JOSE FUENTES CO., INC., d/b/a Gloria‘s, Gloria Rubio, Jose Fuentes, G. Rubio Enterprises, Inc., J.F. Greenville Company, Inc., J. Fuentes Colleyville, L.P., Jose Fuentes Colleyville, Inc., Carlos Fuentes, Inc., Gloria‘s Fort Worth Restaurant, L.P., Gloria Fuentes, Inc., J. Fuentes Rockwall, L.P., Jose Fuentes Addison, Inc., Gloria‘s Firewheel Restaurant, Inc., J. Fuentes Arlington, L.P., Gloria‘s Domain, Inc., and Nancy Fuentes Fairview, Inc., Appellants v. Mario ALFARO, Mario Sabino‘s, Inc. and Sabino Valle, Appellees.
No. 05-11-00228-CV.
Court of Appeals of Texas, Dallas.
Nov. 26, 2013.
418 S.W.3d 280
Opinion by Justice EVANS.
In DaimlerChrysler Corp. v. Cuno, the United States Supreme Court considered whether state taxpayers had standing to bring an action in federal court to challenge whether certain state tax credits attempting to target new investment violated the Commerce Clause. There, the plaintiffs attempted to argue standing based on their status as Ohio taxpayers, but the Court held that state taxpayers have no Article III standing to challenge state tax or spending decisions simply by virtue of their taxpayer status. 547 U.S. 332, 346, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). In doing so, the Court applied Doremus:
The foregoing rationale for rejecting federal taxpayer standing applies with undiminished force to state taxpayers. We indicated as much in Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In that case, we noted our earlier holdings that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect” to support standing to challenge “their manner of expenditure.” Id. at 433, 72 S.Ct. 394. We then “reiterate[d]” what we had said in rejecting a federal taxpayer challenge to a federal statute “as equally true when a state Act is assailed: ‘The [taxpayer] must be able to show . . . that he has sustained . . . some direct injury . . . and not merely that he suffers in some indefinite way in common with people generally.‘” Id. at 433-434, 72 S.Ct. 394 (quoting Frothingham [v. Mellon, 262 U.S. 447, 448, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)]); see ASARCO [Inc. v. Kadish, 490 U.S. 605, 613-14, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989)] (opinion of KENNEDY, J.) (“[W]e have likened state taxpayers to federal taxpayers” for purposes of taxpayer standing (citing Doremus, supra, at 434, 72 S.Ct. 394)).
DaimlerChrysler, 547 U.S. at 345, 126 S.Ct. 1854. The Court also rejected the plaintiffs’ attempt to recast their state taxpayer standing claim as a municipal taxpayer standing claim. Even though they argued that the local governments’ funds were depleted by the state tax benefits, the Court concluded “plaintiffs’ challenge is still to the state law and state decision, not those of their municipality.” Id. at 349-50.
Similarly, if IRCOT had sued Lone Star in federal court for violating federal law, it would have had no Article III standing—whether based on state or municipal taxpayer status—to do so. Why then should IRCOT have standing to bring the same claim in state court? See Paul J. Katz, Standing in Good Stead: State Courts, Federal Standing Doctrine, and the Reverse-Erie Analysis, 99 Nw. U.L. REV. 1315, 1344-49 (2005) (arguing for expansion of reverse-Erie cases to the standing context).
I therefore urge the Texas Supreme Court to take this case and apply the state taxpayer test to IRCOT‘s claims and dismiss the case for lack of standing.
Bryan L. Sample, Law Offices of Bryan L. Sample, Dallas, Robert W. Buchholz, The Law Office of Robert W. Buchholz, P.C., Dallas, for Appellees.
OPINION
Opinion by Justice EVANS.
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
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
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
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
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, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.); see also
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, 2009 WL 1871706, at *4 (Tex.App.-Tyler June 30, 2009, no pet.) (mem. op.), the court concluded that a motion challenging “one or more” elements of the plaintiff‘s breach of contract and DTPA claims was conclusory because it failed to challenge specific elements and could not support summary judgment on those claims. In Fernea v. Merrill Lynch Pierce Fenner & Smith, Inc., No. 03-09-00566-CV, — S.W.3d —, 2011 WL 2769838, at *3 (Tex.App.-Austin July 12, 2011) appeal abated, No. 03-09-00566-CV, 2011 WL 4424291 (Tex.App.-Austin Sept. 23, 2011, no pet.), a movant‘s challenge was stated as, “there is no evidence of one or more essential elements of the Plaintiff‘s causes of action against Merrill Lynch.” The court decided “such a statement does not, by itself, meet the requirements of a no-evidence motion for summary judgment.” Id. In Callaghan Ranch, 53 S.W.3d at 4, the movant listed the elements of the plaintiff‘s claim for implied dedication and contended there was “at least one element” the plaintiff could not satisfy. The movant went on, however, to specifically discuss the element of acceptance. Id. The court addressed the element specifically discussed by the movant, but the language “at least one element,” even in conjunction with a listing of the elements, was insufficient to raise a challenge to any other element. Id. We conclude the decisions in these cases align with our analysis here and are supported by a plain reading of
Appellees contend that, at a minimum, their motion provided appellants with fair notice of the elements being challenged, thereby satisfying the requirements of
Appellees support their fair notice argument by citing Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 311 (Tex.2009). In Timpte Industries, the plaintiff contended that a no-evidence motion only challenged one element, but not a second element, of the plaintiff‘s product liability claim. Id. at 310. The supreme court observed that immediately after listing the elements of the claim, the no-evidence motion expressly challenged two elements of the plaintiff‘s claim and repeated the challenge to the same two elements at the conclusion of the motion. Id. at 311. The court determined this met the specificity requirements of
Traditional summary judgments cannot be upheld upon grounds not raised in the motion for summary judgment. City of Midland v. O‘Bryant, 18 S.W.3d 209, 218 (Tex.2000); Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983). This prohibition applies to no-evidence summary judgments as well. See Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 387 (Tex.App.-Fort Worth 2003, pet. denied); Callaghan Ranch, 53 S.W.3d at 4; Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147-48 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); see also
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.1 Appellees would have us apply traditional summary judgment standards to no-evidence motions when they argue that appellants “did not move for a continuance of the hearing [and] did not file any special exceptions to the Motion. . . .” See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993) (“An exception is required should a non-movant wish to complain on appeal that the grounds [in a traditional motion for summary judgment] relied on by the movant were unclear or ambiguous.“). We disagree.
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, 143 S.W.3d 560, 562-63 (Tex.App.-Dallas 2004, pet. denied); Preston Nat‘l Bank v. Stuttgart Auto Ctr. Inc., No. 05-09-00020-CV, 2010 WL 3310727, at *2 (Tex.App.-Dallas Aug. 24, 2010, no pet.) (mem. op.); Monroe v. Dallas Cnty., No. 05-07-01630-CV, 2009 WL 2569449, at *4 (Tex.App.-Dallas Aug. 21, 2009, no pet.) (mem. op.); Crocker v. Paulyne‘s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.); Gross v. Methodist Hosps. of Dallas, No. 05-00-02124-CV, 2002 WL 1380399, at *3 (Tex.App.-Dallas, June 27, 2002, no pet.) (op. on reh‘g) (not designated for publication).2 Traditional motions for summary judgment are based on argument for the relief sought supported by evidence supplied with the motion. This corpus of material provides information from which the non-movant can determine the scope of the motion. With all the contents of a traditional motion for summary judgment, it is appropriate to require an exception or objection in the trial court if a non-movant claims the traditional motion is ambiguous as to what grounds form its basis.
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, 858 S.W.2d at 342 (“summary judgments must stand or fall on their 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“). We are not permitted to “read between the lines” or infer from the pleadings any grounds for granting summary judgment other than
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
We reverse the trial court‘s judgment and remand the cause for further proceedings.
O‘NEILL, J., dissenting.
Dissenting Opinion By Justice O‘NEILL, dissenting.
Because I would conclude Mario Sabino‘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 Sabino‘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.
In Timpte Industries, the plaintiff nonmovant complained that the defendant‘s no-evidence motion for summary judgment was insufficient to meet
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.1 While “one or more” elements does not necessarily include all elements, it certainly can. It is apparent from Gloria‘s response to the motion that it construed the motion as challenging all of the enumerated elements.
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.2 See
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 Mort., Inc., 170 S.W.3d 858, 861 (Tex.App.-Dallas 2005, no pet.) (a no-evidence summary judgment motion may challenge any or all of the elements of the plaintiff‘s claims). Further, if Gloria‘s wanted more specific allegations upon which to base a motion for sanctions, or if it believed responding to the motion with some evidence of each element of its causes of action was unduly burdensome, it could have objected to the motion in the trial court.
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.
Joined by Justices LANG and LANG-MIERS.