# No-evidence summary judgment

Source: https://www.jhenrylaw.com/mechanism/no-evidence-summary-judgment/
Author: John P. Henry, John Henry & Associates, PLLC
Reviewed: 2026-08-02

**Tex. R. Civ. P. 166a(i)**

## Can a no-evidence summary judgment be used offensively against affirmative defenses in Texas?

Yes. A no-evidence motion under Tex. R. Civ. P. 166a(i) can be aimed at any element on which the opposing party bears the burden of proof — which includes their affirmative defenses. It removes the defense case before the merits are reached. In Aramcor v. Tri Marsh Retail LLC the court granted it against all four pleaded defenses: accord and satisfaction, lack of consideration, lack of contractual privity, and the Statute of Frauds.

> 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)

## When it applies

After an adequate time for discovery, against any claim or defense the other side must prove. Most useful where a defendant has pleaded a stack of boilerplate affirmative defenses it never intended to support with evidence — which is most defendants.

## How it is proved up

1. Specify the elements. A motion that says 'there is no evidence of Defendant's defenses' is a general no-evidence motion and is void. Each defense gets its own heading and each element is named.
2. Establish that adequate time for discovery has passed — the level of the discovery control plan, the discovery deadline, and what was actually served and answered.
3. File no evidence with it. Attaching evidence to a no-evidence motion invites the argument that the movant assumed a burden it does not have. Keep the traditional motion and its evidence in a separate instrument.
4. Pair it with objections to whatever the response attaches, so the evidence that would raise the scintilla is struck before the court weighs it.

## What defeats it

- More than a scintilla on the challenged element. The bar is low, so the motion works best against defenses that were pleaded reflexively and never developed.
- A motion that fails to identify elements with specificity.
- A successful continuance under 166a(g) on the ground that discovery is incomplete.

## Where I have used it

Aramcor v. Tri Marsh — granted against all four affirmative defenses. Murphy v. Liberty Hill Construction, LLC and McGrath — combined with traditional grounds across all eight causes of action.

## The order

Order Granting Plaintiff's Motion for No-Evidence Summary Judgment — Aramcor, Inc. v. Tri Marsh Retail LLC, County Court at Law No. 5, Williamson County, Texas, Cause No. 24-0702-CC5, signed March 7, 2025.

```
CAUSE NO. 24-0702-CC5

ARAMCOR, INC., Plaintiff
v.
TRI MARSH RETAIL LLC, Defendant

IN THE COUNTY COURT AT LAW NO. 5
WILLIAMSON COUNTY, TEXAS

ORDER GRANTING PLAINTIFF'S MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

On this day, the Court heard Aramcor, Inc.'s motion for no-evidence summary judgment on Tri Marsh Retail LLC's affirmative defenses of accord and satisfaction, lack of consideration, lack of contractual privity, and the Statute of Frauds.

After considering the motion and Tri Marsh's response, the Court GRANTS Aramcor's motion and finds that there is no evidence to support Tri Marsh Retail LLC's affirmative defenses of accord and satisfaction, lack of consideration, lack of contractual privity, and Statute of Frauds.

SIGNED on March 7, 2025.

_______________________________
PRESIDING JUDGE
```

## Questions

**Can a plaintiff file a no-evidence motion for summary judgment in Texas?**

Yes. The rule turns on who carries the burden of proof, not on who filed the suit. A plaintiff may move on the elements of a defendant's affirmative defenses or counterclaims.

**What is 'adequate time for discovery' under Rule 166a(i)?**

There is no fixed period. Courts look to the nature of the case, the discovery control plan, the discovery already conducted, the deadlines, and whether the responding party diligently pursued discovery. Reciting the actual discovery history in the motion is what makes the showing.

**Does a no-evidence motion have to identify specific elements?**

Yes. Rule 166a(i) requires the motion to state the elements as to which there is no evidence. A general no-evidence challenge is insufficient and is subject to being treated as void.


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