The Party Adverse to a Summary Judgment Motion May, Without Filing an Answer or other Response, Raise on Appeal the Sufficiency of the Summary Judgment Proof to Support the Specific Grounds Stated in the Motion, but, in the Absence of Such an Answer or Other Response, May Not Raise Any Other Material Fact Issue as Grounds for Reversal
Gregory, Louis P.
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Analyzes the issue of whether an appellate court, in light of the 1978 amendment to Rule 166-A(c) of the Texas Rules of Civil Procedure, could review the sufficiency of the summary judgment proof to support the motion when the adverse party failed to file an answer or other response to the motion. The author praises the Combs v. Fantastic Homes, Inc. case as an exceptional decision that implements the purpose of limiting issues on appeal to those presented to the trial court without depriving a non-responding party of their right to a full trial on the merits when the summary judgment proof is clearly insufficient to support the motion. The motion should stand or fall on its own merits regardless of the opponent’s participation.