Aerotek, Inc. v. Josephson Dunlap, LLP ( 2022 )

Affirmed and Opinion Filed April 19, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00037-CV
AEROTEK, INC., Appellant
V.
JOSEPHSON DUNLAP, LLP, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-06195
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
Appellant Aerotek, Inc. appeals from an order granting appellee Josephson
Dunlap, LLP’s traditional and no-evidence motion for summary judgment and
denying Aerotek’s countermotion for partial traditional summary judgment.
Aerotek brings one issue. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
This lawsuit was brought by plaintiff/appellant Aerotek, Inc. (Aerotek), a
staffing company, against defendant/appellee Josephson Dunlap, LLP (Dunlap), a
Houston-based law firm specializing in employment litigation, alleging defamation-
by-implication in two items it posed on the website LinkedIn.com. On October 19,
2020, Dunlap filed a combined motion seeking no-evidence and traditional summary
judgment on Aerotek’s defamation claim.
The following month, on November 18, Aerotek filed a document that
contained both a response to Dunlap’s no-evidence summary judgment motion and
a countermotion for partial traditional summary judgment for Aerotek on liability.
Aerotek’s response to Dunlap’s no-evidence motion for summary judgment asserted
it was premature because the parties had not conducted any discovery. Dunlap filed
a reply to Aerotek’s response to Dunlap’s motion and a response to Aerotek’s
countermotion. Aerotek then filed a reply to the defendant’s response to Aerotek’s
countermotion.
On December 9, 2020, the trial court held a hearing on the motions. Five days
later, on December 14, the trial court granted Dunlap’s motion and denied Aerotek’s
countermotion. The trial court’s order does not specify the type of summary
judgment granted in favor of Dunlap. Final judgment was signed on December 23,
2020, and this appeal followed.
DISCUSSION
In its only issue, Aerotek argues it was entitled to judgment as a matter of law
on the issue of Dunlap’s liability for defamation, and that Dunlap was not entitled to
judgment as a matter of law on Aerotek’s defamation claim.
When, as in this case, “a party moves for summary judgment on both
traditional and no-evidence grounds . . . we first address the no-evidence grounds.”
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Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). If the challenge
to the no-evidence summary judgment motion fails, we need not consider the
traditional motion. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
Turning to Dunlap’s no-evidence summary judgment motion, we begin by
noting that Dunlap’s traditional and no-evidence summary judgment motion alleged
it was entitled to no-evidence summary judgment because Aerotek “has no evidence
to support multiple elements of its defamation claim,” i.e., no evidence (1) the
“[d]efendant published a false statement/implication;” (2) “any such
statement/implication defamed Aerotek;” (3) the “[d]efendant was at least negligent
in publishing such statement/implication;” (4) “such statement/implication damaged
Aerotek’s reputation;” or (5) “such statement/implication caused Aerotek to suffer
special damages.”
But Aerotek’s only complaint in the trial court regarding the no-evidence
summary judgment motion was that the no-evidence motion was premature because
the parties had not conducted any discovery. Aerotek did not raise or reference the
evidence from its countermotion in its response to the no-evidence motion. Aerotek
also did not address the merits of its claim; did not cite to any evidence or explain
how any evidence satisfied each challenged element of its claim; and it did not
incorporate by reference its countermotion for partial traditional summary judgment
into its response to the no-evidence summary judgment.
Regarding that last point, it is well-settled that unless the non-movant
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expressly cites, relies on, or otherwise incorporates the one motion into the other,
courts do not “look at the traditional summary judgment evidence to see if it defeats
the movant’s right to no-evidence summary judgment when the rules of procedure
place the burden on the nonmovant to produce evidence.” Dyer v. Accred. Home
Lenders, Inc., No. 02-11-00046-CV, 2012 WL 335858, *4–5 (Tex. App.—Ft. Worth
Feb. 2, 2012, pet. denied); see Perkins v. Walker, No. 14-17-00579-CV, 2018 WL
3543525, *4 (Tex. App.—Houston [14th Dist.] July 24, 2018, no pet.) (mem. op.)
(“In reviewing the propriety of summary judgment on no-evidence grounds, we
ignore evidence attached to a combined summary judgment motion and offered in
support of traditional summary judgment, unless the non-movant directs the trial
court to that evidence in her response to the movant’s no-evidence motion.”); De La
Cruz v. Kailer, 526 S.W.3d 588, 595–96 (Tex. App.—Dallas 2017, pet. denied)
(“[I]n responding to a no-evidence motion for summary judgment, one must do more
than itemize the evidence and then, in a section totally separate from the recitation
of the evidence, offer general conclusions that the above evidence conclusively
establishes each element of the plaintiff’s claims.”). In addition, the trial court was
not required to search the record for evidence to support Aerotek’s claim; instead,
Aerotek was obligated to point out with specificity where in its filings there was
evidence on each of the challenged elements of its claim. De La Cruz, 526 S.W.3d
at 595.
A party appealing the grant of no-evidence summary judgment is limited to
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(1) raising the arguments it properly raised in the trial court or (2) challenging the
legal sufficiency of appellees’ no-evidence motion. See White v. Calvache, No. 05-
17-00127-CV, 2018 WL 525684, *5 n.9, *6 n.12 (Tex. App.—Dallas Jan. 24, 2018,
no pet.) (mem. op.) (refusing to consider arguments other than legally sufficiency of
appellees’ no-evidence summary judgment motion for the first time on appeal);
Brown v. Bank of Am., N.A., No. 01-14-00725-CV, 2015 WL 4760201, at *5 (Tex.
App.—Houston [1st Dist.] Aug. 13, 2015, no pet.) (mem. op.) (“Any issues, except
legal sufficiency, not expressly presented by the non-movants to the trial court in a
written response may not be considered as grounds for reversal on appeal.”); see also
Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 287–88 (Tex. App.—Dallas 2013, pet.
denied) (en banc); Macina, Bose, Copeland & Assocs. v. Yanez, No. 05–17–00180–
CV, 2017 WL 4837691, at *5 & n.2 (Tex. App.—Dallas Oct. 26, 2017, no pet.)
(mem. op.) (citing Jose Fuentes).
Insofar as the legal sufficiency of a no-evidence summary judgment motion
is concerned, “[a] motion for a no-evidence summary judgment must specifically
‘state the elements as to which there is no evidence;’ there may be no ‘conclusory
motions or general no-evidence challenges to an opponent’s case.’” Specialty
Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.]
2000, pet. denied) (quoting TEX. R. CIV. P. 166a(i) & 1997 cmt.); see also Brown v.
Tarbert, LLC, 616 S.W.3d 159, 166–67 (Tex. App.—Houston [14 Dist.] pet.
denied). “A motion for no-evidence summary judgment that does not specify the
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element or elements that are being challenged does not provide any ground upon
which the trial court can grant summary judgment.” Jose Fuentes Co., 418 S.W.3d
at 288.
Aerotek, however, does not challenge the legal sufficiency of Dunlap’s
motion. E.g., Brown, 616 S.W.3d at 167; Jose Fuentes Co., 418 S.W.3d at 288. Nor
does Aerotek contend no-evidence summary judgment was premature because there
had not been time for adequate discovery. See Dobrushkin v. Davenport Meadows,
LP, No. 05-12-01285-CV, 2013 WL 5948023, at *1 (Tex. App.—Dallas Nov. 5,
2013, no pet.) (mem. op.) (rejecting argument that trial court granted no-evidence
summary judgment before there was adequate time for discovery, holding appellant
did not file affidavit explaining need for further discovery or verified motion for
continuance); Restaurant Teams Int’l, Inc. v. MG Securities Corp., 95 S.W.3d 336,
342 (Tex. App.—Dallas 2013, no pet.) (“[W]e conclude the trial court did not abuse
its discretion by granting the no-evidence motion for summary judgment before the
end of the discovery period.”). In fact, the “Argument” section of Aerotek’s
appellate brief is twenty pages long but includes only one sentence mentioning the
no-evidence summary judgment, and it reads as follows: “Josephson Dunlap not
only failed to conclusively disprove any required element of Aerotek’s defamation
claim, but also failed to establish that Aerotek had ‘no evidence’ to support any
element applicable in this case.” Even if we construe this as a legal sufficiency
challenge, Dunlap’s motion plainly identifies and/or challenges the elements for
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which Aerotek allegedly has no evidence. E.g., Brown, 616 S.W.3d at 167; Jose
Fuentes Co., 418 S.W.3d at 288.
It was Aerotek’s burden to produce summary judgment evidence raising a
genuine issue of material fact as to each challenged element of its claim, not
Dunlap’s. See TEX. R. CIV. P. 166a(i); Galvez v. Tornado Bus Co., No. 05-13-00993-
CV, 2015 WL 1730175, *3 (Tex. App.—Dallas Apr. 15, 2015, pet. denied) (mem,
op.) (nonmovant in no-evidence summary judgment “has the burden to produce
summary judgment evidence raising a genuine issue of material fact as to each
challenged element of its cause of action.”). Also, no supporting evidence in the
record is cited in Aerotek’s brief and there is no supporting explanation or argument.
See, e.g., In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.)
(“When a party fails to adequately brief a complaint he waives the issue on appeal.”).
Accordingly, we conclude the trial court did not err in granting no-evidence
summary judgment for Dunlap. Because the summary judgment can be affirmed on
no-evidence grounds, we need not address Dunlap’s traditional summary judgment
motion. We overrule Aerotek’s issue and affirm the trial court’s judgment.
/Lana Myers//
210037f.p05 LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AEROTEK, INC., Appellant On Appeal from the 162nd Judicial
District Court, Dallas County, Texas
No. 05-21-00037-CV V. Trial Court Cause No. DC-20-06195.
Opinion delivered by Justice Myers.
JOSEPHSON DUNLAP, LLP, Justices Osborne and Nowell
Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED. It is ORDERED that appellee JOSEPHSON DUNLAP, LLP,
recover its costs of this appeal from appellant AEROTEK, INC.
Judgment entered this 19th day of April, 2022.
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