Appeal from the 161st District Court Ector County, Texas
Trial Court Cause No. B-16-07-0672-CV
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
Willson, J., not participating.
an appeal from a summary judgment in favor of Appellee,
Directru Assets Management, LLC (Directru Assets), and
against Appellants, Justin Smith and Richard Heredia. In one
issue, Appellants contend that the trial court erred when it
granted summary judgment. Specifically, Appellants argue that
the evidence attached to Directru Assets' combined motion
for summary judgment was sufficient evidence to raise a
genuine issue of material fact. Because we conclude that
Appellants failed to produce that evidence for the trial
court's consideration, we affirm the trial court's
sued Directru Assets for negligence and trespass. After
adequate time for discovery, Directru Assets filed a combined
traditional and no-evidence motion for summary judgment. In
relevant part, Directru Assets argued that there was no
evidence on any of the elements of Appellants' negligence
and trespass claims.
response to Directru Assets' combined motion, Appellants
produced several pieces of evidence, which they argued to the
trial court raised a genuine issue of material fact and
precluded summary judgment. Directru Assets filed its
objections to the evidence. After a hearing on the
objections, the trial court issued an order in which it
sustained Directru Assets' objections and struck
Appellants' responsive evidence for all purposes. The
record does not show that Appellants later produced any other
hearing on Directru Assets' combined motion, the trial
court granted Directru Assets' traditional and
no-evidence motion for summary judgment. The trial court also
rendered final judgment in favor of Directru Assets. In doing
so, the trial court ordered that Appellants take nothing
against Directru Assets and dismissed all of their claims
against Directru Assets with prejudice. This appeal followed.
bring one issue on appeal. In their issue, Appellants contend
that the trial court erred when it granted summary judgment
"because there was sufficient evidence to meet [their]
burden of proof." We disagree.
review grants of summary judgment de novo. Cantey Hanger,
LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our
review, we take as true all evidence favorable to the
nonmovant, indulge every reasonable inference in favor of the
nonmovant, and resolve any doubts in the nonmovant's
favor. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005).
party moves for both traditional and no-evidence summary
judgments, we first consider the no-evidence motion. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
If the nonmovant fails to meet its burden under the
no-evidence motion, there is no need to address the challenge
to the traditional motion. Merriman v. XTO Energy,
Inc., 407 S.W.3d 244, 248 (Tex. 2013). Thus, we first
review each claim under the no-evidence standard. Any claims
that survive the no-evidence review will then be reviewed
under the traditional standard.
defeat a no-evidence motion, the nonmovant must produce
evidence raising a genuine issue of material fact as to the
challenged elements. Tex.R.Civ.P. 166a(i). A genuine issue of
material fact exists if the evidence "rises to a level
that would enable reasonable and fair-minded people to differ
in their conclusions." Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499
(Tex. 1995)). The evidence does not create an issue of
material fact if it is "so weak as to do no more than
create a mere surmise or suspicion" that the fact
exists. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865,
875 (Tex. 2014) (quoting Ridgway, 135 S.W.3d at
no-evidence motion, Directru Assets properly asserted, among
other things, that there was no evidence on any of the
elements of Appellants' negligence and trespass claims.
To defeat this motion, Appellants were required to produce
evidence that raised a genuine issue of material fact on the