Lead Opinion
OPINION
Opinion by
The Court decides this appeal en banc to resolve the important issues raised regarding no-evidence summary judgment practice. Appellants complain that a no-evidence motion for summary judgment that challenges “one or more” of the listed elements of each of appellants’ claims— without identifying the specific element or elements being challenged — is legally insufficient. We conclude such a motion fails to meet the standard of specificity mandated by rule 166a(i) of the Texas Rules of Civil Procedure because it fails to identify what element or elements are being challenged. We further conclude there is no “fair notice” exception to the ride that would force a non-movant to present evidence in support of an element that is not specifically identified as a challenged element. Finally, because appel-lees’ motion is clearly insufficient, we conclude it may be challenged for the first time on appeal. We reverse the trial court’s judgment and remand the cause for further proceedings.
FACTUAL BACKGROUND
Gloria Rubio and Jose Fuentes are the founders and current owners of a restaurant chain known as “Gloria’s.” Gloria’s menu focuses on Salvadoran, Mexican, and Tex-Mex cuisine. According to appellants, they spent significant time and money researching recipes, food preparation, and restaurant decoration, which they claim resulted in customer loyalty, recognition, and financial success. Appellants assert that their research produced trade secrets known only to Rubio, Fuentes, and Gloria’s employees, and that they had contractual relationships with both their employees and their suppliers.
Mario Alfaro worked as a manager at Gloria’s for twenty years. Alfaro then left Gloria’s to start a new restaurant, Mario Sabino’s, with his business partner, Sabino Valle. Mario Sabino’s served food similar to that found on Gloria’s menu. Appellants claim that appellees used confidential information, misappropriated trade secrets including recipes, and tortiously interfered with Gloria’s contractual relations by recruiting Gloria’s employees to unlawfully compete with Gloria’s.
ANALYSIS
I. Required Specificity for No-Evidence Motion for Summary Judgment
In reviewing a motion for no-evidence summary judgment, this Court adheres closely to the text of rule 166a(i) and the comment to that rule informing its construction. See Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C.,
In this case, appellees’ motion for no-evidence summary judgment identified each of appellants’ claims, gave the page
Appellees respond that the language of the motion was sufficient to inform appellants that they were moving for summary judgment on the ground that there was no evidence to support “each and every” element of appellants’ claims. In making this argument, appellees equate the phrase “one or more” with the phrase “each and every.” The two phrases, however, are fundamentally different. The phrase “each and every” clearly has the single meaning of “all.” In contrast, the phrase “one or more” means “at least one” but also potentially “several” or “all.” It is in exactly this sense that the phrase is used in rule 166a(i) when it permits a movant to seek a no-evidence summary judgment on the ground that there is no evidence of “one or more” essential elements of a claim. Nelson v. Regions Mortg., Inc.,
Appellees argue that the combination of identifying “the claims plead by the Plaintiffs, the elements of each cause of action, and that they have no evidence on one or more elements of the cause of action” renders the motion “simple, clear and unambiguous.” The fact that appellees’ motion references the page number in appellants’ petition where the elements of each claim are alleged and thirty-two paragraphs of factual allegations are incorporated by reference, together with a listing of the elements in the no-evidence motion itself, does nothing to inform appellants about which elements of each claim the motion challenges. This combination even in close proximity, without more, does nothing to clarify the scope of the motion.
Appellees argue in detail about the sufficiency of appellants’ responsive evidence to support each factual theory of recovery within each of appellants’ claims. In so doing, appellees contend the no-evidence motion is legally sufficient to challenge not only each element of each claim but also each factual theory of recovery within each claim. Although we agree that a motion for no-evidence summary judgment may challenge distinct factual allegations and theories of recovery — see rule 166a(e)— such a challenge must be specific and connected to a particular element of a cause of action or defense to meet the requirements of the rule. See Tex.R. Civ. P. 166a(i); Garcia,
The purpose of a motion for no-evidence summary judgment is to assess the proof on an element of a claim or defense the movant believes in good faith is unsupported by evidence, after there has been adequate time for discovery, to determine if there is a genuine need for trial. See Reynosa v. Huff,
Texas courts that have addressed no-evidence motions using the same or similar wording have found the motions legally insufficient to support summary judgment on elements that were not specifically identified. In Keathley v. Baker, No. 12-07-00477-CV,
Appellees contend that, at a minimum, their motion provided appellants with fair notice of the elements being challenged, thereby satisfying the requirements of rule 166a(i). They argue that we should discern fair notice based on appellants’ thorough response to the motion and the detailed briefing on the issues in the trial court. We decline to recognize a fair notice exception to the rule. See Bever,
Appellees support their fair notice argument by citing Timpte Industries, Inc. v. Gish,
Rule 166a(i) unconditionally requires a movant to specify the elements as to which there is no evidence. See Tex.R. Crv. P. 166a(i). We apply the rule strictly so as not to deprive litigants of their right to a full hearing on the merits of any real issue of fact. See Compton v. Calabria,
Traditional summary judgments cannot be upheld upon grounds not raised in the motion for summary judgment. City of Midland v. O’Bryant,
Furthermore, given the complete absence of specificity in the motion at issue, we cannot conclude appellants had any notice as to which elements of their claims appellees were challenging. The fact that appellants, out of an abundance of caution, chose to address all of the elements of each of their factual theories of each of their claims in response to the motion does not transform appellees’ conclusory motion into a legally sufficient no-evidence motion for summary judgment.
III. Waiver
Finally, appellees argue that appellants failed to challenge the sufficiency or clarity of the motion in the trial court.
This Court has held that the legal sufficiency of a no-evidence motion for summary judgment may be challenged for the first time on appeal in the same manner as a challenge to the legal sufficiency of a traditional motion for summary judgment. See Cimarron Hydrocarbons Corp. v. Carpenter,
But an exception or objection in the trial court is not required when a traditional motion fails to present any ground for summary judgment on a claim or defense. McConnell,
CONCLUSION
Based on the foregoing, we conclude appellees’ motion for no-evidence summary judgment is insufficient as a matter of law. We resolve appellants’ first issue in their favor. It is unnecessary for us to address the remaining issues presented by the parties. See Tex.R.App. P. 47.1.
We reverse the trial court’s judgment and remand the cause for further proceedings.
Dissenting Opinion By Justice
Notes
. We note that in the trial court, appellants mentioned in their response to appellees’ no-evidence motion that the elements challenged were not specified and, therefore, the motion was insufficient.
. Accord In re Estate of Swanson,
Dissenting Opinion
dissenting.
Because I would conclude Mario Sabi-no’s no-evidence motion for summary judgment gave fair notice of the elements being challenged, and that Gloria’s waived any complaint seeking further specificity, I respectfully dissent.
Gloria’s sued Mario Sabino’s for misappropriation of trade secrets, tortious interference with contractual relations, and conversion arising out of Mario Sabino’s operation of a restaurant in competition with Gloria’s. Gloria’s also sought a permanent injunction based upon Mario Sabi-no’s alleged misappropriation of trade secrets.
Mario Sabino’s filed a no-evidence motion for summary judgment on Gloria’s claims. In its motion, Mario Sabino’s followed the same formula challenging each of appellant’s three claims (tortious interference, misappropriation of trade secrets, and conversion). In each challenge, Mario Sabino’s stated: “There is no competent summary judgment evidence of one or more of the following elements of [name of tort] on which Plaintiffs have the burden of proof at trial.” In each challenge, Mario Sabino’s then listed all elements of the particular claim being challenged. Finally, Mario Sabino’s concluded each challenge contending that it was entitled to summary judgment because Gloria’s had no evidence of “one or more” elements of the specified cause of action.
Gloria’s did not specially except to the motion. Instead, Gloria’s, interpreting the motion as challenging each of the enumerated elements of each cause of action, responded to the motion in full, purporting to raise a fact issue on each enumerated element. Gloria’s did, however, complain in its conclusion that the motion was “vague” and failed to mention the “exact elements” it was challenging. The trial court granted Mario Sabino’s motion in its entirety.
According to Gloria’s, the trial court erred in granting the no-evidence motion for summary judgment because the motion failed to identify any element that lacked evidentiary support. The majority agrees concluding the motion did nothing “to inform” Gloria’s about which elements of each claim were being challenged. The majority thus concludes the motion was legally insufficient as a matter of law and
I agree with the majority that a no-evidence motion for summary judgment must “state the elements” upon which the movant believes there is no evidence. Tex.R. Civ. P. 166a(i). I also agree the motion must be specific in challenging the evidentiary support for an element of a claim or defense. Timpte Indus., Inc. v. Gish,
In Timpte Industries, the plaintiff non-movant complained that the defendant’s no-evidence motion for summary judgment was insufficient to meet rule 166a(i)’s specificity requirements with respect to an element of his products liability cause of action. The Texas Supreme Court explained that the underlying purpose of the specificity requirement is “to provide the opposing party with adequate information for opposing the motion, and to define the issues for the purpose of summary judgment.” Id. at 311 (citing Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex.1978) (traditional summary judgment case)); see also Henning v. OneWest Bank, FSB,
I would conclude the motion in this case as a whole, read in context and in conjunction with Gloria’s reply, gave Gloria’s fair notice that the motion was challenging each and every element that was listed in the motion. I would further conclude that Gloria’s claim that it chose to address all the elements of each of its causes of action because it was afraid to “guess” as to “which” elements were being challenged is disingenuous. The motion can reasonably be read in only one of two ways — as challenging all of the listed elements — or as challenging no specific element.
I would further conclude that while the motion for summary judgment may have suffered from an ambiguity, Gloria’s was required to object in the trial court and preserve this complaint for review.
I would further conclude the majority places too much weight on the possibility that the motion in this case might somehow immunize the movant from the requirement that a no-evidence motion be based on goodfaith. There is no suggestion Mario Sabino’s did not have a proper basis to challenge each and every element of Gloria’s claims, and the summary judgment record suggests otherwise. And there is nothing inherently improper about “forcing” a plaintiff to come forward with more than a scintilla of evidence to raise a fact issue on each element of the claims for which it has filed suit. See Nelson v. Regions Mart., Inc.,
Finally, the majority’s conclusion leads to what I perceive to be a more problematic result. Specifically, the majority’s conclusion effectively allows a summary judgment nonmovant to lay behind the log— attempt to raise a fact issue on the precise elements they later claim were not raised — and if they fail to do so in the trial court — then obtain a wholesale and summary reversal on appeal. This result is particularly problematic where, as here, Mario Sabino’s could have easily cured the error in the trial court had Gloria’s properly objected and obtained a ruling.
I would conclude Mario Sabino’s no-evidence motion for summary judgment was legally sufficient because it gave Gloria’s fair notice that Mario Sabino’s was challenging each of the elements listed in the motion. Further, to the extent the motion was vague or ambiguous, I would conclude Gloria’s waived error by failing to object. Therefore, I respectfully dissent.
. Stated otherwise, it would not have been reasonable for Gloria’s to interpret the motion as requiring it to pick one element of a cause of action and respond to only that element. The motion either required Gloria’s to do nothing, to object to the motion, or to respond to each element.
. To the extent the statement in Gloria’s conclusion to its summary judgment response can be interpreted as an objection, Gloria's