Sonnenberg v. Mike Smith Auto Plaza

EARL B. STOVER, Justice,

concurring. Some two years ago, I was concerned about the effects of the Texas Supreme Court’s adoption of Tex.R. Crv. P. 166a(i), which, in effect, shifts the burden from the movant, who previously had to establish his right to summary judgment as a matter of law, to the non-movant, who now must present sufficient summary judgment evidence to create a fact issue. See Ruiz v. Government Employees Ins. Co., 4 S.W.3d 838, 839 (Tex.App. — El Paso 1999, no pet. h.). However, my initial concerns, for the most part, have been alleviated. In the intervening two years, there have been numerous rulings on the subject matter, and I now feel that the motions are being approached by trial judges with careful consideration after permitting ample time for discovery. It appeal's that motions for summary judgment based on Rule 166a(i) are not granted “unless they are black and white and sealed in wax.”

My initial impression of this case, which I expressed during oral argument, was that it involved an attorney, who, perhaps, caught up in the holiday season, may have failed to file a proper response to a Rule 166a(i) motion for summary judgment. However, I was in error. After a thorough analysis of the case, I find, under the Rule 166a(i) standard, there is, indeed, “no evidence,” or no more than a scintilla of evidence, to support a cause of action based on products liability or alleged violations of the Deceptive Trade Practices Act. Although the efforts of appellant’s attorney are commendable, he nonetheless cannot create evidence where none exists. Neither may we base our decision on mere suspicion or surmise. Thus, I concur in the majority’s affirmance of the summary judgment.