Timpte Industries, Inc. v. Gish, No. 08-0043, 52 Tex. S. Ct. J. 827 (Tex. 2009).
Holloway v. Texas Elec. Utility Const., Ltd., 282 S.W.3d 207, 213 (Tex.App. --- Tyler 2009, no pet. hist. to date):
Summary judgments must stand on their own merits.
Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). As set forth previously, a no evidence motion for summary judgment must state the elements as to which the movant contends there is no evidence.
See Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex.App.-San Antonio 2001, pet. denied). The motion must be specific in challenging the evidentiary support for an element of a claim or defense; conclusory motions or general no evidence challenges to an opponent's case are not authorized.
Id. If a no evidence motion for summary judgment is not specific in challenging a particular element or is conclusory, the motion is legally insufficient as a matter of law and may be challenged for the first time on appeal.
Id.; see also Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.);
Minns, 60 S.W.3d at 213. FN2FN2. We have previously addressed whether a party was required to preserve by special exception a complaint that a no evidence motion for summary judgment failed to satisfy the requirements of rule 166a(i). See Flory v. Daimler Chrysler Corp., No. 12-02-00270-CV, 2003 WL 22872407, at *1 n. 2 (Tex.App.-Tyler Dec. 3, 2003, pet. denied) (mem. op. on reh'g). In Flory, we determined that such an issue could be waived. Id. However, we did not base our holding in that case on waiver and specifically noted that the appellee's no evidence motion for summary judgment complied with rule 166a(i). Id. Upon further consideration, and in light of the holdings of our sister courts of appeals in cases such as Killam, Crocker, and Minns, we hold that the legal sufficiency of a no evidence motion for summary judgment can be challenged for the first time on appeal.
Contra, Amarillo Court of Appeals:
Moreover, by their special exceptions, Roth and Whatley did not challenge the motion as being deficient for failing to expressly state the specific grounds required by subparagraph (c), or for failing to state the elements on which there was no evidence as required by subparagraph (i). However, on appeal, they challenge the sufficiency of the motion under Rule 166a(c) and (i). Because these issues were not presented to the trial court in writing, they cannot be considered on appeal as grounds for reversal. See Tex.R.Civ.P. 166a(c); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 679 (Tex.1979).
Roth v. FFP Operating Partners, 994 S.W.2d 190, 195 Tex.App. — Amarillo 1999, pet. den.).