IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50031

Summary Calendar 

ELIZABETH FRET, 

 Plaintiff – Appellant, 

v. 

MELTON TRUCK LINES, INCORPORATED; DARRELL EDMOND, 

 Defendants – Appellees. 

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 5:15-CV-710

Before REAVLEY, OWEN, and ELROD, Circuit Judges. 

PER CURIAM:*

In this appeal, Elizabeth Fret (“Fret”) contends the district court erred 

in granting summary judgment in favor of Melton Truck Lines (“Melton”) and 

Darrel Edmond (“Edmond”). Because the summary judgment burden never 

shifted to Fret with regard to Fret’s simple negligence claim, we REVERSE the 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 1, 2017

Lyle W. Cayce

Clerk

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judgment on the simple negligence and respondeat superior claims and 

REMAND those claims only. 

I. FACTUAL BACKGROUND

This is a personal injury and negligence lawsuit resulting from a motor 

vehicle accident that occurred when Edmond, an employee of Melton, struck a 

vehicle driven by Fret. Fret alleges that she sustained personal injuries as a 

result of the collision. Fret has appealed the district court’s grant of summary 

judgment in favor of Edmond and the trucking company that employed 

Edmond on Fret’s simple negligence and respondeat superior claims.1

Fret and Edmond were both driving on a two-lane portion of Interstate 

410 in San Antonio, Texas. While attempting to change from the right to the 

left lane, Edmond collided with Fret, who was driving in the left lane. Edmond 

was operating a commercial vehicle while in the course and scope of his 

employment with Melton and with the permission and consent of Melton. 

Fret timely filed suit in Texas state court. Fret asserted causes of action 

against Edmond for negligence, gross negligence, and negligence per se for 

violation of Section 545.401 and 545.351 of the Texas Transportation Code. In 

addition, Fret asserted that Melton was liable under the doctrine of respondeat 

superior and asserted claims for gross negligence, as well as negligent hiring, 

entrustment, supervision, training, retention, and qualification. 

Melton and Edmond removed the state civil action to the United States 

District Court for the Southern District of Texas, and they filed a motion to 

transfer venue to the Western District of Texas, San Antonio Division. The 

district court granted the motion and transferred the case. 

 

1 Fret does not appeal the district court’s granting of summary judgment in regard to 

the negligence per se, gross negligence, negligent hiring, entrustment, supervision, training, 

retention and qualification claims. 

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In the district court, Melton and Edmond filed a “Partial Hybrid Motion 

for Summary Judgment” seeking summary judgment on the negligent hiring, 

training, supervision, qualification, retention, entrustment; negligence per se; 

and gross negligence claims. They did not seek summary judgment on either 

the simple negligence claim against Edmond nor the respondeat superior claim

against Melton. Fret filed a motion requesting an extension to file a response 

to Melton and Edmond’s partial hybrid summary judgment motion which the 

district court granted, setting her deadline to respond twenty days after the 

close of discovery deposition. Upon the close of discovery, Fret did not file a 

timely response to Melton and Edmond’s partial hybrid motion for summary 

judgment. Twenty-five days after the deadline to respond to the partial hybrid 

summary judgment, the district court entered an order granting Melton and 

Edmond’s motion for summary judgment. Without notice to the parties, the 

district court sua sponte granted summary judgment on the simple negligence 

claim.2 Fret failed to respond to the partial hybrid summary judgment at any 

point before the district court granted summary judgment. The district court 

stated that it granted Melton and Edmond’s motion because Fret lacked 

evidence to support her claims. The district court dismissed all of Fret’s claims 

and concluded that Fret failed to set forth specific facts showing that there was 

a genuine issue for trial. 

After the trial court granted Melton and Edmond’s summary judgment 

on all their claims, Fret filed three post-judgment motions seeking relief under 

Federal Rules of Civil Procedure 59(e) and 60(b). Fret timely filed a “Motion 

for Reconsideration and to Reopen,” seeking relief under Rules 59(e) and 

60(b)(1) as to her simple negligence claims. Fret requested that the district 

 

2 A district court may sua sponte grant summary judgment so long as the losing party 

has notice. HS Res., Inc. v. Wingate, 327 F.3d 432, 441 (5th Cir 2003). 

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court grant relief by setting aside the judgment. Fret argued that Edmond and 

Melton’s partial hybrid motion for summary judgment did not include the 

simple negligence claim, and the failure to respond to the motion for summary 

judgment was due to a misunderstanding between the parties and the district 

court. Fret alleged that the parties had agreed to extend the deadline for 

responding to the summary judgment motion but had failed to seek the district 

court’s approval. The district court entered an order denying Fret’s motion for 

reconsideration. 

Fret subsequently filed two similar motions for reconsideration. The 

latter motion for reconsideration included over one thousand pages of evidence 

and other exhibits. In her motions, Fret argued that the district court’s decision 

to grant summary judgment without consideration of the miscommunication 

regarding the agreement between the parties was manifestly unjust. Fret also 

argued it was manifestly unjust for the district court to dismiss in toto all of 

Fret’s claims. Fret argued that the sua sponte dismissal of her simple 

negligence and vicarious liability claims were inappropriate. The district court 

denied both motions to reconsider. Fret timely filed a notice to appeal of the 

district court’s order granting Melton and Edmonds motion for summary 

judgment. 

II. STANDARD OF REVIEW

We review grants of summary judgment de novo, applying the same 

standard as the district court. Templet v. Hydrochem Inc., 367 F.3d 473, 477 

(5th Cir. 2004). “The court shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue 

of material fact exists when the evidence is such that a reasonable jury could 

return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective & 

Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008). “[W]here the non-movant 

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bears the burden of proof at trial, the movant may merely point to an absence 

of evidence, thus shifting to the non-movant the burden of demonstrating by 

competent summary judgment proof that there is an issue of material fact 

warranting trial. Only when ‘there is sufficient evidence favoring the 

nonmoving party for a jury trial to return a verdict for that party’ is a full trial

on the merits is warranted.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 

(5th Cir. 1994) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249

(1986)). All reasonable inferences must be viewed in the light most favorable 

to the party opposing summary judgment, and any doubt must be resolved in 

favor of the non-moving party. Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 

2012). The non-movant must adduce affirmative evidence to defeat summary 

judgment. Anderson, 477 U.S. at 257.

III. ANALYSIS

In her complaint, Fret asserts simple negligence, negligence per se, gross 

negligence, and respondeat superior claims. Fret only challenges the district 

court’s dismissal of the simple negligence and respondeat superior claims. Even 

though Melton only specifically moved for summary judgment on the negligent 

hiring, training, supervision, entrustment, negligence per se, and gross 

negligence claims, the district court also granted summary judgment on Fret’s 

simple negligence claim. Fret argues that the district court’s grant of summary 

judgment on her simple negligence claim was inappropriate because the 

burden never shifted from the defendants to Fret. We conclude that the district 

court erred in granting summary judgment with respect to the simple 

negligence claim. 

Under Texas law, to prevail on a negligence cause of action, the plaintiff 

must prove “the existence of a legal duty, a breach of that duty, and damages 

proximately caused by the breach.” IHS Cedars Treatment Ctr. of Desoto, 

Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Fret alleges that 

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Edmond was negligent because he: (1) drove at a speed greater than a 

reasonable person would, (2) failed to timely apply his breaks; (3) took faulty 

evasive action; (4) failed to drive defensively; (5) failed to make safe decisions;

(6) failed to blow his horn to warn of imminent collision, and (7) drove 

recklessly. 

Melton and Edmond’s motion for partial hybrid summary judgment does 

not specifically address the claim of simple negligence. The motion only states, 

in a conclusory manner, that “Defendants respectfully request summary 

judgment on Plaintiffs causes of action because Plaintiff has no evidence to 

support these allegations.” Fret argues, and we agree, that this allegation of 

“no evidence,” without pointing to a specific element, is not enough to shift the 

burden from the defendants to Fret. See Austin v. Kroger Texas L.P.,—F.3d—, 

2017 WL 1379453, *8 (5th Cir. 2017).

Federal Rule of Civil Procedure 56 requires that the party “asserting that 

a fact cannot be . . . genuinely disputed” support its assertion by either “(A) 

citing to particular parts of materials in the record,” or “(B) showing that the 

materials cited do not establish the absence or presence of a genuine dispute, 

or that an adverse party cannot produce admissible evidence to support the 

fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B) (emphasis added). Subsection B is 

disjunctive, allowing the moving party to support its position either by 

reference to materials in the record or by “showing” that the other party does 

not have admissible evidence supporting the fact at issue. 

This showing does not require the party moving for summary judgment 

“to produce evidence showing the absence of a genuine issue of material fact, 

even with respect to an issue on which the nonmoving party bears the burden 

of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Fed. R. Civ. P. 56(c) 

advisory committee’s note to 2010 amendment (“Subdivision (c)(1)(B) 

recognizes that a party need not always point to specific record materials.”). 

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But it is also true that even when the non-movant bears the burden of proof at 

trial, “[s]imply filing a summary judgment motion does not immediately 

compel the party opposing the motion to come forward with evidence 

demonstrating material issues of fact as to every element of its case.” Russ v. 

Int’l Paper Co., 943 F.2d 589, 591 (5th Cir. 1991). It is not enough for the 

moving party merely to make a conclusory statement that the other party has 

no evidence to prove his case. See Celotex, 477 U.S. at 328 (White, J., 

concurring). 

Here, because the defendants did not move for, argue, or brief the simple 

negligence claim in its partial hybrid motion for summary judgment, it is 

impossible for him to satisfy the movant’s burden as set out in Celotex and 

Russ. See Celotex 477 U.S. at 325; Russ, 943 F.2d at 591. Melton and Edmond’s 

motion for summary judgment failed to identify an absence of any specific 

element of simple negligence. In fact, the motion raised no fact issues with 

regards to simple negligence nor did it identify any absence of evidence 

pertaining to any specific theory of Fret’s simple negligence claim. A mere 

conclusory statement that the other side has no evidence is not enough to 

satisfy a movant’s burden. See Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993).

As a result, the burden never shifted to Fret to go beyond the pleadings to come 

forward with specific facts creating a genuine issue for trial on the simple 

negligence claims. Therefore, it was inappropriate for the district court to grant 

summary judgment on that claim. 

Further, the district court’s brief analysis on the simple negligence issue 

also highlights why summary judgment was inappropriate. The district court

concluded that there was no evidence from which a reasonable jury could find 

that Edmond breached a legal duty it owed Fret and therefore no damages 

were proximately caused by the breach. In support of this finding, the district 

court pointed to Edmond’s deposition where he testified that he believed the 

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accident was not preventable because he looked in his mirrors, turned on his 

blinkers, and moved slowly before changing lanes. The district court held that 

because Fret submitted no evidence to contradict the precautionary measures 

taken by Edmond and because Fret never amended her original petition, no

issues of material fact remained regarding Fret’s simple negligence claim. 

We respectfully disagree with the district court and believe there are 

genuine issues of material fact as to whether a reasonable jury could have 

determined that Edmond’s breach of duty proximately caused Fret’s injuries. 

The facts relied upon by the district court are not sufficient to overcome Fret’s 

theories of negligence. For example, the fact that Edmond may have looked 

before turning on his blinker and changing lanes does not defeat Fret’s theory 

of negligence based on the allegation that Edmond did not timely apply his 

breaks, or that he drove at an unreasonable speed. Further, Edmond’s 

deposition itself—relied upon by the district court—demonstrates there is an 

issue of fact. Specifically, in the very portion of the deposition the district court

cites, Edmond repeatedly testified that he said the collision was his fault at the 

scene immediately following the crash. Edmond’s testimony itself creates a fact 

issue that defeats summary judgment with respect to the simple negligence 

claim. 

Therefore, because the summary judgment burden did not shift to Fret, 

and because there is a genuine issue of material fact, we REVERSE the district 

court’s grant of summary judgment with respect to simple negligence. We also 

REVERSE the district court’s sua sponte grant of summary judgment in 

respect to respondeat superior claim to the extent those claims are related to 

the simple negligence claim. 

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order that 

sua sponte grants summary judgment in respect to the simple negligence and 

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respondeat superior claims in favor of Melton and Edmond and REMAND to 

the district court for proceedings consistent with this opinion, and we AFFIRM 

in all other respects. 

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