law-motion-for-summary-judgment-on-affirmative-defense | summary judgment standards | appeal from
summary judgment

SUMMARY JUDGMENT BURDENS

Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and
that the movant is entitled to judgment as a matter of law.  TEX. R. CIV. P. 166a(c).

A matter-of-law summary judgment is proper only when the movant establishes that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law.  TEX. R. CIV. P. 166a(c).  
The
motion must state the specific grounds relied upon for summary judgment.  Id.

MSJ BASED ON AFFIRMATIVE DEFENSE

To prevail on a traditional motion for summary judgment on an affirmative defense, the party asserting the
defense must prove all elements of the defense as a matter of law. See id; Randall's Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Toles v. Toles, 113 S.W.3d 899, 907-08 (Tex. App.-Dallas 2003,
no pet.). Under both the no-evidence and traditional reviews, we consider the evidence and any reasonable
inferences in the light most favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49
(Tex. 1985). When the trial court does not state its basis for granting summary judgment, we will affirm if any of
the theories asserted are meritorious. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

DEFENDING MSJ BASED ON AFFIRMATIVE DEFENSE

If the defendant wishes to assert an affirmative defense to the motion, he must urge the defense in his
response and present sufficient evidence to create a fact issue on each element of the defense.  See Brownlee
v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95
(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing Beathard Joint Venture v. W. Houston Airport Corp.,
72 S.W.3d 426, 434 (Tex. App.—Texarkana 2002, no pet.); Jones v. Tex. Pac. Indem. Co., 853 S.W.2d 791,
795 (Tex. App.—Dallas 1993, no writ)).  The non-movant is not required to prove the affirmative defense as a
matter of law; raising a fact issue is sufficient to defeat summary judgment.  See Anglo-Dutch Petroleum, 193 S.
W.3d at 95; see also Brownlee, 665 S.W.2d at 112.

FORMAL REQUIREMENTS APPLICABLE TO SUMMARY JUDGMENT MOTIONS

A motion for summary judgment must “state the specific grounds” upon which the judgment is sought.  TEX. R.
CIV. P. 166a(c).  The motion must “stand or fall on the grounds expressly presented in the motion.”  McConnell
v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).  To prevail, the movant has the burden of
proving that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); see TEX. R. CIV. P. 166a(c).  

A defendant moving for summary judgment must conclusively negate at least one essential element of each of
the plaintiff’s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

BURDEN-SHIFTING WHEN MOVANT SATISFIES SJ STANDARD

Once the defendant produces sufficient evidence conclusively establishing his right to summary judgment, the
burden of proof shifts to the plaintiff to present evidence sufficient to raise a fact issue.  Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (citing “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d
934, 936–37 (Tex. 1972)).  In deciding whether there is a disputed issue of material fact precluding summary
judgment, “evidence favorable to the non-movant will be taken as true” and “[e]very reasonable inference must
be indulged in favor of the non-movant and any doubts resolved in its favor.”  Nixon, 690 S.W.2d at 548–49.  
Houston 8/2011


The standard of review for a traditional summary judgment is well established: (1) the movant for summary
judgment has the burden of showing that no genuine issue of material fact exists and that it is therefore entitled
to summary judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue
precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every
reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s
favor.  
See, e.g., Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

RELIANCE ON AFFIRMATIVE DEFENSE TO AVOID SUMMARY JUDGMENT

If the defendant wishes to assert an affirmative defense to the motion, he must urge the defense in his
response and present sufficient evidence to create a fact issue on each element of the defense.  See Brownlee
v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Anglo-Dutch Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87, 95
(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing Beathard Joint Venture v. W. Houston Airport Corp.,
72 S.W.3d 426, 434 (Tex. App.—Texarkana 2002, no pet.); Jones v. Tex. Pac. Indem. Co., 853 S.W.2d 791,
795 (Tex. App.—Dallas 1993, no writ)).  The non-movant is not required to prove the affirmative defense as a
matter of law; raising a fact issue is sufficient to defeat summary judgment.  See Brownlee, 665 S.W.2d at 112;
Anglo-Dutch Petroleum, 193 S.W.3d at 95.  A party’s failure to raise an affirmative defense in response to a
motion for summary judgment constitutes waiver of the defense on appeal.  Beathard Joint Venture, 72 S.W.3d
at 434.  



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