Judgment Motion

To prevail on a traditional summary-judgment motion, a movant must show that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). A defendant is entitled to summary judgment by conclusively negating at least one essential element of the plaintiff’s cause of action or establishing each element of an affirmative defense. Radcliffe v. Tidal Petroleum, Inc., No. 04-15-00644-CV, 2017 Tex. App. LEXIS 1049, at *25 (Tex. App.—San Antonio Feb. 8, 2017, no pet.). “A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.” Garner Envtl. Servs. v. First in Rescue, Safety & Training, LLC, No. 01-16-00388-CV, 2016 Tex. App. LEXIS 13631, at *5 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016, no pet.). A party moving for summary judgment based on an affirmative defense bears the burden of proving each element of that affirmative defense. FDIC v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012). Defendant Brad Avey is entitled to summary judgement because he can either establish each element of an affirmative defense to or negate at least one element of Plaintiffs’ causes of action. …show more content…
Avey did not assert that the Plaintiffs were communists or belonged to any particular political group. Rather, Avey said they were acting like communists in trying to control his freedom of expression. (Orig. Pet. 5; Def.’s Dep. 2) (emphasis added). Such control is evident from Plaintiffs going to the home owner’s association to discuss the pending investigation, telling people that Avey’s home is a nuisance, and that it is “hideous.” (Id.). Avey’s opinion is no different from the opinions that Plaintiffs have continually