HUMBERTO FLORES v. CHARLES APPLER AND BENNETT WESTON LAJONE (2011)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant Humberto Flores appeals a summary judgment granted in favor of appellees Charles I. Appler and Bennett, Weston & LaJone, P.C. In two points of error, Flores contends the trial court erred in granting appellees' motion for summary judgment.   For the following reasons, we affirm the trial court's judgment.

Flores sued appellees for malicious prosecution in association with post-judgment collection attempts on a judgment that had been set aside.   Appellees filed a motion for summary judgment asserting both traditional and no-evidence grounds.   The no-evidence motion asserted Flores had no evidence of malice as required to prove a claim for malicious prosecution.   See, e.g., Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 206 (Tex.1996) (malice in the commencement of a civil proceeding is an element of malicious prosecution).   Flores filed a response to the motion for summary judgment, but did not attach any evidence to it.   The trial court granted the summary judgment without specifying the basis.

It is proper to include traditional and no-evidence grounds in a single motion for summary judgment.   See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004).   Here, appellees' motion clearly did so.   However, on appeal, Flores challenges only the traditional motion for summary judgment.   When the trial court does not state the basis for granting summary judgment, the appellant must negate all grounds that support the judgment.  Star–Telegram v. Doe, 915 S.W.2d 471, 473 (Tex.1995);  Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex.App.—Dallas 2005, no pet.);  Juarez v. Longoria, 303 S.W.3d 329, 330 (Tex.App.—El Paso 2009, no pet.).   Because Flores did not attack the summary judgment on the no-evidence grounds, we must affirm the judgment.   Juarez, 303 S.W.3d at 330;  Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384, 387 (Tex.App.—El Paso 2009, no pet.).

Nor can we conclude the trial court erred in granting the no-evidence motion.   After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that 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).   The motion must state the element or elements as to which there is no evidence.   Id. The court must grant the motion unless the respondant produces summary judgment evidence raising a genuine issue of material fact.  Id;  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).   The nonmovant need not marshal his proof, but must point out evidence that raises a fact issue on the challenged element.  Hamilton v. Wilson, 249 S.W.3d 425 (Tex.2008).

Here, Flores did not attach any evidence to his response to the motion for summary judgment.   Nor did he direct the trial court to any evidence attached to appellees' motion for summary judgment.   Therefore, the trial court properly granted the no-evidence motion.   See Moore v. City of Wylie, 319 S.W.3d 778, 782 (Tex.App.—El Paso 2010, no pet.).   We resolve Flores's issues against him and affirm the trial court's judgment.

091523F.P05

MICHAEL J. O'NEILL JUSTICE