CROSSOVER: No-Evidence Summary Judgment Fails If It Ignores the Pleaded Assault Claim

Lincoln Lee Lankford v. Gregory Kevin Cline, 09-25-00108-CV, August 31, 2026.

On appeal from 457th District Court, Montgomery County, Texas

Synopsis

A Rule 166a(i) no-evidence motion must expressly challenge the claim on which summary judgment is sought. Where the live pleading asserted a direct assault claim, a motion aimed only at civil conspiracy, aiding-and-abetting theories, theft, and exemplary-damages predicates did not support summary judgment on assault, so the judgment had to be reversed and remanded as to that unaddressed claim.

Relevance to Family Law

This is a procedure case with real consequences in family litigation. In divorce, SAPCR, and post-judgment enforcement matters, parties often plead tort or quasi-tort theories alongside family-law claims—assault between spouses, civil conspiracy relating to dissipation or concealment of community assets, conversion of property, intentional infliction allegations, or fee-shifting theories tied to wrongful conduct. Lankford is a reminder that a no-evidence motion does not sweep broadly just because it attacks part of the case: if the live pleading contains a stand-alone claim, the motion must specifically identify the challenged elements of that claim. For family-law litigators, that means both sides must match the motion to the operative pleading with precision, particularly when amended pleadings recast factual allegations under multiple liability theories.

Case Summary

Fact Summary

The plaintiff’s live pleading alleged that Gregory Kevin Cline and others directly assaulted and battered him, causing serious bodily injury. The petition did more than assert derivative liability theories. It included a stand-alone “ASSAULT/BATTERY” section alleging that Cline and two others intentionally, knowingly, or recklessly made harmful or offensive contact, threatened imminent bodily injury, and proximately caused damages. The pleading also included separate “VICARIOUS LIABILITY” allegations framed around a meeting of the minds and unlawful overt acts, i.e., conspiracy-type allegations directed at coordinated conduct among multiple defendants.

Cline filed a no-evidence motion for summary judgment under Texas Rule of Civil Procedure 166a(i). But the motion targeted the elements of civil conspiracy, argued there is no independent aiding-and-abetting claim in Texas, attacked a theft claim, and challenged the basis for attorney’s fees and exemplary damages. The motion repeatedly focused on whether there was evidence of an agreement, combination, meeting of the minds, common objective, and specific intent sufficient to support conspiracy and related exemplary damages. It did not expressly challenge the essential elements of a direct assault claim.

In response, the plaintiff argued that the motion never moved against the assault-and-battery cause of action and therefore could not support summary judgment on that claim. The appellate issue turned on that procedural mismatch: the live pleading contained a direct assault claim, but the motion addressed only other theories.

Issues Decided

• Whether a no-evidence motion for summary judgment under Rule 166a(i) must specifically identify the elements of the asserted claim to support summary judgment on that claim.
• Whether a motion challenging only civil conspiracy and related exemplary-damages theories can dispose of a separately pleaded direct assault claim.
• Whether summary judgment may stand on claims that were expressly addressed in the motion, while being reversed as to a claim omitted from the motion.

Rules Applied

The court’s analysis rests on settled Texas summary-judgment law:

• Texas Rule of Civil Procedure 166a(i) permits a no-evidence motion only when it identifies the elements of a claim or defense for which there is allegedly no evidence.
• McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) holds that a summary judgment may not be affirmed on a ground not expressly presented in the motion.
• G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) reinforces that trial and appellate courts are confined to the grounds actually presented.
• The motion itself invoked United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 2017) for the elements of civil conspiracy, underscoring that the challenged theory was conspiracy—not direct assault.

The controlling procedural rule is straightforward but unforgiving: a no-evidence motion must target the claim actually pleaded, and courts may not use a motion directed at one theory to extinguish a different, separately asserted cause of action.

Application

The Beaumont Court of Appeals focused on the live petition and the text of the no-evidence motion. That comparison controlled the result. The petition plainly alleged direct assault and battery by Cline. Those allegations were not merely background facts supporting conspiracy; they were set out as their own cause of action, with allegations tracking the elements of assault and battery and requesting damages directly from the alleged assailants.

By contrast, Cline’s motion was drafted around conspiracy. It challenged the absence of evidence of a combination of persons, a common objective, a meeting of the minds, overt acts in furtherance of the agreement, proximate causation in the face of an asserted intervening event, and the mental state necessary for exemplary damages. It also argued against aiding and abetting, theft, and attorney’s fees. What it did not do was identify no evidence of direct assaultive conduct, no evidence of harmful or offensive contact, no evidence of threatened imminent bodily injury, or no evidence that Cline himself committed an assault.

That omission mattered because Texas summary-judgment practice is claim- and ground-specific. A movant does not obtain judgment on an unmentioned claim by arguing that the plaintiff lacks evidence on a related theory. Even when the factual nucleus overlaps, direct liability and conspiracy are analytically distinct. One turns on the defendant’s own tortious conduct; the other turns on agreement and concerted action. Because the motion never expressly presented a no-evidence challenge to assault, the trial court lacked a proper basis to render summary judgment on that claim.

The appellate court therefore parsed the judgment by claim. To the extent the trial court granted summary judgment on theories actually challenged in the motion, the judgment could stand. But as to the direct assault claim, the motion was procedurally insufficient, so reversal and remand were required.

Holding

The court held that a no-evidence summary judgment under Rule 166a(i) cannot be granted on a claim the motion does not expressly address. Because the plaintiff’s live pleading asserted a direct assault claim against Cline, and because Cline’s motion challenged only civil conspiracy and related theories rather than the elements of assault, summary judgment on assault could not stand.

The court accordingly reversed the judgment in part and remanded the assault claim for further proceedings. It affirmed the remainder of the judgment to the extent it related to claims that were actually presented in the no-evidence motion and properly disposed of on those grounds.

Practical Application

For family lawyers, the lesson is less about assault doctrine than about motion practice discipline. In family cases, pleadings evolve quickly: a divorce may include reimbursement, waste, fraud on the community, conversion of personal property, civil conspiracy among relatives or business entities, assault allegations relevant to conservatorship, and fee claims. If the respondent files a no-evidence motion after one amendment but before another, or drafts the motion around one theory while the live pleading contains a separate direct claim, Lankford gives the nonmovant a clean appellate issue.

This comes up often in at least four settings:

• Divorce with tort overlay: one spouse pleads assault, intentional torts, and community-property claims. A motion attacking only conspiracy to hide assets will not reach a separately pleaded assault claim.
• Custody litigation involving family violence allegations: a party may plead civil assault or seek related tort damages in a consolidated proceeding. A no-evidence motion must specifically address the assault elements if it seeks to eliminate that tort claim.
• Property disputes between spouses or former spouses: direct conversion, trespass to chattels, or assault claims may coexist with derivative conspiracy theories involving relatives, LLCs, or new partners. Each theory must be distinctly challenged.
• Enforcement and post-divorce litigation: amended pleadings frequently add stand-alone claims based on later conduct. Counsel should compare the motion to the current live pleading before submission and again before hearing.

The strategic point is simple: in Texas family litigation, never assume factual overlap equals procedural coverage. A targeted no-evidence motion should identify each cause of action by name and then list the exact elements allegedly lacking evidentiary support. Conversely, when defending against such a motion, first ask whether the challenged grounds actually reach every claim in the live pleading before spending pages marshaling evidence.

Checklists

Drafting a No-Evidence Motion That Actually Reaches the Case

• Review the live pleading on file at the time of submission, not merely the petition that existed when the motion was first drafted.
• List each cause of action by name in the motion.
• Identify the specific elements of each claim for which there is allegedly no evidence.
• Separate direct liability theories from derivative or concerted-action theories.
• If assault is pleaded, challenge assault elements expressly rather than assuming a conspiracy challenge subsumes them.
• Include a final section confirming that the motion seeks relief only on the claims and elements expressly identified.

Responding to a No-Evidence Motion in Family Litigation

• Compare the motion line-by-line against the current live petition.
• Determine whether any claims are unaddressed, partially addressed, or mislabeled.
• Preserve the argument that a motion cannot support judgment on a claim it does not expressly present.
• If helpful, state clearly in the response that a stand-alone claim remains pending because the motion targets only another theory.
• Still consider attaching evidence on overlapping claims if doing so advances the broader case strategy, but do not waive the threshold procedural defect.
• At the hearing, request a ruling limited to the grounds expressly stated in the motion.

Managing Amended Pleadings Before Submission or Hearing

• Calendar a final live-pleading check before the hearing date.
• If the petition has changed, amend or supplement the motion so it matches the operative pleading.
• Confirm whether newly added counts are independent claims or simply additional factual allegations.
• Avoid generic requests for judgment on “all claims” unless the motion substantively addresses all claims.
• If opposing counsel amends late, assess whether a continuance or amended motion is necessary.

Using Lankford in Tort-Inflected Family Cases

• In assault-based divorce or SAPCR litigation, cite Lankford when a no-evidence motion attacks only conspiracy, exemplary damages, or derivative theories.
• Use the case to argue that family-violence fact allegations do not collapse distinct civil claims into one umbrella theory.
• In property cases, apply the same principle to direct conversion or fraud claims that are omitted from a motion focused on conspiracy or reimbursement.
• On appeal, frame the issue as a Rule 166a(i)/express-presentation error, supported by McConnell and G & H Towing.

Family Law Crossover

The procedural mechanism here is the Rule 166a(i) no-evidence summary judgment, which requires the movant to specify the elements of the claim being challenged. The rule established by this decision is that a motion directed at one theory—such as conspiracy, derivative liability, or exemplary-damages predicates—does not authorize judgment on a different, separately pleaded direct claim. In family law, that issue commonly arises where a petition combines divorce or SAPCR relief with tort claims or property-related business torts. If the live pleading includes, for example, direct assault, conversion of community assets, fraud on the community, conspiracy to transfer assets, or other stand-alone theories, each must be expressly addressed in the motion. The crossover point is procedural precision: before hearing a no-evidence motion in a family case, counsel should map each challenged ground to the exact claim in the live pleading to ensure the motion reaches the relief sought and to preserve or defeat error on appeal.

Citation

Lincoln Lee Lankford v. Gregory Kevin Cline, No. 09-25-00108-CV, ___ S.W.3d ___ (Tex. App.—Beaumont Aug. 31, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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