



NUMBER 13-01-704-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
______________________________________________________________

GILDA RICHARD, ET AL.,              Appellants,
v.



REYNOLDS METAL COMPANY,      Appellee.
______________________________________________________________

On appeal from the 58th District Court of Jefferson County, Texas.
_____________________________________________________________


O P I N I O N

Before Justices Rodriguez, Castillo, and Wittig (1)
Opinion by Justice Wittig

 This is a wrongful death and survival action by the widow Gilda Richard and her minor daughter, Kayla
Richard, appellants.  Their claims against Reynolds Metals Company, appellee, were denied by summary
judgment granted in June 2001.  Appellants complain of multiple substantive and procedural matters including
discovery issues, inadequate discovery responses by appellee, improper use of a no-evidence motion for
summary judgment, granting summary judgment on grounds not urged, and abuse of discretion in refusing
appellants' second motion for continuance.  We reverse and remand.
I

 Appellants' summary judgment motion was argued variously under both the traditional and no-evidence
standards.  A "traditional" or senior rule summary judgment is proper only when the movant establishes there
is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c);
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).  A trial court properly grants summary
judgment in favor of a defendant if that party conclusively establishes all elements of an affirmative defense, or
conclusively negates at least one element of the plaintiff's claim.  Am. Tobacco Co., Inc. v. Grinnell, 951
S.W.2d 420, 425 (Tex. 1997).  Appellee  was required to establish that no genuine issue of material fact
existed and that judgment should be granted as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). 
 In a "no-evidence" summary judgment, a party is entitled to summary judgment if 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.  Tex. R. Civ. P. 166a(i).  In reviewing a no-evidence summary judgment, we apply the same legal
sufficiency standard as a directed verdict.  Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex.
App.-Houston [14th Dist.] 1999, no pet.); Chapman v. King Ranch, Inc., 41 S.W.3d 693, 698 (Tex.
App.-Corpus Christi 2001, pet. filed).  A no-evidence summary judgment is proper if the respondent fails to
bring forth more than a scintilla of probative evidence in support of one or more essential elements of a claim. 
Tex. R. Civ. P. 166a(i).  Where a summary judgment motion does not unambiguously state that it is filed
under rule 166a(i) and does not strictly comply with the requirements of that rule, it will be construed as a
traditional summary judgment motion.  Michael v. Dyke, 41 S.W.3d 746, 750 (Tex. App.-Corpus Christi
2001, no pet.).
 We review the trial court's granting of a motion for summary judgment de novo.Natividad v. Alexsis, Inc.,
875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726
(Tex. App.-Corpus Christi 2000, pet. denied).  When reviewing a summary judgment under either standard,
we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and
inferences.  Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995);Flameout Design &
Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no
pet.). 
 II

 As is too often the case, we are faced with troubling procedural problems with appellee's second motion for
summary judgment.  First, it does not address all of appellants' claims.  Second, a verified request for
additional time was denied, even though appellant was not given the requisite twenty-one days notice under
rule 166a(c) and discovery was incomplete.  Tex. R. Civ. P. 166a(c).  And third, appellee's motion does not
comply with the rules of civil procedure for a no-evidence motion for summary judgment. Tex. R. Civ. P.
166a(i).
 Appellee filed its original motion for summary judgment on the basis that asbestos did not cause the
decedent's death, the affirmative defense of limitations, the affirmative defense of the Worker's Compensation
exclusive remedies provision, Tex. Lab. Code. Ann. § 408.001(a) (Vernon 1996), and the assertion that no act
or omission of appellee caused Mr. Richard's injuries.  The motion attached a considerable array of documents
and proof.  This first motion was apparently denied by the trial court.  Two months later, appellee filed a
supplemental memorandum in support of its motion for summary judgment. The second motion for summary
judgment noted that additional information and documents had come to light that supported its motion and
again attached considerable proof.  This motion was filed May 16, 2001 and served by fax on appellants'
attorney.  The hearing was set June 6, 2001, and was clearly not "filed and served at least twenty-one days
before the time specified for hearing."  Tex. R. Civ P. 166a(c).  Nor was appellant given the additional three
days prescribed by rule of civil procedure 21a applicable to facsimile filings.  Tex. R. Civ. P. 21a.
III
 After appellee's unsuccessful first motion for summary judgment, appellants amended their petition (2) to add
new distinct claims.  These new assertions  included claims for strict liability, premises liability (when the
deceased worked at the plant in a third party employee status) and intentional torts.  While the last allegation
concerning intentional torts was obliquely referenced in appellee's motion, the motion does not address the
several strict liability theories, the premises claims, or unsafe workplace claims. (3)
 Unaddressed issues or elements cannot be a basis for summary judgment.Chessher v. Southwestern Bell Tel.,
658 S.W.2d 563, 564 (Tex.1983) (defense to only one of four causes of action addressed in summary
judgment motion); Uribe v. Houston Gen. Ins. Co., 849 S.W.2d 447, 450-51 (Tex. App.-San Antonio 1993,
no writ) (separate, distinct, and unaddressed counterclaim); Dillard v. NCNB Tex. Nat'l Bank, 815 S.W.2d
356, 358 (Tex. App.-Austin 1991, no writ) (unaddressed counterclaim), overruled on other grounds,
Amberboy v. Societe de Banque Privee, 831 S.W.2d 793, 797 (Tex. 1992);Hodde v. Young, 672 S.W.2d 45,
47 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). We hold appellee's first supplemental motion fails
because the amended pleading raised separate, distinct and unaddressed issues and elements.  See Chessher,
658 S.W.2d at 564.  We sustain appellants' issue on all claims not specifically named in Reynolds' second
motion for summary judgment.  This list includes all strict liability theories, intentional injury theories and
premises or unsafe work place theories.
IV
 Appellants argue that Reynolds' second motion for summary judgment should be treated as a traditional
motion under Tex. R. Civ. P.  166a(c).  Reynolds' motion was largely predicated on its own evidence,
intertwining the issues and not in compliance with rule 166a(i).   Tex. R. Civ. P. 166a(i).  We agree.  We
discussed in  Michael v. Dyke, 41 S.W.3d 746 (Tex.App.-Corpus Christi 2001, no pet.), that where a
summary judgment motion does not unambiguously state that it is filed under  rule 166a(i) and does not
strictly comply with the requirements of that rule, it will be construed as a traditional summary judgment
motion.  See id. at 750.  In its second summary judgment motion "Introduction," Reynolds does initially
discuss a no-evidence motion.  However, its argument, in order, addresses:  (1) the workers compensation
bar; (2) no wrongful death action; (3) no known cause for sarcoidosis; (4) election of remedies; (5) settlement
bars recovery; and (6) limitations.  The motion fails to delineate elements on which appellants have the burden
of proof.  Instead, the motion serpentines its way through predominately affirmative defenses, various expert
testimony and other proofs, mixed with an occasional argument, which, if properly addressed, could be
grounds for a no-evidence summary judgment.  Tex. R. Civ. P. 166a(i).  As we noted in Michael, we agree
with our sister courts that hold "the better practice is either to file two separate motions, one containing the no
evidence summary judgment and one containing the ordinary summary judgment, or to file one document
containing both motions but with the arguments and authorities for each clearly delineated and separate from
one another."  Michael, 41 S.W.3d at 751.  When it is not readily apparent to the trial court that summary
judgment is sought under rule 166(a)(i), the court should presume that it is filed under the traditional summary
judgment rule and analyze it according to those well-recognized standards.  Id.  An order granting summary
judgment should clarify whether the motion is granted on no-evidence grounds or traditional.  Id.
 Perhaps we need once again to reiterate the standards for a no-evidence motion. We delineated the
requirements of a no evidence motion for summary judgment in Oasis Oil Corp. v. Koch Ref. Co. L.P., 60
S.W.3d 248, 252 (Tex. App.-Corpus Christi 2001, pet. denied).   There we noted:  
 1. the no-evidence motion can only be brought against "a claim or defense on which an adverse party would
have the burden of proof at trial,"  Tex. R. Civ. P. 166a(i);
  2. "the motion must state the elements as to which there is no evidence," Id.; 
 3. "the motion must be specific in challenging the evidentiary support for an element of a claim," Id.166a cmt.;

 4. "paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's
case," Id.;  

 5. "its response need only point out evidence that raises a fact issue on the challenged elements," Id.;   and

 6. "the respondent is not required to marshal its proof."   Id. 
Id. at 252.
 Because Reynolds failed to comply with rule 166a(i), we treat its motion as a traditional motion for summary
judgment.  See Tex. R. Civ.166(a)(c); Michael, 41 S.W.3d at 750.  It is also crystalline that affirmative
defenses must be raised under the traditional summary judgment rule.  Tex. R. Civ. P. 166a(c).   This is true
because a no-evidence motion is only proper against an element of an adverse party's claims or defenses for
which the opposing party has the burden of proof at trial.  Tex. R. Civ. P.  166a(i). Appellants' issue is
sustained. 
V
 In its brief to us, appellee lumps most of its claimed affirmative defenses together. We do likewise.  Appellee
argues:  "Plaintiff's survival and wrongful death claims also were properly dismissed based on the law of
release and the election of remedies doctrine or res judicata."  This portion of Reynolds' motion centers
around a 1987 workers compensation claim by the deceased, averring exposure to toxic substances resulting
in injury to his lungs and body generally.  Reynolds argues from Grimes v. Andrews, 997 S.W.2d 877, 881
(Tex. App.-Waco 1999, no pet.).  There, the court held that a release surrenders legal rights or obligations
between the parties to an agreement, operates to extinguish a party's claim or claims as effectively as would a
prior judgment between the parties, is a bar to any right of action on the released matter and is a contract
subject to the same rules that govern contract construction.  Id.  We agree.  However our record and the
Grimes record are inapposite.  In Grimes, the court quoted at length from the settlement agreement:
 Defendant, R. (ROBERT) A. GRIMES, agrees to accept the sum of THIRTY THOUSAND AND NO/100
DOLLARS ($30,000) in full settlement, compromise, and acquittance of all the issues involved in the
above-entitled and numbered cause, including all claims and demands, actions and causes of action for
compensation pursuant to the provisions of the Workers' Compensation Law of the State of Texas growing
out of, or connected in any way with, an accident alleged to have occurred in Collin County, Texas, on or
about July 16, 1989, when the said Defendant, R. (ROBERT) A. GRIMES, claims to have been in the course
of employment for GTE Southwest, Inc. (hereinafter referred to as "GTE Southwest, Inc." or "Employer")
which employer is alleged to have been a subscriber to the Worker's Compensation Law of the State of Texas
and carried a policy of such insurance with the Plaintiff, LUMBERMENS MUTUAL CASUALTY
COMPANY, herein, and from any and all claims for compensation in connection with the claim filed by
Defendant, R. (ROBERT) A. GRIMES, before the Texas Workers' Compensation Commission in
89-178042-WA and styled as "R. (Robert) A. Grimes," and from any and all claims, demands, actions, and
causes of action of whatever kind or character as set forth and alleged ....  


Id. at 882-83.


 Contrary to Reynolds' position, the court went on to hold that the settlement agreement did not act to release
Grimes' wrongful termination and discrimination claims against GTE.  Id. at 884.
 Even in response to our specific inquiry to counsel about the location of any release language in the record,
none was furnished.  While the front of a workers compensation settlement form is before us, the pertinent
release language is patently missing - perhaps located on the rear of the form - which is conspicuous by its
absence.  And the matter is further complicated by Reynolds' judicial admission found in its first motion for
summary judgment.  There Reynolds states it is unclear what happened to the claim, but on "information and
belief" the claim was settled or abandoned by Mr. Richard.  And in any event, the claim, according to
Reynolds' own pleadings, was one for sarcoidosis, not asbestosis, silicosis, or cancer due to other toxins.  As
in Grimes, we hold that Reynolds has not proven, as a matter of law, appellants' claims were released or
precluded by res judicata.  See Grimes, 997 S.W.2d at 884.  For the same reasons, Reynolds' proof fails to
establish Mr. Richard actually made an election of remedies. (4)
 Turning to Reynolds' argument on limitations, appellants assert Reynolds once again has not met its burden. 
A defendant moving for summary judgment on the affirmative defense of limitations must prove conclusively
the elements of that defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997).  
Reynolds' only proof came from the widow's deposition that the deceased told her, prior to 1990, that he
thought asbestos made him sick.  Such unscientific testimony is no evidence under many supreme court
holdings.   See, e.g., Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 645-46 (Tex. 2000); Merrell Dow
Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996). And, once again, Reynolds' motion does not address
pancreatic, gastrointestinal and liver cancers, aluminum lung, silicosis, or other alleged injuries. (5)  We sustain
appellants' issue on limitations.
 Finally, applying the traditional summary judgment standard to appellees' assertions of no wrongful death
action and no known cause of scarodosis, these defenses also fail. See Tex. R. Civ. P.  166a(c).  The
applicable standard of review is whether Reynolds, as the summary-judgment movant, established that there is
no genuine issue of material fact and that it is entitled to judgment as a matter of law on the grounds it set
forth in its motion. Pustejovsky, 35 S.W.3d at 645-46.   Reynolds points to medical testimony that Mr.
Richard died from liver or pancreatic cancer, not asbestosis or sarcoidosis.  Further, sarcoidosis is idiopathic
and therefore appellants have no cause of death.  Appellants counter that asbestosis and silicosis are distinct
diseases.  Mr. Richard may have had, or probably had, up to four separate and distinct work-related diseases
at the time of his death: (1) sarcoidosis, the subject of the prior claim, was diagnosed by biopsy in 1980; (2)
asbestosis was diagnosed post-mortem by Dr. Alford; (3) silicosis may have been present; and (4) cancer
undoubtedly existed and well could have been caused by alleged exposure to toxins.  The death certificate
indicated cardiopulmonary arrest secondary to cancer with liver involvement.  Mr. Richard was fifty when he
died.
 When reviewing a summary judgment under either standard, we view the evidence in the light most favorable
to the non-movant, disregarding all contrary evidence and inferences.  Randall's Food Mkts., Inc., 891 S.W.2d
at 644.  With its rambling, shotgun motion, Reynolds cannot demonstrate there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law.  See Pustejovsky, 35 S.W.3d at 645-46; Nixon,690
S.W.2d at 548. (6)  Reynolds' summary judgment proof does not establish it did not proximately cause the
injuries and death.  Even assuming there was no evidence of a sarcoidosis-caused death, Reynolds still does
not negate its known toxins as a cause of death or injury to the deceased.  Appellants' issue is sustained.
VI
 In conclusion, we need not address the trial court's denial of appellants' second motion for continuance.  We
have already noted that appellant was not given the required notice of the second motion for summary
judgment.  And we would observe that when presented with a proper motion to compel, appellee should be
ordered to file sworn answers to discovery as required by the rules.  Tex. R. Civ. P. 197.2 (d).
 The judgment of the trial court is reversed and remanded.

Don Wittig
 Retired Justice


Publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this the
12th day of June, 2003.
1. Retired  Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas
pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
2.  Plaintiffs' second amended petition was apparently filed about April 27, 2001.  We are hampered in
ascertaining the actual filing date of these documents with the district clerk, because there is neither a file
stamp mark nor other electronic indicia of the date or time of filing.
3.   We recognize that if appellee were successful in its election-of-remedies affirmative defense, certain
intentional tort claims would fail.  However, the motion does not address the intentional torts, if any, directed
at the deceased in his non-employee status.
4.   Were this a trial on the merits, we could say there is some evidence of an election of remedies on the
sarcoidosis claim, but that would still leave no evidence of election of remedies on the several other
independent claims asserted.
5.   Nor does appellee inform either the trial court or us, which, if any, of the minor's claims it argues are
barred.   We also note the absence of an attorney ad litem to protect the interests of the minor, if there exists
any potential conflict with the widow's claims.
6.   We are not unsympathetic to the trial court faced with such a plethora of claims. Perhaps after special
exceptions were dealt with, the case could be better sorted.  It is difficult to imagine that the 1980 sarcoidosis
diagnosis would not be the subject of a proper motion for summary judgment.  Indeed, a specific no-evidence
motion properly challenging an essential element of a claim of the other party would then shift the burden to
the party with the burden of proof at trial.  See Lampasas, 988 S.W.2d at 432.  However, the summary
judgment burden for a party moving on its own affirmative defense will virtually always fall on the movant,
not the respondent.  
