Affirmed and Opinion filed August 22, 2002.
In The
Fourteenth Court of Appeals
____________
NO. 14-00-00098-CV
____________
CHARLES FINLEY MILLER and BERRY ROBERTS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LINDA ROBERTS, DECEASED, Appellants
V.
GENERAL MOTORS CORPORATION, ROPER MOTOR COMPANY, INC., JIMMY BANKS, EDWIN DEAN LAWRENCE, and WILL ALLEN LYNCH, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 95-57444
O P I N I O N
Appellant Berry Roberts appeals from a take-nothing judgment in a products-liability lawsuit against General Motors Corporation (AGM@). In seven issues, Roberts claims the trial court erred by (1) granting GM partial summary judgment based on the statute of limitations on several of Roberts=s claims and (2) granting GM a no-evidence summary judgment on Roberts=s remaining claims. We affirm.
I. Factual and Procedural Background
On November 24, 1993, Berry Roberts and her mother, Linda, were passengers in a Pontiac Firebird that collided head-on with a Chevrolet Silverado near Huntsville, Texas. Although Berry Roberts sustained only minor injuries, her mother suffered severe injuries and later died. On November 22, 1995, Roberts, both in her individual capacity and as representative of the Estate of Linda Roberts, filed suit against GM, the manufacturer of both the Firebird and the Silverado.[1] GM was not served, however, until May 1996. The lawsuit asserted claims for strict products liability, negligence, and breach of express and implied warranties.
On April 28, 1997, GM filed a motion for partial summary judgment, contending that Roberts=s claims for strict liability and negligence, along with her breach-of-warranty claim regarding the Silverado, were barred by limitations. GM=s motion for summary judgment was set for submission on June 16, 1997. Roberts did not respond, and on June 18, the trial court granted the motion. On July 21, Roberts filed a Motion for New Trial, Reconsideration and Rehearing in which she (1) offered an explanation for her failure to respond and (2) set forth her defenses to GM=s motion for summary judgment. On September 11, 1997, the court signed a second order granting GM=s motion for summary judgment and denying Roberts=s motion for new trial.
On September 4, 1997, GM filed a no-evidence motion for summary judgment under Texas Rule of Civil Procedure 166a(i) against Roberts=s remaining claims. GM=s motion was originally set for submission on October 20, 1997. After several resettings, the parties ultimately agreed on a submission date of March 30, 1998. Six days before submission, on March 24, Roberts filed a motion for continuance requesting an additional two weeks for her liability expert to complete an affidavit in response to the summary judgment motion. GM opposed the motion for continuance. On March 27, Roberts filed a reply in support of its motion along with a APreliminary Response@ to GM=s motion for summary judgment. On May 22, 1998, the trial court granted GM=s motion for summary judgment. The court ultimately entered a final judgment on October 29, 1999, dismissing all claims against GM with prejudice. This appeal followed.
II. Partial Summary Judgment B Limitations
In her fifth, sixth, and seventh issues, Roberts challenges the partial summary judgment in favor of GM based on the statute of limitations. As the summary judgment movant, GM has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We indulge every reasonable inference in favor of the nonmovant and take all proof favorable to the nonmovant as true. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Nixon, 690 S.W.2d at 548-49.
Actions for personal injuries, including wrongful-death and survival actions, are governed by the two-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. ' 16.003 (Vernon Supp. 2002). Roberts=s claims accrued on November 24, 1993, the date of the accident. Although Roberts filed her lawsuit on November 22, 1995, barely within the two-year period, GM was not served until six months later, on May 30, 1996. In its motion for summary judgment, GM argued Roberts is not entitled to rely on her filing date for limitations purposes because she did not use diligence in securing service. The trial court agreed. Roberts claims she raised issues of fact concerning (1) whether she exercised due diligence in serving GM and (2) whether the statute of limitations was tolled because GM fraudulently concealed Roberts=s claim.
A. Roberts=s Late-Filed Response
We first address the question of whether we should consider Roberts=s late-filed response to be part of the summary judgment record that was before the trial court when it granted summary judgment. GM=s motion for partial summary judgment was set for submission on June 16, 1997. Roberts did not respond, and the court granted the motion. One month later, Roberts filed a AMotion for New Trial, Reconsideration and Rehearing,@ asserting her failure to respond was excused because her counsel had an oral understanding with GM=s counsel that the submission date would be postponed. Roberts further set forth arguments relating to the grounds raised by GM in its summary judgment motion. On September 11, the court entered a second order granting GM=s motion. Because the court=s earlier order granting partial summary judgment was interlocutory, the trial court was free to change or modify it until the judgment became final. See Rush v. Barrios, 56 S.W.3d 88, 98 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). In the text of its September 11 order, the court also denied Roberts=s motion for new trial, but the court lined through language in the order that would have denied Roberts=s request for AReconsideration and Rehearing@ of the court=s earlier summary judgment.[2] We therefore conclude that the trial court considered Roberts=s late-filed response in ruling on GM=s motion for summary judgment.[3] Accordingly, we will review Roberts=s response as part of the summary judgment record.
B. Due Diligence
In her fifth issue, Roberts claims summary judgment was improper because GM did not establish the absence of a fact issue as to her diligence in issuing service. To Abring suit@ within the statute of limitations, a plaintiff must not only file suit within the applicable limitations period but must also use diligence to have the defendant served with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam). The date of service relates back to the date of filing only if the plaintiff exercises diligence in effecting service. Id. The summary judgment evidence conclusively shows Roberts did not diligently pursue service on GM, but rather intentionally delayed serving GM until after she obtained service on other defendants. In an affidavit attached to Roberts=s summary judgment response, the office manager for Roberts=s counsel admits Roberts made a tactical decision to serve the in-state defendants first to prevent GM from removing the case to federal court. However, once the limitations period has passed, a plaintiff must use due diligence to procure service on the defendant regardless of any reasons she may have for not wanting to do so. Broom v. MacMaster, 992 S.W.2d 659, 665 (Tex. App.CDallas 1999, no pet.). To hold otherwise would eviscerate the long-established due-diligence requirement and would ignore the goal of statutes of limitations to inform defendants in a timely fashion of claims against them. Id.; see also Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 428, 85 S. Ct. 1050, 1054 (1965) (AStatutes of limitations are primarily designed to assure fairness to defendants. . . . [E]ven if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation . . . .@). We overrule Roberts=s fifth issue.
C. Fraudulent Concealment
In her sixth issue, Roberts asserts she raised a fact issue regarding the doctrine of fraudulent concealment. Under this doctrine, a defendant is estopped from relying on the statute of limitations when the defendant fraudulently conceals the existence of a claim from a plaintiff to whom the defendant is under a duty to make such a disclosure. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). To toll limitations under the doctrine of fraudulent concealment, a plaintiff must show the defendant (1) actually knew a wrong occurred, (2) had a fixed purpose to conceal the wrong, and (3) did conceal the wrong from the plaintiff. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). To avoid summary judgment on limitations, Roberts must raise a fact issue to support her fraudulent-concealment assertion. Id.
We conclude fraudulent concealment does not apply in this case because GM was under no legal duty to disclose the existence of a cause of action to Roberts. Without a fiduciary relationship between the parties in this case, no such duty exists. See Seibert v. General Motors Corp., 853 S.W.2d 773, 778 (Tex. App.CHouston [14th Dist.] 1993, no writ). Even if, as Roberts asserts, GM had a duty to inform its customers of certain dangers regarding its seat belts, this duty to warn is unrelated to any duty to disclose Roberts=s claims. See id. Because Roberts failed to demonstrate a duty to disclose exists, she cannot rely on the doctrine of fraudulent concealment. We overrule Roberts=s sixth issue.
D. Motion for New Trial
In her seventh issue, Roberts complains the trial court should have applied the equitable test set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), and granted her motion for rehearing or new trial. In Medina v. Western Waste Industries, this court applied Craddock to a motion for new trial following the granting of an unopposed motion for summary judgment. 959 S.W.2d 328, 330-31 (Tex. App.CHouston [14th Dist.] 1997, pet. denied). Recently, the Texas Supreme Court expressly rejected the use of Craddock in this context, at least where the nonmovant had notice of the hearing and an opportunity to request either a continuance or leave to file an untimely response. See Carpenter v. Cimarron Hydrocarbons Corp., 45 Tex. Sup. Ct. J. 1031, 1033, 2001 WL 1902793, at *3 (July 3, 2002). Regardless of whether Carpenter would be controlling under these facts, the trial court considered Roberts=s late-filed response before entering a partial summary judgment order on September 11, 1997. Therefore, because GM=s motion for partial summary judgment on limitations was not unopposed, Craddock does not apply.
Instead, we review the trial court=s denial of Roberts=s motion for new trial for an abuse of discretion. See Superior Packing, Inc. v. Worldwide Leasing & Fin., Inc., 880 S.W.2d 67, 71 (Tex. App.CHouston [14th Dist.] 1994, writ denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam). Roberts=s only argument is that the trial court failed to apply the Craddock standard when ruling on her motion for new trial. Because Craddock is inapplicable, we find no abuse of the trial court=s discretion. Roberts=s seventh issue is overruled.
III. No-Evidence Summary Judgment
Next, Roberts raises four issues regarding the granting of a no-evidence summary judgment. GM filed a motion for summary judgment under Rule 166a(i) on September 4, 1997, against Roberts=s claims for breach of express and implied warranties relating to the purchase of the Firebird. GM argued there was no evidence raising a genuine issue of material fact on the elements of (1) existence of a defect and (2) causation. After several agreed resettings, the motion was eventually set for submission on March 30, 1998. On March 24, Roberts filed a motion for continuance requesting a two-week delay of the March 30 submission date, which GM opposed. Roberts filed a reply in support of her motion and a APreliminary Response@ to GM=s motion for summary judgment. Attached to this filing was an affidavit from Stephen M. Arndt, Roberts=s expert, describing documents he needed to complete his affidavit in response to GM=s motion and offering a Apreliminary opinion . . . about the death of Ms. Linda Roberts.@ On May 22, 1998, the trial court granted summary judgment in favor of GM. Roberts contends (1) the trial court erred in refusing to grant her motion for continuance with respect to the March 30 submission date, (2) Roberts presented sufficient evidence on the elements of her claim, (3) the trial court erred in refusing to grant her motion for rehearing, and (4) Rule 166a(i) is unconstitutional as applied in this case.
A. Motion for Continuance
In her first issue, Roberts claims the trial court erred in refusing to grant a continuance of the March 30 submission date. The granting or denial of a motion for continuance is within the trial court=s sound discretion, and we will not disturb the court=s action on appeal unless the record discloses a clear abuse of that discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Roberts advances several arguments why her motion for continuance should have been granted. However, A[t]he test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles.@ Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Accordingly, we review Roberts=s arguments not to determine if we would have ruled differently, but to determine if the trial court=s ruling was arbitrary or unreasonable. See id. at 242.
Roberts first contends a no-evidence motion should never be heard as long as discovery has not been completed. However, Rule 166a(i) does not require that discovery must have been completed, only that there was Aadequate time.@ Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). Trial courts have discretion to determine whether there has been adequate time for discovery in a particular case. See id. The adequacy of the time for discovery is determined by Athe nature of the cause of action, the nature of the evidence necessary to controvert the no-evidence motion, and the length of time the case had been active in the trial court.@ Id. By the time GM=s motion for summary judgment was submitted, Roberts=s lawsuit had been on file for well over two years, and the motion itself had been on file for nearly seven months. There is no indication Roberts did not have adequate time to discover facts relating to the existence of a defect and whether a defect caused Linda Roberts=s injuries. The trial court did not abuse its discretion in concluding an adequate time for discovery had passed.
Next, Roberts claims because this was her Afirst@ motion for continuance, the trial court abused its discretion by not granting it. We recognize that other courts have concluded a court=s discretion is somewhat limited with respect to a party=s first motion for continuance, particularly when the facts supporting the motion are not controverted. See, e.g., Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.CHouston [1st Dist.] 1989, writ denied). Even if we were to adopt a similar rule, however, Roberts=s motion is undeniably not her first motion for continuance. GM=s motion for summary judgment was originally set for submission on October 20, 1997. Roberts filed at least two motions for continuance before the motion for continuance that is the subject of this appeal. Each time, the parties agreed to continue the submission date, and the motion was ultimately set for submission on March 30, 1998. We conclude Roberts is not entitled to special treatment of her motion for continuance as a Afirst@ motion.
Roberts asserts she has an absolute right to additional discovery. While a party has a right to conduct discovery, that right is not unlimited. See Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995) (ABoth the plaintiffs and the defendants are entitled to full, fair discovery within a reasonable period of time . . . .@) (emphasis added). For example, a motion for continuance seeking additional time for discovery must, among other things, describe the evidence sought, explain its materiality, and show the party requesting the continuance has used due diligence to obtain the evidence. Tex. R. Civ. P. 252; Grace v. Duke, 54 S.W.3d 338, 343 (Tex. App.CAustin 2001, pet. denied). Roberts failed to show that the additional discovery she sought was material to the issues raised by GM=s no-evidence motion for summary judgment.
None of the other reasons advanced by Roberts suggest the trial court abused its discretion by denying her motion for continuance. The occasional absence of Roberts=s counsel during the time leading up to the date of submission, even if uncontroverted, does not require the granting of a continuance. Cf. Tex. R. Civ. P. 253 (stating that absence of counsel is not good cause for a continuance of a case that has been called to trial). The fact that Roberts requested only a short continuance does not deprive the trial court of its discretion in ruling on Roberts=s motion, particularly considering the history of the case and the numerous continuances and resettings that preceded the motion. Finally, while a court may consider lack of prejudice to the opposing party in ruling on a motion for continuance, it is not the other party=s burden to establish an absence of prejudice before the court may deny the motion.
We conclude the trial court did not clearly abuse its discretion by refusing to grant Roberts=s motion for continuance. Accordingly, we overrule Roberts=s first issue.
B. Did Roberts Raise a Fact Issue?
In her second issue, Roberts claims the trial court erred in granting a no-evidence summary judgment in the face of her APreliminary Response@ to GM=s motion. GM initially contends this evidence should not be considered part of the summary judgment record because the rules require the nonmovant to file affidavits or other written response no later than seven days before the hearing, A[e]xcept on leave of court.@ Tex. R. Civ. P. 166a(c). Although the motion was set for submission on March 30, 1998, Roberts did not file her response until March 27. GM claims the record does not show the court gave Roberts leave to file her response only three days before the submission date. We note, however, the trial court=s docket sheet contains an entry stating: A[Plaintiff]=s Mot[ion] for 2 weeks cont.: Granted until April 13, 1998.@[4] We believe this docket entry, dated the same day the court granted GM=s motion for summary judgment, indicates Aleave of court@ was, in fact, given to file Roberts=s March 27 response as part of the summary judgment record.
Roberts claims the evidence she presented with her March 27 response precluded summary judgment for GM. When reviewing the grant of a no-evidence summary judgment, we review the evidence in the light most favorable to the nonmovant and disregard all evidence and inferences to the contrary. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App.CHouston [14th Dist.] 1999, no pet.). A no‑evidence summary judgment is improperly granted if the nonmovant counters with more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence Arises 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) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)).
In her March 27 response, Roberts pointed to the following as evidence that created a fact issue, precluding summary judgment: (1) the affidavit of Stephen M. Arndt, Roberts=s expert on accident reconstruction; (2) Roberts=s deposition; and (3) the documents referred to by Arndt. With respect to Roberts=s deposition, we note the record does not reflect that a copy of this deposition was filed along with Roberts=s March 27 response or at any time before the submission date of March 30. Even if it were, Roberts did not direct the trial court to any excerpts or portions of the deposition that might establish facts supporting the existence of a defect or causation. Thus, Roberts=s deposition did not raise an issue of material fact on either element. See Walton v. City of Midland, 24 S.W.3d 853, 858 (Tex. App.CEl Paso 2000, no pet.) (finding summary judgment was proper where nonmovant attached some 500 pages of depositions and other evidence to his response without directing the court to specific evidence raising a fact issue).
We next look to Stephen Arndt=s affidavit, which was attached to Roberts=s March 27 response. In his affidavit, Arndt expresses the following Apreliminary opinion@ about Linda Roberts=s death:
Based upon reasonable scientific, engineering certainty, it is my opinion that Ms. Roberts received fatal injuries in such crash at least in part because of how the restraint system fit her. Ms. Linda Roberts, who was a short adult, being only 5 feet 2 inch tall, had her lap/shoulder restraint on at the time of the crash, as she sat in the left-rear seat. Ms. Roberts received fatal injuries to her chest, stomach and neck, which are consistent with a poor fitting restraint. These types of injuries can occur if the restraint system is not designed to route over the body in a manner that keeps the lap belt on the pelvis and the shoulder harness over the shoulder and off the neck. A proper fitting restraint for short statured adults can be achieved by the correct positioning of the lap belt anchor points and providing an ability to adjust the shoulder harness routing to achieve proper fit for a range of occupant sitting heights.
We conclude this affidavit does not present probative evidence of the existence of a defect or causation. According to Arndt, Linda Roberts=s injuries Aare consistent with@ a poor-fitting restraint system, and similar injuries can be caused by a poorly designed restraint. However, it does not logically follow, and Arndt=s affidavit does not establish, that Linda Roberts=s restraint system fit poorly because it was designed poorly. While a plaintiff can establish the existence of a defect using circumstantial evidence, there must be evidence of proper use of the goods together with a malfunction. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444-45 (Tex. 1989). Because Roberts failed to present any summary judgment evidence that Linda Roberts used her restraint system properly, she has not raised a fact issue concerning the existence of a defect. See id. at 444. Furthermore, because Arndt attributed Linda Roberts=s injuries to a poor-fitting restraint system, he failed to provide any causal link between her injuries and a defectively designed restraint system.
Finally, Roberts claims Athe documents referred to by Mr. Arndt@ created a fact issue as to liability and causation. In his affidavit, Arndt stated he reviewed Apreliminary photographs, the police report, medical records, death certificate, certain [GM] documents, excerpts from the Owner=s Manual, the deposition of Berry Roberts, and other information concerning [the Firebird].@ However, of these documents, the only ones that appear in the record as attachments to Roberts=s March 27 response are the two-page police report of the accident and Linda Roberts=s death certificate. Neither of these documents provide any evidence that the Firebird=s restraint system was defective or that this alleged defect caused Linda Roberts=s injuries.
Roberts contends we should also consider the summary judgment evidence she filed on May 22, 1998, the same day the trial court granted summary judgment, as well as evidence she submitted in connection with her motion for rehearing and in opposition to a summary judgment motion filed by GM=s co-defendant. It is undisputed that none of this evidence was on file on March 30, the submission date for GM=s motion. In ruling on a motion for summary judgment, the trial court may only consider evidence Aon file at the time of the hearing, or filed thereafter and before judgment with permission of the court.@ Tex. R. Civ. P. 166a(c). There is nothing in the record to indicate the trial court gave Roberts permission to file this evidence in response to GM=s motion. A trial court does not abuse its discretion by refusing to consider summary judgment evidence filed after the date for submission. See Abdel-Fattah v. PepsiCo, Inc., 948 S.W.2d 381, 385 (Tex. App.CHouston [14th Dist.] 1997, no writ).
We conclude the trial court properly refused to consider any evidence filed by Roberts after the submission date on GM=s motion for summary judgment. Even considering the summary judgment evidence Roberts submitted just three days before the March 30 submission date, Roberts did not raise a fact issue as to the existence of a defect and causation, two essential elements of her breach-of-warranty claims. Accordingly, we overrule Roberts=s second issue.
C. Motion for New Trial
In her third issue, Roberts asserts the trial court erred in refusing to grant a rehearing and new trial after the granting of the no-evidence summary judgment in favor of GM. Roberts=s sole argument is that she is entitled to a rehearing or new trial under the Craddock test because she acted in good faith, her failure to file a timely evidentiary response was not the result of conscious indifference, and the granting of a rehearing or new trial would occasion no delay or otherwise work an injury to GM. See Craddock, 133 S.W.2d at 126. As we note above, however, our supreme court has recently held Craddock does not apply to a motion for new trial following a summary judgment when the nonmovant had an opportunity to request either leave to file a late response or a continuance. See Carpenter, 45 Tex. Sup. Ct. J. at 1033. Here, Roberts clearly had notice of the March 30 submission date and, in fact, filed a motion for continuance in advance of that date. Accordingly, Craddock does not apply to Roberts=s motion for new trial following the no-evidence summary judgment. Instead, we review the trial court=s ruling for an abuse of discretion. See Superior Packing, Inc., 880 S.W.2d at 71. Roberts=s argument only addresses the trial court=s failure to apply Craddock, and she presents nothing to suggest the trial court otherwise abused its discretion. We overrule Roberts=s third issue.
D. Constitutional Claims
Finally, Roberts contends in her fourth issue the no-evidence summary judgment rule, as applied to her claims, violates the following provisions of the Texas Constitution: the open-courts provision, Tex. Const. art. I, ' 13; the right to trial by jury, Tex. Const. art. I, ' 15; and the due-course-of-law provision, Tex. Const. art. I, ' 19. For various reasons, we reject Roberts=s constitutional challenges.
1. Open Courts
Roberts claims Rule 166a(i) violates the open-courts provision in article I, section 13 of the Texas Constitution.[5] For this provision to apply, however, Roberts must (1) have a cognizable common-law claim that is being restricted and (2) show that the restriction is unreasonable or arbitrary when balanced against the statute=s purpose. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 902-03 (Tex. 2000). As Roberts admits in her brief, the only claims remaining in the suit are for wrongful death and survival damages. These actions are permitted only by statute, and thus Roberts has no common-law right to bring them. See Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995) (per curiam). Accordingly, Roberts cannot establish an open-courts violation. See id.
2. Trial by Jury
Roberts also complains Rule 166a(i) as applied to her claims violates her right to a trial by jury as set forth in article I, section 15.[6] In civil cases, the constitutional right to a jury trial is not absolute, but rather is regulated by those rules that specify its availability. See Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968). Although not clearly articulated in her brief, Roberts apparently contends she was improperly subjected to a Atrial by affidavit@ in the place of a jury trial. Under Rule 166a(i), after adequate time for discovery, the court can grant summary judgment against a party that fails to produce summary judgment evidence raising a genuine issue of material fact on one or more essential elements of a claim. Tex. R. Civ. P. 166a(i). To avoid summary judgment, the nonmovant is not required to marshal its proof; rather, its response need only point out evidence that raises a fact issue on the contested elements. Tex. R. Civ. P. 166a cmt. In the absence of a material fact issue, there is nothing to submit to a jury, and the granting of summary judgment does not deprive the losing party of its constitutional right to a jury trial. Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex. App.CTexarkana 2002, no pet. h.); Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 716-17 (Tex. App.CHouston [14th Dist.] 1987, no writ); see also Macklin v. City of New Orleans, 293 F.3d 237, 241 (5th Cir. 2002) (per curiam) (describing as Apatently frivolous@ a claim that summary judgment proceedings conflict with the constitutional right to trial by jury); Nathan L. Hecht, Opening Remarks to Symposium on Emerging Professional Responsibility Issues in Litigation, 41 S. Tex. L. Rev. 3, 4 (1999) (noting that Texas=s adoption of the no-evidence summary judgment rule Abrings Texas in line with the practices of the federal courts@). The trial court=s application of Rule 166a(i) did not violate Roberts=s right to trial by jury.
3. Due Course of Law
Finally, Roberts asserts the trial court=s application of Rule 166a(i) violated the constitution=s due-course-of-law provision.[7] Roberts relies on Clem v. Evans, 291 S.W. 871 (Tex. Comm=n App. 1927, holding approved), in which the court struck down a fraud statute in violation of the due-course provision. In Clem, the statute in question stated that, for certain types of promises, a person who made a promise and then failed to comply within a reasonable time was presumed to have committed fraud unless he or she established that non-compliance resulted from Athe act of God, the public enemy or by some equitable reason.@ Id. at 871-72. The Texas Commission of Appeals held that, by imposing a presumption of fraud that could only be overcome as specified, the statute denied those accused of fraud of their right to prove, as a complete defense, that they had no intent to defraud when the promise was made. Id. at 872. Roberts claims the no-evidence summary judgment rule deprived her of a fair and reasonable opportunity to rebut the Aunfair and overly burdensome presumption against [her] case.@ Unlike the statute in Clem, however, Rule 166a(i) imposes no presumption against Roberts, nor does it deny her any rights with respect to her claims, on which she bears the burden of proof. Roberts asserts only that Rule 166a(i) subjected her to a Atrial by affidavit.@ However, Rule 166a(i) does not require the nonmoving party to establish its right to relief, but merely present summary judgment evidence sufficient to raise a fact issue. Roberts has failed to establish a violation of article I, section 19.
We conclude that Rule 166a(i), as applied to Roberts=s claims, does not violate the open-courts, trial-by-jury, or due-course provisions of the Texas Constitution. We overrule Roberts=s fourth issue.
IV. Conclusion
Finding no error in either summary judgment granted by the trial court, we affirm the court=s judgment.
/s/ Joe L. Draughn
Senior Justice
Judgment rendered and Opinion filed August 22, 2002.
Panel consists of Justices Seymore and Guzman and Senior Justice Draughn.[8]
Do Not Publish C Tex. R. App. P. 47.3(b).
[1] Joining Roberts as a plaintiff in the trial court was Charles Finley Miller, another passenger in the Firebird. In addition to GM, the lawsuit named as defendants Edwin Dean Lawrence, the driver of the Firebird; Will Allen Lynch, the driver of the Silverado; Jimmy Banks, the driver of a car the Firebird was allegedly attempting to pass at the time of the accident; and Roper Motor Company, Inc., the company that sold the Firebird to Berry Roberts=s father. Only Roberts and GM are parties to this appeal.
[2] The September 11 order reads as follows:
ON THIS DAY came on to be heard [GM=s] Motion for Partial Summary Judgment and Brief in
Support Thereof, and Plaintiff=s Motion for New Trial, Reconsideration and Rehearing
with Regard to Partial Summary Judgment Granted in Favor of [GM], and the Court
. . . finds that GM=s Motion for Partial Summary Judgment should be, in
all things GRANTED and Plaintiff=s Motion
for New Trial, Reconsideration and Rehearing with Regard to Partial
Summary Judgment Granted in Favor of [GM] should be in all things DENIED; and,
it is therefore accordingly,
ORDERED, ADJUDGED and DECREED, that GM=s Motion for Partial Summary Judgment be and the same is hereby GRANTED in its entirety, that judgment is hereby entered in favor of GM as to all of Plaintiffs= strict liability and negligence claims, as to all of Plaintiffs= claims based on breach of implied and express warranties regarding [the Silverado] . . . , [and] that Plaintiffs take nothing against GM regarding these claims . . . .
It is further ORDERED, ADJUDGED and DECREED, that and [sic]
Plaintiff=s Motion for New Trial, Reconsideration and
Rehearing with Regard to Partial Summary Judgment Granted in Favor of [GM]
be and the same is hereby DENIED in its entirety.
[3] Our conclusion is bolstered by an entry on the court=s docket sheet stating A[Plaintiff]=s Mot[ion] for Reconsideration: Granted.@ The trial court apparently never signed an order ruling on Roberts=s motion for reconsideration. We recognize a docket entry cannot take the place of a court order. See Pickell v. Guaranty Nat=l Life Ins. Co., 917 S.W.2d 439, 441 (Tex. App.CHouston [14th Dist.] 1996, no writ). However, a docket entry may supply facts for our consideration, provided the entry does not contradict a judicial order. See N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977). Here, the docket entry supports our conclusion that the trial court considered Roberts=s late-filed response before granting partial summary judgment on September 11, 1997.
[4] Despite this notation, no order appears in the record granting Roberts=s motion for continuance. The court=s docket entry cannot take the place of such an order. Pickell, 917 S.W.2d at 441.
[5] AAll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.@ Tex. Const. art. I, ' 13.
[6] AThe right of trial by jury shall remain inviolate.@ Tex. Const. art. I, ' 15.
[7] ANo citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.@ Tex. Const. art. I, ' 19.
[8] Senior Justice Joe L. Draughn sitting by assignment.