No. 00-00619
TBE LAW OFFICES OF IN THE DISTRICT COURT
G. DAVID WESTFALL, P.C. X
X
vs. 294h JUDICIAL DISTRICT
X
UDO BIRNBAUM VAN ZANDT COUNTY, TEXAS
COUNTER DEFENDANT LAW OFFICE OF G. DAVID WESTFALL, P.C.
AND G. DAVID WESTFALL'S MOTION FOR SUMMARY JUDGMENT
COME NOW, The Law Offices of G. David Westfall, P.C. and G. David Westfall, Counter-Defendant and Third Party Defendant, in the above-styled and numbered cause and makes and files this their Motion for Summary Judgment pursuant to the provisions of Texas Rules of Civil Procedure 166a, and in support thereof would thereby show the Court the following:
This Motion for Summary Judgment is based on the pleadings on file with the Court, all discovery requests and responses or lack of responses thereto. The foregoing shows as a matter of law that with regard to the issues raised there is no genuine issue as to any material fact, and that the Law Office of G. David Westfall, P.C. and G. David Westfall are entitled to judgment as a matter of law.
The Texas "no-evidence motion" requires, like the federal standard, that if the issue is one on which the movant does not bare the burden of proof and after an adequate time for discovery has passed, summary judgment is mandated if the respondent fails to make a showing icient to establish the existence of each element essential to its case.
Celotex v. Catrett, 477 U.S. 317 (1986), see Clay M. White, "A New Rule For Texas Summary Judgments," INSURANCE DEFENSE LEGAL UPDATE December 1997.Moreover, simply showing the existence of a fact issue will not suffice to defeat a "no evidence~' summary judgment; there must be a "genuine issue" regarding a "material fact." There is no genuine issue where the record, taken as a whole, could not lead a rational trier of fact to find for the respondent.
Mats7ishita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,Counter DefL.O.G.D. W. & G.D. TY.'sMotionfor SummaryJudgment - I
587 (1986). In the present situation, after reviewing the record as a whole, a rational trier of fact could not find for Udo Birnbaum on any of his claims against The Law Office of G. David Westfall, P.C. and G. David Westfall.
III.
There is no sustainable cause of action against The Law Office of G. David Westfall, P.C. and/or G. David Westfall as a matter of law, and there being no question in law or in fact which prohibits the granting of this Motion for Summary Judgment, The Law Office of G. David Westfall, P.C. and G. David Westfall are entitled the same.
WHEREFORE PREMISES CONSIDERED, Counter Defendant
The Law Office of G. David Westfall, P.C. and Third Party Defendant G. David Westfall pray that this court grant their NoEvidence Motion for Summary Judgment dismissing Udo Birnbaum's claims against them with prejudice to its being refiled, and award such other relief, at law or equity, as to which they may be justly entitled. Respectfully submitted,CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served upon all counsel of recor
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y"' First Class Mail
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on this the day of August, 2001.
N.G. Iftavid Westfall
Counter DefL. 0. G.D. W. & G.D. W.'s Motionfor Summary Judgment - 2