Appellant=s Motion for Rehearing Overruled; Affirmed and Supplemental Majority Opinion filed January 10, 2008

Appellant=s Motion for Rehearing Overruled; Affirmed and Supplemental Majority Opinion filed January 10, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-05-00822-CV

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ROBIN CHRISMON AND LONNIE CHRISMON, Appellants

V.

HAROLD J. BROWN, INDIVIDUALLY AND AS AN AGENT OF REGISTERED TEAMS OF THE AMATEUR SOFTBALL ASSOCIATION OF AMERICA, AND REGISTERED TEAMS OF THE AMATEUR SOFTBALL ASSOCIATION OF AMERICA, Appellees

On Appeal from 127th District Court

Harris County, Texas

Trial Court Cause No. 04-00932

S U P P L E M E N T A L   M A J O R I T Y   O P I N I O N

In their motion for rehearing, appellants Robin Chrismon and Lonnie Chrismon assert arguments grounded on the proposition that appellee Registered Teams of the Amateur Softball Association of America, in its motion for summary judgment, did not assert any no-evidence grounds against the vicarious-liability claims.  The Chrismons urge that, even though Registered Teams asserted in its motion that there is no evidence of duty, it asserted a traditional ground rather than a no-evidence ground because, among other things, (1) the  words Ano evidence@ do not appear in the title of the motion or in any heading in the motion; (2) the motion does not contain a citation to Texas Rule of Civil Procedure 166a(i) or the standard of review for no-evidence summary-judgment motions; (3) Registered Teams attached evidence to its motion and quoted from that evidence; and (4) other grounds asserted in the motion are traditional grounds for summary judgment.^[1]

The Texas Supreme Court has held that attaching evidence to a motion or including other traditional summary-judgment grounds in the motion does not foreclose the movant from asserting no-evidence grounds in the motion.  See Binur v. Jacobo, 135 S.W.3d 646, 650B51 (Tex. 2004).  Likewise, our high court has concluded that, while it would be helpful for the movant to use headings to clearly delineate which summary-judgment grounds are based on Rule 166a(i), such clarity is not required for the assertion of a no-evidence ground.  See id.  According to the Texas Supreme Court, if the movant clearly sets forth its no-evidence grounds and meets Rule 166a(i)=s requirements, then the movant has asserted these no-evidence grounds.  See id.  Disagreeing with the court of appeals=s conclusion that the movant in Binur had asserted only traditional summary-judgment grounds, the Texas Supreme Court held that the movant sufficiently asserted a no-evidence ground attacking the essential element of proximate cause because A[movant=s] motion for summary judgment asserted that there was no evidence of proximate cause.@  Id. at 651.  Registered Teams satisfied Rule 166a(i) and asserted a no-evidence ground in which it attacked the essential element of duty.  See id. (concluding movant satisfied Rule 166a(i) and asserted no-evidence ground by stating in motion that there was no evidence of an essential element of plaintiff=s claim); Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 11B12 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (holding movant satisfied Rule 166a(i) and asserted no-evidence grounds by stating two essential elements of the plaintiffs= claims and asserting that there was no evidence of these elements).  Thus, we find no merit in the Chrismons= rehearing arguments premised on Registered Teams=s purported failure to assert a no-evidence ground attacking duty.^[2]  The Chrismons= motion for rehearing is denied.

/s/        Kem Thompson Frost

Justice

Motion for Rehearing Overruled and Supplemental Majority Opinion filed January 10, 2008.

Panel consists of Justices Fowler, Frost, and Edelman.^* (Edelman, J., dissents without opinion on rehearing).

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^[1]           The Chrismons also state that Registered Teams admitted the existence of duty in its motion; however, we addressed this issue on original submission.  See Chrismon v. Brown, No. 14-05-00822-CV, CS.W.3dC,C, 2007 WL 2790352, at *8 & n.12 (Tex. App.CHouston [14th Dist.] Sept. 27, 2007, no pet. h.). The Chrismons also state that Sterner v. Marathon Oil Co. would provide the standard of review as to any traditional summary-judgment ground that Registered Teams asserted against the essential elements of the Chrismons= claims.  See 767 S.W.2d 686, 690 (Tex. 1989). This is incorrect; rather, Sterner deals with a legal-sufficiency challenge to an adverse fact finding as to which the appellant had the burden of proof at trial.  See id.  The Texas Supreme Court has stated that, in reviewing a summary-judgment de novo, appellate courts must consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.  2007). 

^[2]           In their final argument on rehearing, the Chrismons assert that, even if Registered Teams asserted a no-evidence ground as to duty, this court has affirmed that motion on a ground not asserted in Registered Teams=s motionCthe inherent-risk doctrine.  We addressed this argument on original submission.  See Chrismon, 2007 WL 2790352, at *8 & n.12.  We stand by this analysis.

^*           Senior Justice Richard H. Edelman sitting by assignment.