Opinion filed May 6, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-08-00260-CV
                                        __________

                   DWIGHT GROSSETT, GLORIA GROSSETT,
                     AND R.P., A MINOR CHILD, Appellants

                                               V.

              KELLY GRIMSLEY AUTO GROUP, LTD., Appellee


                            On Appeal from the 161st District Court

                                     Ector County, Texas

                               Trial Court Cause No. B-121,499


                            MEMORANDUM OPINION

       Dwight Grossett, Gloria Grossett, and R.P., a minor child, sued Kelly Grimsley Auto
Group, Ltd. for damages and injuries they sustained in a single-vehicle accident. The trial court
granted Kelly Grimsley’s motion for summary judgment.           The Grossetts filed this appeal
contending in a single issue that the trial court erred because there were unresolved questions of
fact. We affirm.
       The Grossetts purchased a vehicle from Kelly Grimsley.          They alleged that, while
traveling on Highway 302, the vehicle began to accelerate on its own. Dwight applied the brakes
to disengage the cruise control, but it failed to disengage. He lost control of the vehicle and hit a
utility pole and two fences. The Grossetts contended that their accident was proximately caused
by Kelly Grimsley’s negligent failure to properly prepare the vehicle.
       Kelly Grimsley filed a combination traditional and no-evidence motion for summary
judgment. The trial court held that Kelly Grimsley was entitled to summary judgment but did
not specify which motion it was granting. For purposes of our review, it is only necessary to
consider the no-evidence motion. We review a no-evidence summary judgment under the same
standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.
2003). We examine the record in the light most favorable to the nonmovant and credit evidence
favorable to the nonmovant if reasonable jurors could, and we disregard all contrary evidence
and inferences unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,
310 (Tex. 2009).
       Kelly Grimsley contended that the Grossetts had no evidence that their vehicle’s cruise
control system failed.    A trial court must grant a proper no-evidence motion unless the
nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of
material fact. TEX. R. CIV. P. 166a(i). If the evidence is such that it would enable reasonable and
fair-minded people to differ in their conclusions, then it is more than a scintilla. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). The Grossetts were, therefore, required to
produce probative evidence of a system failure.
       The Grossetts filed a response and attached a document described as their expert’s report.
Kelly Grimsley correctly notes that the report did not name the expert or provide any evidence of
qualifications. It did not, however, object in writing to that report. Consequently, any objection
to the form of the Grossetts’ expert report has been waived.             TEX. R. CIV. P. 166a(f).
Furthermore, because the trial court did not rule on the report’s admissibility, we may not
consider its admissibility on appeal. Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 365
(Tex. App.—Houston [1st Dist.] 1994, writ denied).
       The Grossetts direct us to the following statement in that report: “The vacuum hose from
the manifold to the brake booster was found intact; however, a retaining clamp had been left
loose during some previous work.” This is some evidence of negligent repair, but it does not
establish that the loose clamp was responsible for the accident or that the cruise control system
failed. We have reviewed the entire report and find no evidence that the cruise control system

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failed or proximately caused the accident. Because the Grossetts failed to tender any evidence of
system failure, the trial court did not err when it granted Kelly Grimsley’s no-evidence motion
for summary judgment.
       The Grossetts’ issue is overruled, and the judgment of the trial court is affirmed.




                                                     RICK STRANGE
                                                     JUSTICE


May 6, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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