Phelps, James and Rascon, Julio D. v. Garcia, Efrain. ( 2013 )

AFFIRM; Opinion Filed October 31, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01169-CV
JAMES PHELPS, Appellant
V.
CLARENCE EDSALL AND MID SOUTH TRANSPORT, INC., Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-10-07686
MEMORANDUM OPINION
Before Justices O'Neill, Lang-Miers, and Evans
Opinion by Justice Evans
James Phelps appeals from a no-evidence summary judgment entered in favor of
Clarence Edsall and Mid South Transport, Inc. On appeal, Phelps contends the trial court erred
in granting appellees’ no-evidence summary judgment motion because there was sufficient
evidence in the trial court record to create fact issues concerning his negligence claims. We
affirm.
BACKGROUND
On November 3, 2008, Efrain Garcia’s vehicle and an 18-wheeler operated by Edsall, a
Mid South employee, collided on a highway. Following this initial collision, Garcia’s vehicle
struck Phelps’s vehicle. After the vehicles came to rest, Phelps exited his vehicle to check on the
occupants of Garcia’s vehicle. While walking back to his vehicle to retrieve his cell phone,
Phelps was struck by a vehicle driven by Juan Teniente.
Both Phelps and Julio D. Rascon, a passenger in Garcia’s vehicle, filed separate lawsuits
against numerous parties, including Edsall and Mid South, for injuries sustained in the accident.
Rascon’s case was subsequently consolidated with Phelps’s case. Appellees filed a traditional
motion for summary judgment on Rascon’s negligence claims. Rascon’s response included an
affidavit, deposition testimony and other evidence in support of his response. The trial court
denied the motion. Appellees then moved for summary judgment asserting both traditional and
no-evidence grounds as to Phelps’s negligence claims. Among other things, Mid South and
Edsall argued that Phelps failed to produce any evidence that: (1) his injuries were proximately
caused by Edsall; (2) Edsall breached any duty owed to Phelps; and (3) Edsall failed to keep a
proper lookout, apply brakes, maintain control over his vehicle and maintain a single lane of
travel. Phelps responded to the traditional summary judgment grounds but failed to respond to
the no-evidence grounds. The only evidence attached to Phelps’s response consisted of two
pages of his deposition testimony in which Phelps detailed his actions after the first accident.
The trial court signed an order granting appellees’ no-evidence motion for summary judgment.
Phelps brings this appeal. 1
ANALYSIS
I. Standard of Review
Once a party moves for summary judgment on the ground that no evidence exists to
support one or more essential elements of a claim or defense, the non-movant must produce more
than a scintilla of evidence raising a genuine issue of material fact on the challenged elements to
1
Rascon settled his claims with Mid-South and Edsall and nonsuited these parties. The trial court later
dismissed the case for want of prosecution as to the remaining claims.
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defeat the motion. TEX. R. CIV. P. 166a(i); Forbes Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists when the evidence “rises
to a level that would enable reasonable and fair-minded people to differ in their conclusions.”
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
The same legal sufficiency standard is applied in a no-evidence summary judgment as is
applied in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003). Accordingly, the evidence is reviewed in the light most favorable to the non-
movant, disregarding all contrary evidence and inferences. Id. at 751.
II. No Evidence of Negligence
In his sole issue, Phelps contends that the trial court erred in granting appellees’ no-
evidence summary judgment motion because the trial court record included sufficient evidence
to create fact issues concerning breach of duty and proximate cause. It is undisputed, however,
that Phelps failed to identify this evidence in his response. Instead, Phelps argues that because
the trial court had previously reviewed evidence Rascon submitted in response to appellees’
summary judgment motion against him, the court should have applied the same evidence to
appellant’s case and denied summary judgment. We disagree.
Rule 166a(i) explicitly provides that in response to a no-evidence summary judgment
motion, the respondent must present some summary judgment evidence raising a genuine issue
of material fact on the element attacked, or the motion must be granted. Although in his
response to the traditional motion for summary judgment Phelps requested the trial court to “take
judicial notice of all pleadings and motions filed in this case,” ordinarily a trial court is not
required to search the record without guidance from a party directing the trial court to specific
evidence in the record. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex.1989)
(general references to voluminous record did not direct trial court to evidence on which party
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relied); Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort Worth 2004, pet. denied)
(request that trial court take judicial notice of “the Court’s file” insufficient to guide trial court to
specific evidence relied upon); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st
Dist.] 1996, no writ) (trial court not obligated to search entire deposition attached to summary
judgment response). Phelps did not meet this burden merely because the evidence exists in the
trial court’s file then citing for the first time on appeal the specific evidence he failed to point out
to the trial court. Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 494 (Tex. App.—El Paso
1999, pet. denied) (holding that respondent failed to meet burden by the mere existence in the
trial court’s file of a response to an earlier summary judgment motion); Fears v. Texas Bank, 247
S.W.3d 729, 734-35 (Tex. App.—Texarkana 2008, pet. denied) (same). Accordingly, we
conclude the trial court did not err when it granted appellees’ no-evidence summary judgment.
CONCLUSION
We resolve appellant’s sole issue against him and affirm the trial court’s order.
/David Evans/
DAVID EVANS
JUSTICE
121169F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES PHELPS, Appellant On Appeal from the County Court at Law
No. 4, Dallas County, Texas
No. 05-12-01169-CV V. Trial Court Cause No. CC-10-07686.
Opinion delivered by Justice Evans.
CLARENCE EDSALL AND MID SOUTH Justices O'Neill and Lang-Miers
TRANSPORT, INC., Appellees participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees CLARENCE EDSALL AND MID SOUTH
TRANSPORT, INC. recover their costs of this appeal from appellant JAMES PHELPS.
Judgment entered this 31st day of October, 2013.
/David Evans/
DAVID EVANS
JUSTICE
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