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Essex Crane Rental Corp. and Vincent A. Morano v. Eric G. Carter D/B/A Eric G. Carter & Associates

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DISSENTINGOPINION ON REHEARING

I withdraw my dissenting and concurring opinion dated August 25, 2011 and substitute this opinion in its stead. Because I would affirm the trial court’s granting of Carter’s and Farley’s no-evidence motions for summary judgment, I continue to respectfully dissent.

To prevail on a no-evidence motion for summary judgment, the movant must establish that there is no evidence to support an essential element of the non-movant’s claim. TEX. R. CIV. P.166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp.,994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Thereafter, the burden shifts to the non-movant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez,206 S.W.3d 572, 582 (Tex. 2006). “The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements.” Flameout Design & Fabrication,994 S.W.2d at 834. More than a scintilla of evidence exists if the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). However, “[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc.,650 S.W.2d 61, 63 (Tex. 1983). In determining whether a material fact exists, we may consider both direct and circumstantial evidence. Ford Motor Co. v.Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). “To raise a genuine issue of material fact, however, the evidence must transcend mere suspicion.” Id.”Evidence that is so slight as to make any inference a guess is in legal effect no evidence.” Id.

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