES'BRIEF
 APPENDIX TAB 1
                                      NO. CC~14-01039-B

DONNELL       HILL,                              §                   IN THE COUNTY COURT
                                                 §
      Plaintiff,                                 §
                                                 §
v.                                               §                                  AT LAW NO. 2
                                                 §
WELLS ASSET MANAGEMENT, INC. and                 §
LA PRADA PLACE APARTMENTS,                       §
                                                 §
                                                 §
     Defendants.                                 §                  DALLASCOUNTY,TEXAS

                                     ORDER GRANTING
           DEFENDANTS' EVIDENTIARY AND NO-EVIDENCE MOTIONS FOR
                  SUMMARY JUDGMENT AGAINST PLAINTIFF

          On October 17, 2014, a hearing was held on Defendants' Evidentiary and No-Evidence

Motions for Summary Judgment Against Plaintiff ("Defendants' Motions"). The Court finds that

all parties were duly notified of the hearing. The Court further finds that Plaintiff           d.~d®
appear.     The Court further finds that Defendants Wells Asset Management, Inc. and La Prada

Place Apartments appeared by and through their attorneys of record, The Suster Law Group,

PLLC. The Court further finds that it has jurisdiction over the parties and subject matter of this

case. The Court notes that Plaintiff Donnell Hill did not file a response to Defendants' Motions.

Having considered Defendants' Motions, the summary judgment evidence and the arguments of

counsel, the Court is of the opinion that Defendants' Motions should be granted.

          IT IS THEREFORE ORDERED that Defendants' Evidentiary and No-Evidence Motions

for Summary Judgment Against Plaintiff are hereby granted.

          IT IS FURTHER ORDERED that Plaintiff Donnell Hill takes nothing on his claims

against Defendants Wells Asset Management, Inc. and La Prada Place Apartments and that
                                                                              CC-14 - 01039-8
                                                                              CSJD
                                                                               ORDER - SUMMARY              JUDGMENT
                                                                               6'l4340



                                                                              11111111111111111111111111111111111   j II1I
ORDER GRANTING DEFENDANTS' EVIDENTIARY AND NO-EVIDENCE MOTIONS
FOR SUMMAR Y JUDGMENT AGAINST PLA[NTIFF                                                                  PAGE I
... _~/'


           Defendants are hereby discharged as to any liability asserted by Plaintiff. Defendants awarded a

           take-nothing judgment against Plaintiff.

                  IT IS FURTHER ORDERED that that Defendants Wells Asset Management, Inc. and La

           Prada Place Apartments recover judgment against Plaintiff Donnell Hill for:

                  1.         reasonable attorneys' fees in the amount of $3,065.80; reasonable and necessary
                             attorney fees for pretrial, post-appeal services in the amount of $1,000.00;
                             reasonable and necessary attorneys' fees for representation of this case in the
                             Court of Appeals in the sum of $10,000.00, and reasonable and necessary
                             attorneys' fees for prosecuting or defending a petition for review to the Texas
                             Supreme Court in the sum of $15,000.00;

                  2.         interest at the rate of 5% per year on the total judgment from the date of judgment
                             until such judgment is paid; and,

                  3.         all costs of court.

                  All relief not expressly granted herein is expressly denied. This judgment is final.


                  SIGNED on this _         ___,(h....o<.=_:.._o-""(fK....:=..__(L__   )I   ,2014.




           ORDER GRANTING DEFENDANTS' EVIDENTIARY AND NO-EVIDENCE MOTIONS
           FOR SUMMARY JUDGMENT AGAINST PLAINTIFF                                                         PAGE 2

                         __ ._---_._._._._--------------------------
                       ...
APPELLEES'   BRIEF
 APPENDIX TAB 2
Rule 166a. Summary Judgment,       TX R Rep Rule 166a




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 8. Pre-Trial Procedure (Refs & Annos)

                                           TX Rules of Civil Procedure, Rule 166a

                                               Rule 166a. Summary Judgment

                                                          Currentness


(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment
may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary
judgment in his favor upon all or any part thereof. A swnmary judgment, interlocutory in character, may be rendered on the
issue of liability alone although there is a genuine issue as to amount of damages.



(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment
is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any
part thereof.



(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except
on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least
twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days
prior to the day of hearing may me and serve opposing affidavits or other written response. No oral testimony shall be received
at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations
of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and
before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter oflaw on the issues expressly set out in the motion or in an
answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall
not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence
of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by
the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions
and inconsistencies, and could have been readily controverted.



(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on me with the
clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice
containing specific references to the discovery or specific references to other instruments, are filed and served on all parties
together with a statement of intent to use the specified discovery as summary judgment proofs; (i) at least twenty-one days
before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing
if such proofs are to be used to oppose the summary judgment.


(e) Case not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief
asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel,
Rule 166a. Summary Judgment,        TX R Rep Rule 166a



ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and
directing such further proceedings in the action as are just.



(0 Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto
or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by
an opposing party with opportunity, but refusal, to amend.



(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment
or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make
such other order as is just.



(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the
party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused
him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.



(i) No-Evidence Motion. After adequate time for discovery, 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. The motion must state the elements as to which there is no evidence. The
court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.



Credits
Oct. 12, 1949, eff. March 1, 1950. Amended by orders of Oct. 1, 1951, eff. March 1,1952; July 20,1966, eff, Jan. 1, 1967; July
21, 1970, eff, Jan. 1, 1971; July 11, 1977, eff, Jan. 1, 1978; June 10, 1980, eff, Jan. 1, 1981; Dec. 5,1983, eff. April I , 1984;
July 15, 1987, eff. Jan. I, 1988; April 24, 1990, eff. Sept. 1,1990; Aug. 15, 1997, eff. Sept. 1, 1997.




Notes of Decisions (8188)

Vernon's Ann. Texas Rules Civ. Proc., Rule 166a, TX R RCP Rule 166a
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1,2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September I, 2015. Other state court rules and selected county rules are current
with rules verified through June 1,2015.
                         ----.---~--.--.-----.-.-----~-.~                               ..   --          -..---------.-.----_._.
                                                                                                  ...-- ..                                         __ -
End of Document                                                       C: 20!5 Thomson Reulers. No claim       (I)   original U.S. Government VlCi"k:..S.
